Where does legislation come from? Policy formulation to drafting.
I have posted a few threads on twitter recently which have tried to explain a little about the differentiation between policy issues and drafting issues in legislation. I am very conscious that often criticism of legislation can suggest that something is badly drafted when on closer exploration what the critic really has concerns about is the policy which underpins the legislation.
Part of this problem arises because many people are unaware of the drafting and policy formulation processes and refer to drafting to cover all of it. There is a hint of this in the Financial Times article last night where it was said by one interviewee that
“These laws come into force almost the moment they are released, and they’re drafted in secret, by small committees … You inevitably are skewing the focus towards the interests of the people around the table.”
This conflates drafting with policy formulation, and the reference to drafting in secret by committees appears not to be about drafting at all but about the development of policy.
I have taught statutory interpretation and legislation for a number of years and have tried to make where legislation comes from clearer to students. I had some experience myself working in the Scottish Law Commission formulating policy and instructing some small parts of bills, but I have been fortunate to draw heavily on colleagues from the Parliamentary Counsel Office in the Scottish government who have contributed to the teaching of our introductory first year class for LLB students, and contribute to a Legislation (honours) class we run which focuses on interpretation of legislation and drafting.
This year we have ended up making handouts a lot fuller than in previous years and so I thought it might be useful to share the text of the part of the handout I have prepared on policy formulation and drafting which tries to explain some of the issues I have referenced on twitter for first year Scottish law students. I appreciate this is something of a simplification but hope that it gets the key ideas across.
A — Where does legislation come from?
The purpose of this section is to get you thinking about where legislation comes from, in terms of ideas and policies, the preparation of legislation, and the way in which it is enacted. Being aware of these factors is important when you read and construe legislation because it helps you understand the constraints under which legislation is prepared, and some of the factors which go towards the eventual wording used. This also helps you understand who legislation is written for, the impact this has on concepts of legislative intention (which underpin various approaches to statutory interpretation) and on the approach to construction and interpretation of legislation.
So where does legislation come from?
Any piece of legislation begins as an idea.
Where do these ideas come from?
Manifesto commitments
Work done in government departments
Individual MPs or MSPs (either personal ideas or lobbied by groups outside)
Civic society
Pressure groups
Law reform projects carried out by Scottish Law Commission or Law Commission for England and Wales
Responding to events (eg coronavirus, Olympics, terrorism)
How do you convert an idea into a policy that can be made into law?
Most policy ideas which end up in legislation involve the development of policy by the government but the points raised here apply generally in policy formulation because if policy is not thought through with detailed consideration the end product of legislation will potentially be too wide for the purpose required, or not wholly satisfactory.
You need to tease out the idea and ask probing questions about what has to be done to achieve and implement it.
What does the idea seeks to achieve, the way to implement and consequences of doing so? Who or what will this affect? People or things or places? When will it affect them? Where will it affect them? How will it affect them?
This expands to consider the impact on people, things, and places not intended to be directly affected by the idea.
You need to consider the impact on particular groups (the Equality Act 2010 identifies various protected characteristics and considering the impact on these should be carried out)
You need to consider the financial and economic impact, or impact on business.
Each stage of this helps you develop your policy, help you determine whether you need a law at all, what possible options are available to carrying out these policy ideas.
Once ideas are worked up often they are consulted on.
There can be a consultation paper or consultation document. At UK level when ideas were worked up in a preliminary way the government would publish a green paper, or if worked up policy ideas in a more detailed way a white paper.
Sometimes the idea may generate some policy ideas and work on policy analysis and evaluation, and taking evidence on the existing problems and how to address them, may be passed to independent reviews.
Sometimes these are detailed formal processes such as royal commissions. Sometimes an independently chaired review supported by government staff, such as the committee on Conveyancing legislation and practice chaired by Professor JM Halliday, which reported in 1966, and which made recommendations ultimately implemented by the Conveyancing and Feudal Reform (Scotland) Act 1970 and the Land Tenure Reform (Scotland) Act 1974. Sometimes matters are referred to the Scottish Law Commission or the Law Commission of England and Wales, government funded law reform bodies set up under the Law Commissions Act 1965. As well as receiving references to look at topics from the government the Scottish Law Commission and Law Commission for England and Wales set out their own general ideas for policy work by having programmes for law reform which determine their work for fixed periods of time.
When policy ideas are worked up by the Scottish Law Commission or Law Commission for England and Wales preliminary ideas were consulted on via a consultative memorandum or consultation paper but now are consulted on using a discussion paper. The final ideas from the Scottish Law Commission or Law Commission for England and Wales are published in a report.
How do you convert policy into legislation?
