Secretariats website
Last updated: 08 July 2009
9.1 The most important part of preparing a Bill is the drafting itself. This is undertaken by the Office of the Parliamentary Counsel (“OPC”) on the basis of instructions provided by departments. Departments must allow OPC sufficient time for drafting and remember that, even when instructions have been provided, it cannot be assumed that drafting work will begin right away as the Parliamentary Counsel assigned to the Bill may already be working on another Bill.
9.2 Instructions should be sent to OPC to the timetable agreed with Legislation Secretariat so that the Bill is ready for introduction at the start of the session in a form that requires no or few amendments to be made during its passage through Parliament.
9.3 For this reason, instructions can only be sent to OPC when a Bill has been allocated a slot in the programme by Legislation Committee or Legislation Committee has otherwise given drafting authority for the Bill, and if the policy to be enacted by the legislation has collective agreement. Collective agreement from the relevant policy committee of Cabinet will also be required before OPC can draft any additions to the Bill as previously agreed by Legislation Committee.
9.4 Once a Bill has been allocated a slot in the programme or given drafting authority, Legislation Secretariat will arrange a meeting with the Bill team and lead legal advisor, Parliamentary Counsel, and the Secretariat of the relevant policy Committee of Cabinet, to agree a timetable for preparation of the Bill. This will include deadlines for the department to send drafting instructions to Parliamentary Counsel and for it to settle outstanding policy questions, and will form the basis of the Bill delivery plan.
9.5 Legislation Secretariat will arrange further meetings with the Bill team and Parliamentary Counsel during preparation of the Bill. The frequency of these meetings will depend on the level of progress that is being made. At these meetings, Legislation Secretariat will seek confirmation that instructions:
9.6 Legislation Secretariat will also ask Bill teams to complete the template giving a one-page summary of the content, timetable and handling of the Bill. However, Bill teams and departmental legal advisors will be in regular contact with Parliamentary Counsel in between meetings with the Secretariat as the drafting of clauses progresses and Parliamentary Counsel comes back with queries for the Bill team, and it is likely that Parliamentary Counsel will want to have a number of separate meetings with the Bill team/legal advisors to discuss detailed drafting points.
9.7 This chapter highlights some of the main points Bill teams should know about instructing Parliamentary Counsel. Members of the Government Legal Service can access a more detailed guide issued by the Office of the Parliamentary Counsel, Working with the Parliamentary Counsel, on the primary legislation section of the LION intranet site (the intranet for Government legal advisors), or copies can be requested from the Office of the Parliamentary Counsel.
9.8 Different members of the Office of the Parliamentary Counsel have different preferences for how they prefer to communicate with departments – some prefer to channel all communications through the lead legal advisor, others will prefer to contact the Bill manager directly where necessary. There are no “rules” – Bill teams and Parliamentary Counsel working on a bill should use whatever works best for them.
9.9 Parliamentary Counsel are specialist lawyers experienced in drafting legislation and will be responsible for actually writing the text of the Bill. While they do not comment on policy as such, they will advise on whether it is workable as a piece of legislation (including based on their experience of drafting previous Bills). They may do so on a contingent basis before policy clearance is obtained, to save time later on.
9.10 Parliamentary Counsel work in teams of two or three, and depending on the size and complexity of the Bill each Parliamentary Counsel team may be working on two or three Bills simultaneously, as well as being responsible for drafting amendments to Bills currently going through Parliament.
9.11 Given these competing priorities for drafting, it is important that Parliamentary Counsel's time is used effectively and that Parliamentary Counsel is involved in project planning from an early stage. While Parliamentary Counsel will always make best efforts to produce draft clauses as quickly as is reasonably possible, departments should not assume that Parliamentary Counsel will be able to draft new provisions at very short notice.
9.12 As well as drafting the Bill, the Parliamentary Counsel allocated to a Bill is responsible for a number of other matters mentioned in this guide, and is the channel of communication with the officials of both Houses. Parliamentary Counsel will occasionally ask to meet with the Bill Minister to discuss a handling point.
Importance of meeting deadlines
9.13 Departments should be careful not to underestimate the time needed for drafting or the complexity of turning legal instructions into workable draft clauses: while some provisions may be straightforward to draft, others may throw up any number of difficulties which need to be resolved before draft clauses can be produced. Bill teams must build sufficient drafting time in to their delivery plans. Bill teams should work back from Parliamentary Counsel's estimate of how long the Bill will take to draft, to identify by when they will need to deliver instructions to Parliamentary Counsel, and by when policy leads will need to deliver policy instructions to departmental legal advisors (who prepare the drafting instructions to Parliamentary Counsel).
