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Other Legal Issues

Compatibility with EU Law

13.1 At the earliest possible stage in preparation of any Bill, consideration should be given to the EU implications of what is proposed and legal advice should be obtained on whether there is any potential conflict with EU law.

13.2 Consideration should also be given to whether the Bill should be notified to the European Commission as a draft technical regulation under Directive 83/19/EEC, as amended by Directive 94/10/EEC.

13.3 In both cases, Bill legal advisors should consult Cabinet Office Legal Advisors (COLA), who can provide detailed guidance, ideally before and certainly no later than the time at which instructions go to Parliamentary Counsel.

Legal challenge to actions carried out under legislation

13.4 The Treasury Solicitor's Department offers guidance to departmental legal advisors on steps which can help reduce the risk of legal challenge to actions carried out under a piece of legislation: see ‘The Judge Over Your Shoulder’ [External website].

13.5 Points to be aware of include:

• to reduce the risk of challenge, legislation should be expressed in the clearest possible language. Courts are reluctant to interfere with an action which is clearly in accordance with the express wish of Parliament. Courts will also be influenced by provisions such as those providing for avenues of appeal;
• legal advisors and Parliamentary Counsel should be alerted to aspects of policy which are likely to attract opposition, so that the Parliamentary Counsel can focus on the likely areas of technical challenge. In case of difficulty legal advisors should seek the Law Officers' advice, and should do so as early as possible in the drafting process;
• where there is a history of legal challenges being mounted in a particular area, there may be advantage, after consulting Parliamentary Counsel, in instructing outside Counsel expert in the field;
• memoranda submitted to a Cabinet Committee seeking policy decisions should draw attention to any perceived risks of legal challenge. Memoranda accompanying Bills submitted to Legislation Committee should draw attention to any steps taken to reduce such risks.

Retrospectivity

13.6 Where a department proposes to include a provision that would be retrospective, they must first seek the consent of the Law Officers, and Legislation Committee will want assurances that this has been granted before it approves a Bill for introduction.

13.7 There area few small exceptions to this requirement, so in the first instance departments should discuss their proposals with officials in the Attorney General's Office. Departments should do this as early as possible, in case the Law Officers are not prepared to give their consent and the department will need to develop alternative proposals.

13.8 Any amendments to the Bill after introduction that would have retrospective effect would need to be agreed with the Law Officers in the same way – though such amendments are unlikely to be agreed to by Legislation Committee.