The bill team — working up policy and instructions
In government there is a bill team which comprises policy advisers working within the civil service and lawyers from the government (in Scotland, the Scottish Government Legal Directorate). The bill team works up the policy and consults with the lawyers who review the existing law, and assess whether new law is necessary and consider potential areas of reform. The lawyer also acts as the point of communication between the bill team and the drafter (parliamentary counsel). The lawyer will identify gaps in the policy, or contradictions. The lawyer should be an expert in the policy area. The lawyer prepares instructions to parliamentary counsel. In the instructions the lawyer translates the policy and identifies with parliamentary counsel what the new legislation is attempting to achieve, highlighting the law in which the legislation must fit.
The role of parliamentary counsel — drafting the legislation
The drafters of legislation work in Parliamentary Counsel Office, and work in teams. Parliamentary counsel are civil servants working for the Scottish Government. The drafter prepares the legislation, and determines its structure, the wording of the legislation, and will critically analyse the instructions and identify gaps in thinking and policy. Parliamentary counsel come from various backgrounds, and it will be unusual for the drafter to be an expert within the specific area in which the legislation is to be prepared. However, drafters are experts in how legislation works, and how it applies. Parliamentary counsel will prepare drafts of provisions. The draft legislation is known as a draft bill.
The interaction between parliamentary counsel and the bill team
Parliamentary counsel will send the draft bill to the lawyer and the bill team. The bill team will review the draft to ensure that the bill implements the policy. Sometimes gaps in the policy arise during the drafting of the bill, gaps and problems in policy will be exposed by trying to formulate the policy in legislative language. This process will go on for some time until the draft bill is ready to be introduced as a bill into Parliament.
When the bill is ready in Scotland it is submitted to the Presiding Officer’s office at the Scottish Parliament for vetting to ensure it is within legislative competence because when in parliament any bill requires a certificate from the presiding officer to confirm whether in the presiding officer’s view it is within or outwith legislative competence. (For discussion of this see Chris McCorkindale and Janet Hiebert, “Vetting bills in the Scottish parliament for legislative competence” (2017) 21 Edinburgh Law Review)
Once the bill is in Parliament the interaction between policy team and parliamentary counsel continues as consideration is given to evidence on the bill, stakeholder responses, policy issues arising, matters discussed in parliamentary consideration, leading to amendments of the bill, and consideration of amendments introduced by parliamentarians.
The parameters of drafting — constraints on the drafting of provisions
When parliamentary counsel is drafting legislation remember counsel operates subject to various constraints. These are usefully summarised in Francis Bennion, “Statute law obscurity and the drafting parameters” (1978) 5 British Journal of Law and Society 235 and in Francis Bennion, Statute Law (3rd edn, 1990), chapter 3.
Bennion divides the constraints into type broad categories: preparational drafting parameters; and operational drafting parameters.
The preparational constraints relate to satisfying the bill team with the drafts, satisfying the minister who is responsible for piloting the bill through parliament, and getting the bill through parliament. He mentions procedural legitimacy; timeliness; comprehensibility; debatability; acceptability; and brevity.
The first constraint is procedural legitimacy ensures the bill complies with rules of parliamentary procedure (which impacts on the form of the bill), and formal requirements (such as the vetting of legislation before introduction to ensure it is within legislative competence in the Scottish Parliament).
The second constraint is the impact of timeliness which indicates the general time pressures of preparing and passing legislation. Every year there is a legislative programme set out by the government (at UK and Scottish level). In the Scottish Parliament legislation can run through the whole of a parliamentary session but in the UK Parliament unless special savings are made legislation will fall at the end of a parliamentary year. Legislation has to be prepared to fit within these timetables, and then to work within broader issues of timetabling which take place during the parliamentary process (for example, how many days consideration a bill has at each stage of the parliamentary proceedings (the stages are considered below)).
Timetabling can cause particular problems in other situations, for example, where there is an emergency and legislation is needed quickly. The coronavirus legislation at UK Parliament and Scottish Parliament level in 2020 (Coronavirus Act 2020, Coronavirus (Scotland) Act 2020, Coronavirus (Scotland) (No 2) Act 2020) was prepared at great speed to respond to the requirements to introduce various schemes for a number of areas of law (look at the contents for each piece of legislation and see how many legal areas are covered) and to ensure there was legislative support for lockdown regulations. This legislation was needed quickly, and given the speed, and complexity, required multiple drafters to work on them. Looking at this legislation can you compare the legislation looks with other legislation you have looked at and consider whether you can see any signs which show you how quickly the legislation was prepared, and are there any signs which show that many drafters and drafting teams were involved in working on them?
