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Importance of good communications

The principal and essential requirement for an efficient partnership between Counsel and a departmental team is good communications. This involves the acceptance of reciprocal requirements both the department and for Counsel.

Requirements from the department

Here is what the department need to do—

• to make clear what service they want from Counsel;
• to ensure that Counsel understands the political, legal and factual context in which they are making their proposals and how any legislative proposals are to fit into any wider implementation plan not involving changes to the law;
• to ensure that their legislative intentions are clearly explained to Counsel in sufficient detail to enable Counsel to give effect to them without having to improvise on policy matters;
• to be frank about what compromises have been made, and how conflicting objectives have been reconciled, in the process of preparing instructions;
• to explain why policy options that Counsel might think provide a neater solution have been discarded. It is particularly important that the department should mention any ideas they have rejected on the basis of assumptions about drafting issues;
• to read the drafts provided by Counsel critically and very carefully so as to check that Counsel has properly understood their intentions;
• to supplement the results of that exercise with a response to any commentary provided by Counsel with the draft;
• to remember, when commenting on a draft, that it will have to be understood without Counsel’s commentary when it has been enacted
• not to take for granted that Counsel has understood their wishes or the political context in which a provision is required
• to comment on a draft by explaining what they want the draft to do and what they think it may not do, rather than by asking what its effect is - as a preliminary to deciding what they want it to do;¹¹ and
• to alert OPC to any comments in Parliament or any PQs that specifically relate to the technical aspects of the drafting of the Bill.

Requirements from Counsel in OPC

Here is what Counsel in OPC need to do—

• to let the department know promptly which Counsel are allocated to a project.
• to keep the department regularly informed about the progress of the work in OPC on the project;
• to be willing to predict when drafts should be expected and to explain as soon as possible if the timetable appears to be slipping and why;
• to make sure that what the department have said about what they want is clear and has been understood, and to question anything in the instructions that causes doubt;
• to communicate the department’s policy, as understood, in an unambiguous legislative form, and to explain in a commentary where decisions have been made about what was meant by the department;
• to explain how the draft works and why a particular drafting approach has been adopted whenever the department ask;¹²
• not to volunteer explanations or require the department’s endorsement of drafting decisions for which the drafter needs to take responsibility; and
• to consider the department’s comments with an open mind, alert to the possibility that Counsel and the department may be at cross purposes or that a seemingly bad point may actually be prompted by a thought that represents a good one.

Requirements from both the department and Counsel

It is important that Counsel and the department keep each other informed, at the earliest opportunity, of any matter affecting the planning and deadlines for a legislative project, including—

• the diversion of team members in the department or OPC onto other tasks, or their potential diversion onto other tasks;
• the availability at different times of all relevant contacts in the department and OPC, and their contact details;
• other risks affecting the delivery of instructions or of drafts;
• the expected times of PB Committee, presentation and of different stages of a Bill in each House; and
• all serious proposals for additions to the contents of the Bill or for omissions and subsequently for Government amendments.
  

Sometimes Counsel is the first to hear about something, and often it is the department who hear first. So there needs to be a system for the OPC team and the departmental team to keep each other informed.

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11. An attempt to draft for a policy that is uncertain is likely to produce a draft that is unclear.
12. It is only appropriate to volunteer an explanation of drafting decisions (for which Counsel needs to accept responsibility) where it is necessary to do so to check that the instructions have been properly understood or, more rarely, where there are other reasons why an explanation would help the department to do their part of the job on the Bill.