Parliamentary Counsel

Main navigation

Role of Counsel in relation to policy-making

In the context of the different strengths of the OPC and departmental teams, questions sometimes arise about the role of Counsel in policy-making. It is important for departments to understand what is likely to be the default position of the OPC team. It will be one of cautious detachment. It may be possible, however, in the case of a particular project for something different to be worked out between the OPC team and the departmental team where that seems appropriate.

Even in their normal default role, Counsel will often be able to make a significant contribution to policy-making. Their professional expertise and experience can help them to identify and test the consistency and coherence of different policy options, to analyse proposed legislative structures and to identify factual permutations, avoidance possibilities and technical solutions for particular problems. Their insight into the Parliamentary process and into the practice of the courts when interpreting and applying legislation may also be of value in this process. So they may be able to draw attention to a proposal that is likely to attract particular difficulties either in Parliament or the courts.

One way in which Counsel can sometimes help departments is by pointing out that innovative or direct legal solutions about which a department might otherwise have felt inhibitions are permissible and draftable after all. This is why it is often helpful to involve Counsel in a project early on, and why instructions should explain the reasoning behind a decision to reject an apparently attractive or obvious solution.

Departments need to establish an understanding with Counsel that enables both Counsel and the department to know the contribution to policy-making which the department expect from Counsel and would like. Counsel and the department then need to respect the agreed parameters.

Where a greater than usual contribution to policy-making is sought from Counsel, there needs to be a clear understanding that enables the department to know in what capacity points are being made at different times - viz when Counsel are giving authoritative advice and when they are merely adding a perspective as a fellow team member.

So, for example, where a Counsel identifies an uncatered for permutation in the instructions, that should not be taken as necessarily constituting policy advice that the permutation must be dealt with. It is likely to be no more than advice, given in the Counsel’s “challenge” role, that the permutation needs to be thought about in the context that will result from the Bill.

So, whether to make provision for a permutation identified by Counsel is a question of policy. It will depend on the circumstances whether Counsel can contribute any experience or expertise to making that decision, and whether a contribution is wanted by the department. Counsel may want to point out the impact of dealing with the permutation on the simplicity of the legislative scheme. But that is unlikely to be determinative. The decision may also depend on matters of which Counsel has no knowledge eg an assessment of risk based on a knowledge of practice on the ground. Assessing the risk and how to deal with it is an area where it will be appropriate for the departmental team to deploy their particular strengths.

The principle is that Counsel will attempt, so far as possible, to help the department wherever Counsel’s specialist perspective or obligation to the integrity of the statute book is relevant. Counsel will be careful not to arrogate policy-making functions to themselves, particularly in areas outside the area of their specialism. Counsel may be willing to go further than this; but they will not wish to accept an invitation to participate in policy-making where its acceptance would put at risk their ability to discharge their primary function of securing the robustness of the policy by the provision of independent challenge. The value of such challenge is a significant part of the justification for involving Counsel in the process. Where Counsel feel the need to hold back on these grounds, they will explain their reasons to the department.

Counsel’s expertise is obviously likely to be more useful to policy-making where the policy is directed primarily at a legal outcome, rather than at a practical one. Clearly, all Bills are supposed to produce legal outcomes; but in the case of some they merely provide the framework for facilitating the implementation of policy by practical means, while, for others, the legal outcomes are the main point of the exercise.

Even where purely legal outcomes are sought, it is still comparatively rare for drafting considerations to dictate a particular policy solution. Where a decision has to be made about the correct balance in policy making between comprehensiveness and simplicity, that is likely to involve an element of policy judgement, as well as drafting. Most solutions are draftable, even if the result in some cases may be presentationally unacceptable. So a drafter is rarely going to be able to answer the question “Which policy is easier to draft?” in a way that will facilitate the policy-making process.

Departments are sometimes uncertain about whether elements of the detail of the policy are for them or for Counsel to determine eg on the form of enforcement or of Parliamentary control for SIs. However matters of technical detail of this sort which involve a choice are all ultimately matters of policy for the department. Counsel will certainly be able and willing to contribute to the decision on the detail by identifying both the options and some or all of the factors that the department will wish to take into account in choosing between them; but it is for the department and their Ministers to make the decision about what is wanted.

All these considerations mean that Counsel are likely to doubt the legitimacy of straying beyond the challenge role without an express invitation, and are likely to feel more comfortable and more useful when confining themselves to that role. On the other hand, departments should feel able to ask Counsel for whatever help they need.

Finally and importantly, Counsel will always accept a responsibility to contribute what they can to the solution of the problems they themselves have identified.