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Last updated: 07 May 2010
As part of the policy formulation process, the departmental team will need to keep in close contact with their opposite numbers in the UK offices which work with the devolved administrations and, as appropriate, as appropriate with the devolved administrations themselves. In the case of Scotland the Office of the Scottish Advocate General ("OSAG") will always have an interest from the UK perspective in proposed changes to the law affecting Scotland, and the department will need to work closely with them, from an early stage, before instructions are prepared.
In addition, the OPC team will have opposite numbers in Scotland, Wales and Northern Ireland. The arrangements under which Counsel in OSPC and the legislative counsel in Northern Ireland and Wales are involved in UK legislation are different in each case.
SPC(UK) is the team of drafters in OSPC designated to work on UK matters. Some of the Scottish Parliamentary Counsel in SPC(UK) may also work on other matters to the Scottish Executive. Occasionally other drafters in OSPC are allocated to help SPC(UK); but when they do so, they also don a UK hat and work to OSAG (and, hence, to the UK Government) on that matter. Scottish Parliamentary Counsel working to OSAG will provide technical advice and assistance to OPC on the Scottish aspects of any drafting which extends to Scotland (whether the subject matter is devolved or reserved). On policy matters they will normally expect Instructions from OSAG. In most cases, of course, the matters on which they are instructed will have been the subject of consultation between the Scotland Office and the Scottish Executive.
SPC(UK) will work closely with OPC in the production of provisions which are to have effect in Scots law. Where separate or different provision is required for Scotland, SPC(UK) very often provide a draft for incorporation by OPC into a Bill to be placed before the Westminster Parliament. They will also assist OPC where the provisions of a Bill have to be framed in such a way as to exclude need for a legislative consent motion in the Scottish Parliament.
The relationship between OSAG, SPC(UK) and OPC is close and both the OPC team and OSAG will be happy to advise in any case about how matters should be handled.
The Office of Legislative Counsel work to the Northern Ireland Executive and have to give priority to its work. However, subject to that, they provide assistance to OPC, at a purely technical level, on the integration of UK statutes relating to devolved and non-devolved matters into Northern Ireland law. This may sometimes involve drafting specifically Northern Ireland provisions. When Northern Ireland Counsel work on a UK Bill, they do not work to the Northern Ireland Office unless arrangements have specifically been made to that effect with the Northern Ireland Executive; and so, on matters of policy, they generally look to officials in the Northern Ireland departments (rather than the NIO) for their instructions.
There is a member of OPC, currently Nigel Rendell, who works for some of his time with the Welsh Legislative Counsel and therefore to WAG; but he also works on UK matters the rest of the time. At the moment, neither Nigel nor other Welsh Legislative Counsel are involved on a regular basis on behalf of the UK Government with Welsh aspects of UK legislation. Other Welsh legislative counsel work exclusively to WAG. Nigel may be consulted from the UK perspective by members of OPC and also by the Wales Office about legislative matters affected by Welsh devolution. Arrangements are in place for ensuring, when there are consultations of this sort, that UK questions are referred to someone other than Nigel if, after consultation with WAG, there appears to him to be a sufficiently real potential for a conflict of interest to arise.
Sometimes, when a matter relates to a Welsh matter the department, in consultation with lawyers in the Wales Office, may ask lawyers in WAG's legal service to instruct OPC directly on that matter. This is likely to be where the expertise is in WAG and the matter is one on which WAG and the UK Government have reached an agreed policy position. When that happens, Legislative Counsel in Wales are not directly involved and the instructions will be treated as if they were delivered on behalf of the relevant UK department. Correspondence and drafts from OPC will be copied to the departmental and the Wales Office contacts, who should also have been copied the instructions and been identified in them.
