OPC’s responsibilities and strengths
Counsel in OPC have various responsibilities that may appear at times to create a tension between their own objectives and the immediate objectives of the department.
- 1st PC and all the other Counsel share a responsibility to the Government to deliver the legislative programme as a whole. This involves a close working relationship with PB Committee and PB Secretariat and with the Government business managers and their officials. It means, for example, that Counsel may have to draw attention to respects in which this responsibility conflicts with what is wanted for a particular Bill. It also means that 1st PC may have to deploy Counsel in a way that gives priority to the programme over the immediate interests of a particular Bill.
- The Counsel in charge of a Bill has a responsibility, for meetings of PB Committee, to brief the Law Officers on matters of legal policy to which a Bill gives rise, including matters involving the rule of law, retrospectivity and matters involving fundamental rights and freedoms including those arising under the European Convention on Human Rights (“ECHR”).9 This responsibility extends to amendments in the House requiring PB Committee clearance.
- In this context, Counsel in OPC also have a particular responsibility to do their work in a way that protects the integrity of the statute book and of the legislative process generally. The need to protect the process and to secure the effectiveness of legislation more generally may sometimes conflict with what is wanted for a particular Bill.
- Counsel in OPC are advocates within the system for the policy of the government to make legislative proposals and legislation accessible both to Parliamentarians and to the ultimate users of the statute book. This includes a responsibility to promote clear legislation written in plain language that can be easily understood, meets better-regulation principles [External website] and, in particular, does not result in unnecessary litigation.
- Counsel’s relationship with the Public Bill Offices (“PBO”s) in the two Houses enables Counsel to offer advice to the department on any matter that is likely to cause difficulty with the House authorities, but equally requires Counsel to be candid with the House authorities about such matters.
These different responsibilities are a strength of the system. Although they may create tensions with immediate departmental interests, they enhance the process and improve the output. Counsel can advise the departmental team about dealings with the business managers, with PB Committee and its secretariat and with the Law Officers.
The most experience of Bill work to be found anywhere in Whitehall is in OPC. Departments are able freely to draw on this experience. Different departmental teams will be more familiar with the process than others. It is helpful for an instructing department to make clear, at an early stage, the extent of the additional help with the process they think they will need from OPC.
These are the things Counsel in OPC are able to bring to a legislative project.
- They have plenty of experience of how legislative projects are planned and managed. They can help departments set realistic timetables for a project, and they can advise on the management of priorities and risk. They can advise on when instructions can be delivered in instalments in advance of Ministerial decisions and when the whole process will have to await a particular decision.
- They have special expertise in the analysis of the structure and content of legislative proposals. This enables them to detect the sort of inconsistencies or flaws in a legislative scheme which will put the scheme at risk when the legislation reaches the courts.
- One of the challenges for those new to legislation is managing the freedom which the doctrine of Parliamentary sovereignty provides to the legislator. Counsel in OPC are able to assist departments to understand how best to use this freedom and to appreciate the parameters within which it can be exercised.
- They also provide an outside, critical perspective. They have a challenge function and set out, by questioning, to help departments test their proposals, and so avoid the problems that can arise subsequently either in Parliament or in the courts. As a project develops, there are risks from getting too close to it, particularly the risk of losing the original clarity of direction as competing objectives have to be reconciled. Counsel in OPC are sometimes in a better position to be able to spot difficulties of this sort.
- They have considerable experience and technical expertise when it comes to crafting the wording to produce clear, simple and unambiguous propositions that fit into the structure of the existing law.
- They share common drafting standards and practices which have been developed and tested within the community of drafting experts that constitutes OPC.
- Their familiarity with Parliamentary procedure enables them to structure legislation to fit the requirements of Parliamentary debate and to comply with the rules of procedure.
- Counsel in OPC have access to a large body of learning about legislation and about the procedure and practice within government and in Parliament that applies to legislative proposals.
- They also have ongoing business relationships with the officials in both Houses (particularly in the PBOs), with the officials in PB Secretariat and with the officials who work to the Government's business managers
- They also have working relationships with the Office of Scottish Parliamentary Counsel in Edinburgh, the Office of Legislative of Counsel for Northern Ireland in Belfast and the Legislative Counsel for Wales.
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- These are now generally covered in the ECHR memorandum the department must prepare for PB Committee and agree with Law Officers two weeks before the meeting (and if the matter is settled between the department and the Law Officers, OPC will not seek to revisit it before PB Committee).