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Scoping and planning a project

There are two distinct stages to planning a Bill project—

• The first stage is to decide what should go in the Bill and how it should fit into the legislative programme so far as both timing and theme are concerned.
• The second stage is to plan how that Bill will be produced against the timetable set for it.
  

OPC can contribute to both stages of the planning in one or more of the following ways—

• making an assessment of the scale of the drafting task for each of the different components proposed for the Bill;
• advising on how the project will fit for OPC into the preparation of the legislative programme as a whole;
• contributing to an assessment of the risks for the production of the Bill against a particular timetable;
• advising on the taking of steps to avoid or mitigate those risks.
  

At both stages the essential thing to remember is that Bills, or rather the Acts they become, can achieve only one thing and, as such, can therefore have only one objective - to change the law. Changing the law can itself only achieve a limited number of things, as follows—

• it can establish new institutions and reorganise existing ones and it can confer capacity on them to act in particular ways;
• it can confer powers to do things where there were previously no powers;
• it can affect behaviour by requiring conduct of a particular kind or by modifying the consequences of inaction;
• it can affect behaviour by prohibiting conduct of a particular kind or by modifying the consequences of action;
• it can regulate the making of determinations and the exercise of discretions;
• it can regulate and set conditions for each of the above.
  

There is an interesting debate to be had about the extent to which an Act of Parliament can also, indirectly, effect a cultural change: a change in the way people think and feel (eg about racial discrimination). What is clear is that the law’s only tools for effecting cultural change are those set out above, coupled of course with the respect for the law that already exists, at least amongst the law-abiding.

The planning for a Bill project can often be assisted by a recognition of the sort of project that is being attempted.

Sometimes the contents of a Bill will be wholly dictated by the need to give effect to a single particular policy, perhaps as part of a larger scale policy project. The Bill will consist of a series of legal propositions all directed at securing a single coherent outcome. The Identity Cards Bill was a good example of this sort of Bill.

More often than not a Bill will consist of a number of changes of law that are needed for one or more particular policy objectives, coupled with a number of other changes that it is convenient to associate with the first set of changes, either because they relate to the same subject-matter or have a similar theme, or just because the Bill provides a legislative opportunity to tidy up a particular area of business. It is also common to have a Bill that contains a number of unconnected and diverse contributions to a single major problem. (A standard Criminal Justice Bill would usually be a Bill in one or other of the two categories described in this paragraph).

It is important when planning a Bill project to ensure that the project is going to be deliverable at a time and in a form which will—

• fit with the rest of the legislative programme and meet the requirements of the business managers; and
• meet the policy and political objectives of departmental Ministers.
  

These two do not always lead to the same conclusions; and problems are often caused by over-optimistic assessments of how the two can be brought in due course to coincide.

Risks that need to be assessed include, in particular—

• the risk that it will be difficult to obtain collective agreement to components of the legislative scheme;
• the risk that attempts to add new topics to the Bill will be made at a late stage;
• the risk that the process of securing collective Ministerial agreement or a consultation with outside stakeholders will result in major changes of policy;
• the risk that the detail of the policy will require longer to work out than expected;
• the risk that the introduction of the Bill before it is ready will—
• embarrass both the departmental Ministers and the business managers, with the Bill being justifiably criticised as “half-baked”; and
• involve an excessive number of Government amendments in the House, to the detriment of the legislative programme as a whole.¹⁴
  

These risks are greater if they materialise at a late stage; and it is a feature of legislation that these risks — and the risk that they will arise late in the day — tend to be greater the more controversy surrounds the relevant component of the policy and also, often, the more important it is as part of the policy story.

However, it is also worth remembering that the political importance of a provision may not always mean that it is important for the structure of the drafting. It is always sensible, where instructions are being delayed for a particular decision, to consult Counsel about whether the decision really does have to be made before the instructions on related matters can be tackled.

A number of general points about project planning have emerged from the lessons learned exercises that have been run on Bill projects. Points that have been made from experience by departmental Bill teams have included the following

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14. The legislative programme proceeds with the co-operation of the Opposition parties and back benchers so long as the fund of good will available to the business managers across the programme is not exhausted by the use of too much debating time for Government tidying up. It is this factor that means that one under prepared Bill can have an impact on the ease with which other Bills can complete their Parliamentary stages.