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Briefing Ministers on the work of OPC

The drafting of a Bill is much more than a straightforward technical process that can be performed relatively quickly once the main outlines of the policy have been resolved. It is an intellectual and creative process, not a mere translation into formal wording. There is a risk that departmental officials, wishing to reassure Ministers that everything is under control, will inadvertently communicate a misconception about this.

Drafting almost any Bill takes time and nearly always at least 3 rounds of drafting: with the drafters commenting on the instructions and the department asking for modifications of the resulting draft. For a large Bill it is not unusual to need as many as 8 or even more successive drafts of the Bill.

Each round takes time for OPC. It will take at least a couple of months for a normal sized OPC team to produce a first draft of a medium sized Bill - even assuming that they are free to give all their time to it. And it is rarely possible for a department to consult and turn round comments on a draft in less than 10 working days. Sometimes when collective Ministerial decisions are required or outside stakeholders have to be consulted, it may take much longer. Planning for each round also needs to allow for time for the OPC team to respond to a set of comments, and that will depend on how extensive they are. For this reason, it is important that Ministers are briefed on how time consuming the drafting process will be.

It may be convenient for an opportunity to be found by the department for the Counsel in charge of a Bill to be introduced at an early stage to the Minister who is taking the lead on it. This draws attention to the fact that the drafting process has begun and may be waiting upon decisions. It also gives the Counsel in charge of a Bill an opportunity to hear, first hand, what the Minister wants from the project and to explain to the Minister—

• the work that is involved;
• how it is going to be carried out;
• the nature of the services being provided by OPC to the Minister;
• what is important about them; and
• what is needed to make the project a success.
  

This can help to facilitate understanding when Counsel have to identify drafting issues or constraints that emerge later in the process.