Time pressures are especially relevant before a bill enters parliament, but continue when a bill is being considered in parliament.
The third constraint Bennion identifies is comprehensibility. Bills are passed by parliamentarians and so the bill has to be comprehensible to them, preferably within the terms of the bill itself (but comprehensibility can be aided by supporting documentation, of which more follows). Comprehensibility impacts not just on language and the use of clear plain language if at all possible, but on the structure of the legislation (and see also the discussion of debatability below on this). This needs to be considered alongside the operational parameters detailed below.
The fourth constraint is debatability. A bill is considered within parliament and is subject to debate. When a bill is being considered by parliament debates tend to take place in the order of the bill (although sometimes topics are grouped together in different ways for debates). But this means that the big debates on bills should arise before subsidiary debates. This impacts on the structure of legislation as it ensures the topics which generate the big debates come before the subsidiary topics. This leads to the advice from Thring that the key propositions and principles should be at the start of the bill (see Thring’s Practical Legislation (3rd edn, 2015) at pp 45–47). But this advice goes beyond being merely useful for parliamentary debating. It helps the reader of legislation too.
“In short, the test of the arrangement of an Act or Part as respects the principle is this: If the reader, after mastering the first two or three sections, comprehends the whole drift of the Act or of the Part, the Act or Part is in that respect well arranged. The Act or Part is, as regards principle, ill-arranged in proportion as the principle is distributed throughout a number of sections, and broken up by conditions and provisions from which the reader has to extract it bit by bit.
“This arrangement is to be recommended both for parliamentary and for practical reasons. It enables Parliament to decide at once on the principle of an Act unembarrassed by the consideration of details, and it places before the reader at the outset a clear view of the law intended to be enacted, without the confusing intermixture of the conditions under which — and the mode in which — the law is to be administered. The principle thus being settled, the conditions can be considered separately, and no confusion arises between objections of principle and objections of detail.”
Thring’s Practical Legislation (3rd edn, 2015) pp 46–47.
The fifth constraint is acceptability. The objective is to ensure that the legislation is framed in a way which is acceptable to the various parties involved in the legislative process (from the beginning of the preparation of the bill), including the bill team, the lawyer in the bill team, the minister who is responsible for the bill, the law officers, the cabinet, commentators, parliamentarians, pressure groups, and civic society. This has an impact on the way legislation is framed. The language used is neutral. It avoids provocations.
The sixth constraint is brevity. Given the pressures on parliamentary time, and the potential for each provision in a bill to be subject to debate legislation is framed in as concise a way as possible. Although, too much concision will impact on the comprehensibility of a provision. Compression of language can cause obscurity with provisions attempting to cover too many different things in one place. Some of the problems encountered will be seen when ambiguity is considered in the context of interpretation later in the class.
The next broad category of constraints on the drafting carried out by parliamentary counsel are referred to by Bennion as operational parameters. He identifies four constraints that impact on the drafting of legislation and how it will work once passed, and with the way it will fit into the broader legal system as part of the statute book. The factors are: legal effectiveness; certainty; comprehensibility; and legal compatibility.
Legal effectiveness relates to ensuring the policy objectives that have been worked are implemented and that the legislation will do what the bill team want it to do. This requires the drafter to have understanding and familiarity with the canons of construction of legislation (the approach to interpretation of legislation which is examined later in this section) and to ensure that the language used ensures, so far as possible, that in construing legislation the provisions will operate as they are intended to.
In drafting legislation parliamentary counsel uses language in a way to try to narrow down possible meanings that run counter to the objective of the legislation and hence has the objective of making the meaning of the legislation as certain as possible. Securing certainty of meaning is often an objective in the drafting of legislation.
Legislation is to be comprehensible. To that end legislation is drafted in plain language (see pp 1–6 of Parliamentary Counsel Office, Drafting Matters! (2nd edn, 2018) https://www.gov.scot/binaries/content/documents/govscot/publications/advice-and-guidance/2018/12/drafting-matters/documents/00543712-pdf/00543712-pdf/govscot%3Adocument/00543712.pdf?forceDownload=true And legislation is drafted in a way that is to be best for the ultimate end user. So, in ensuring comprehensibility of legislation it is necessary to take into account who the users of legislation are. FAR Bennion, in Understanding common law legislation (2001) pp 69–71 suggests that legislation is drafted for lawyers, as the study and reading of law is an expertise. This accords with his previous view that
“it should be a prime axiom of legislation that, unless there are overriding reasons to the contrary, language which is destined to form part of the law should be framed solely with that end in view. In other words, it should be worded in the most effective way possible to secure that it fits properly into the structure of the statute book” (quoted in Statute law chapter 3).
