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Last updated: 08 July 2009
40.1 Resource pressures within departments often lead to Bill teams being disbanded rapidly after Royal Assent. This is unfortunate, as much work remains to be done and is often better done by Bill team members who are familiar with the Bill than by policy colleagues who have not been so closely involved with the Bill (and for whom this work may be of lesser priority).
40.2 There will be much for Bill teams to do immediately after Royal Assent, such as making preparation for regulations or other secondary legislation; explanatory material or guidance; forms; and publicity. Work should begin well in advance during the quieter periods of the Bill's passage, particularly where there will be a need to consult with others on text or clear it with legal advisors.
40.3 Any statutory instruments will be drafted by the legal adviser on instructions given by the policy team and will be subject to such Parliamentary procedures as have been provided for in the Act. Frequently, draft statutory instruments will have been published during the Bill's passage through Parliament. Where the subordinate legislation raises issues of exceptional importance the Minister may have to obtain collective agreement. Guidance on preparing secondary legislation can be found in “Statutory Instrument Practice” [External website]. It is one of the tasks of the Office of the Parliamentary Consel to vet any subordinate legislation which amends primary legislation. It may also be possible to make arrangements with the Office of the Parliamentary Counsel concerning other subordinate legislation to be made under an Act, for instance, where there are particularly complicated transitional provisions. Contact on such issues should be made, on first instance, with First Parliamentary Counsel.
40.4 Where new legislation has a significant impact on business or the third sector, the Government has committed to publishing guidance 12 weeks before regulations come into effect. This commitment was reiterated in the Government's consultation, Next Steps on Regulatory Reform, in July 2007. Departments should strive to meet this commitment wherever possible, as absence of timely and good quality guidance may result in extra costs for business and the third sector, e.g. seeking professional advice about what to do in order to comply with the new law. Production of guidance should be factored into the Bill team's delivery plan.
40.5 Guidance should not simply repeat the material already available in the Explanatory Notes, although some material from the Explanatory Notes may be relevant. The aim of guidance is to give external organisations a clear idea of how the new law will affect them and what they need to do in order to comply with it. Unlike the Explanatory Notes, it does not need to cover the entire Act, but only those parts which are likely to have an impact on external organisations. For further advice on preparing guidance, contact the Better Regulation Executive in BERR on 020 7215 1921.
40.6 Where the new legislation is likely to have a particularly significant impact on external organisations, it is good practice, where appropriate and reasonable, to publish guidance in draft during the Bill's passage. Draft guidance will help business and the third sector, and MPs and Peers, to better understand the impact on business and the third sector, thus assisting proper Parliamentary scrutiny. It will also give business and the third sector more time to make any adjustments necessary for when the Act comes into force. However, before publishing any draft guidance, departments should consider carefully the degree to which the draft guidance is subject to change as a result of Parliamentary scrutiny or any other means. To avoid issuing conflicting or confusing messages about what is required to comply with the new legislation, draft guidance should not be published until there is a reasonable degree of certainty about the final form of the Bill.
40.7 Publication of draft or final implementation guidance will not normally require clearance by Legislation Committee, but may require clearance through the relevant policy Committee of Cabinet. Legislation Secretariat on 020 7276 0242/0135 can advise whether collective agreement is needed. Even if formal clearance is not required, Bill teams should ensure that they consult with other Government departments as appropriate.
40.8 Where guidance has been published in draft, it should normally be reissued after Royal Assent with any revisions necessary to reflect amendments made to the Bill during its passage. However, where the Bill has not been significantly amended, it may be sufficient to remind interested parties of the existence of the material provided earlier.
40.9 Guidance may include notes for practising solicitors, accountants and others who advise the public.
40.10 All guidance should be available in a range of formats that are accessible, as appropriate and reasonable, e.g. departmental websites (as well as local authority websites if appropriate), leaflets etc. To ensure high levels of market penetration, guidance should also be published on or linked to the HMRC website, businesslink.org, and any wider publicity (see below) should draw attention to the guidance.
40.11 Guidance or instructions may also need to be issued within Government itself, for example to ensure that other interested departments receive up-to-date copies of any Transposition Notes.
40.12 Press or Information Officers will normally look after publicity about the passing of the Bill but they will need the advice of the Bill team about Press Notices. Some Acts may result in a flood of enquiries to Press Office in which case they will need to have good working arrangements with the Bill team. If the Minister is holding a press conference on the new Act, a brief will be needed or perhaps notes on the main questions likely to be asked, and someone from the Bill team should attend. Press advertisements as well as a Press Notice may be required.
40.13 It may be appropriate to publish a leaflet to explain the Act to members of the public whose rights or duties may be extended or diminished thereby. All leaflets should be checked by the legal advisor for accuracy, but the design and language of the leaflet is often best undertaken by specialist editorial/design staff.
40.14 Statutory and other bodies may be directly affected by the Act, and circulars may be needed explaining the Act and drawing their attention to any action they should take or prepare to take as a result. The aim should be to send out such circulars by the time the Act becomes effective, and particularly by an appointed day.
40.15 Forms may have to be designed for completion either on behalf of statutory or other bodies or by members of the public. The difficulty of designing them so that they cover all necessary points without becoming unintelligible or impossibly cumbersome is notoriousand it will be advisable to involve design specialists at an early stage. Guidance should be sought from experts within departments or from Government Communications in Cabinet Office. All Government forms should be pre-tested with a representative sample of users before being issued and all forms to be sent to businesses should be cleared with the “Departmental Forms Gatekeeper”.
Registration and custody of Bill papers
40.16 Every department will have its own system for filing Bill papers. Their importance will be obvious in preparing later legislation on the same subject, in the administration of the Act, and during post-legislative scrutiny: for all Acts gaining Royal Assent since 2005, the department responsible for implementing the legislation must, 3-5 years after Royal Assent, submit a Memorandum to the relevant Select Committee setting out how the Act has worked out in practice and whether its objectives have been achieved, to allow the Select Committee to decide whether to carry out fuller pre-legislative scrutiny. The objectives will be as set out in the Explanatory Notes, Impact Assessment and any Ministerial statements made to Parliament during passage of the Bill.
40.17 The difficulty of keeping papers in order during the critical phases of the legislative process is obvious, and sometimes impossible; but busy periods are usually followed by relatively easier ones when a member of the Bill team should be responsible for gathering together and filing the last batch of important papers. A useful working rule is that all incoming original documents should be directed to one focal point on the Bill team; they should in particular not remain with the legal adviser.
40.18 Bill papers start at the moment when legislative proposals are endorsed by the Minister and finish with the record of Royal Assent.
40.19 Finally the Bill team should consider writing a ‘Lessons Learned’ paper for the reference of future Bill teams in their department, and should also check that the description of the Bill at http://www.commonsleader.gov.uk/ [External website] remains an accurate description of their Act and alert Legislation Secretariat to any changes that need to be made to the entry (which will be retained on the website). Copies of the ‘Lessons Learned’ paper should be sent to Legislation Secretariat for possible incorporation into future editions of the Cabinet Office Guide to Making Legislation.