However, this view needs to be read alongside the judicial view expressed by Lord Diplock in Black-Clawson International Ltd v Papierwerke Waldhof-Aschaffenberg AG [1975] AC 591, at p 638. He said,
“The acceptance of the rule of law as a constitutional principle requires that a citizen, before committing himself to any course of action, should be able to know in advance what are the legal consequences that will flow from it. Where those consequences are regulated by a statute the source of that knowledge is what the statute says. In construing it the court must give effect to what the words of the statute would be reasonably understood to mean by those whose conduct it regulates.”
Thus, in the view of Lord Diplock legislation should be drafted in a way in which it is comprehensible to the layperson. The idea of the intended audience of the legislation has not been examined in as much detail as one would expect in the UK context. One academic who has written on this in recent years from a theoretical perspective is Dr Paolo Sandro. For enthusiasts see his “To whom does the law speak? Canvassing a neglected picture of law’s interpretive field” in M Araskiewicz, P Banas, T Gilbert-Studnicki and K Pleszka (eds), Problems of Normativity, Rules and Rule Following (2015), ch 20. Dr Sandro notes the importance of the layperson as the user and target of legislation. The view that is taken on this issue as to who the legislation is written for, and for whom it has to be comprehensible, has implications for the canons of construction and the approach to interpretation which is discussed later in this section.
The final constraint identified by Bennion is that of compatibility, the idea that legislation which is drafted should fit with what is there before. It should cohere with what has gone before, and should be compatible with it. This requires the drafting of legislation to be informed by what the existing law (be that legislation or common law) is. In the UK legislation develops in a piecemeal way, and there is no constantly updated statute collection where all legislation on a particular area is gathered together. If there was such an approach compatibility would be an easier thing to secure, but when legislation covering an area can have come from a large spread of years (sometimes decades, sometimes centuries, apart) then it is a harder task. Sometimes this can be done by tearing things down and starting again. Sometimes this is done by tweaking what is there previously. Sometimes this is done by considering the surrounding legislation and principles and trying to prepare something modern, which is in keeping with the background. Each approach has its merits.
The idea of “fit” and the importance of “coherence” is something you will consider in classes on jurisprudence and legal theory, particularly in the context of legal reasoning and judicial decision making. ”Fit” is associated with Ronald Dworkin, in particular in his book Law’s Empire. And Neil MacCormick in Legal reasoning and legal theory and Rhetoric and the rule of law discusses the idea of coherence in legal reasoning.
Advanced reading on instructions and drafting
For information on instructing legislation see Parliamentary Counsel Office, Guidance on instructing Counsel: common legislative solutions (2018) https://www.gov.scot/binaries/content/documents/govscot/publications/advice-and-guidance/2018/01/guidance-instructing-counsel-common-legislative-solutions/documents/00530013-pdf/00530013-pdf/govscot%3Adocument/00530013.pdf?forceDownload=true
For guidance on drafting legislation see
Parliamentary Counsel Office, Drafting Matters ! (2nd edn, 2018) https://www.gov.scot/binaries/content/documents/govscot/publications/advice-and-guidance/2018/12/drafting-matters/documents/00543712-pdf/00543712-pdf/govscot%3Adocument/00543712.pdf?forceDownload=true
Office of the Parliamentary Counsel, Drafting Guidance (June 2020) https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/892409/OPC_drafting_guidance_June_2020-1.pdf
Various jurisdictions around the world have manuals on instructing legislation and on drafting. The links are gathered by the Commonwealth Association of Legislative Counsel https://www.calc.ngo/drafting-manuals-and-other-resources
There are various books on drafting legislation which are helpful to look at as they give you a sense of common solutions adopted in drafting legislation, which can assist in reading and interpreting legislation.
Thring, Thring’s Practical Legislation: The composition and language of Acts of Parliament and Business Documents (3rd edn, 2015 ed M MacKenzie and D Purdie) — the classic text
I McLeod, Principles of Legislative and Regulatory Drafting (2009) — a very readable text which has helpful discussion on instructions as well as on drafting.
H Xanthaki, Drafting Legislation: art and technology of rules for regulation (2014)
H Xanthaki, Thornton’s Legislative Drafting (5th edn, 2013)
(but in considering books on drafting legislation remember the words of Daniel Greenberg, former parliamentary counsel in his review of Thornton’s Legislative Drafting (2014) 35 Statute Law Review 101
“I have always been an outspoken opponent of anything that purports to provide a manual of how to draft legislation. To determine how dangerous manuals can be, one needs only to look at provisions that have clearly been drafted by someone who has tried to follow a prescriptive manual rather than to think creatively about the needs of the target audience.”