9.14 Drafting is a complex process and often throws up new and unforeseen questions which must be resolved before drafting can continue. Again, time needs to be factored in for this, as rushed drafting may result in defective legislation. This not only fails to deliver the Government's policy but also reflects badly on Ministers and their departments. Equally, drafting may reveal that some issues are more cross-cutting than had been realised initially and will require the department to go back and seek agreement from other departments with an interest. The earlier instructions are with Parliamentary Counsel, the better, as it leaves more time to resolve any emerging issues.
9.15 In most cases it will be for the legal advisor or policy lead to engage on the detail of the provisions with Parliamentary Counsel. The Bill team will need to monitor overall progress – a clause by clause tracker that keeps a record of progress on each provision or set of provisions (instructions to Parliamentary Counsel, first draft back etc) will help, giving early warning of unavoidable delays so that remedial action can be taken. Without regular monitoring, problems may not be spotted until it is too late, affecting overall progress and thus putting the Bill at risk.
Preparation of policy instructions
9.16 Policy officials must produce a clear and detailed statement of what the Bill is to do in policy terms – these are the “policy instructions” which the departmental legal advisors will scrutinise, identify any implications, and turn into something that Parliamentary Counsel can work with. Previous Bill teams have noted that the level of detail required for policy instructions is greater than for policy development where no primary legislation is required.
9.17 For large Bills, this process may involve a number of officials in different policy areas, and possibly spread across more than one department. The Bill team will be responsible for coordinating this process and ensuring that all policy instructions are produced according to the agreed deadlines, and will also have a role in quality assuring the policy instructions. Any instructions that touch on the responsibility of another department or public body should be approved by that department at this stage, to avoid having to correct any errors later on.
Preparation of drafting instructions
9.18 The Bill legal advisor prepares drafting instructions on the basis of the policy instructions. The main purpose of these instructions is to say what is wanted, but also to tell Parliamentary Counsel the reasons behind the various proposals. Instructions should:
9.19 The translation of policy into instructions can often highlight points which may not have been considered in detail previously or identify an inconsistency in the policy. The instructions may need to go through several drafts before these points are addressed and they are ready to be sent to Parliamentary Counsel. It is essential that adequate time be allowed for this process. Poorly drafted or inadequately thought-through instructions can cost time later on.
Submitting instructions to Parliamentary Counsel
9.20 Where possible, all the instructions for a Bill should be sent to Parliamentary Counsel at the same time. This is because the different parts of a Bill may be interrelated in ways that are not immediately obvious to the Bill team, and in this case, how one part of the Bill is drafted may depend on how another part of the Bill is drafted.
9.21 Where this is not possible, a timetable for delivering instructions in tranches should be agreed with Parliamentary Counsel and Legislation Secretariat, and it is helpful to Parliamentary Counsel if the Bill team can set out the envisaged structure of the Bill as a whole, explaining what each part of the Bill is intended to do.
9.22 There is clearly a balance to be struck between ensuring that Parliamentary Counsel has all the necessary information before starting to draft, and ensuring that drafting gets underway in good time and Parliamentary Counsel's time is used to best effect. For example, if instructions on the core provisions of a Bill are ready to go to Parliamentary Counsel, they should not normally be delayed on account of instructions on smaller miscellaneous provisions.
9.23 The instructions and accompanying documents should be emailed to First Parliamentary Counsel, who will then allocate them to the team responsible for drafting the Bill. Thereafter communication should be directly between the lead department and the members of the Parliamentary Counsel team working on the Bill.
9.24 Once a set of instructions have been allocated to a Parliamentary Counsel team, the senior Parliamentary Counsel will inform the department as soon as possible that s/he has been allocated the Bill and will give some idea of how s/he proposes to timetable the work. It is then helpful to have an early meeting between Parliamentary Counsel, the legal advisors and principal members of the Bill team, for each to explain what they are expecting the other to contribute and to discuss methods of working.
9.25 Much of the work can then be done via email correspondence between the lead legal advisor and the Parliamentary Counsel working on the Bill, though some further face to face meetings are likely to be helpful. The Parliamentary Counsel working on the Bill may also wish to meet with the Bill Minister during the drafting process.
Commenting on draft clauses provided by Parliamentary Counsel
9.26 Parliamentary Counsel will send draft clauses to the lead legal advisor and Bill manager, who should then circulate them to policy leads, including those in other departments. It is likely that they will want to request changes to the draft clauses.
9.27 The process of drafting, consideration and discussion of drafts and re-drafting goes on until the Bill is in a form suitable for introduction into Parliament.
9.28 The Bill team must make sure that they fully understand the draft clauses and should satisfy themselves, if necessary by discussion with Parliamentary Counsel, that the intention of the instructions has been met – as the policy intention is sometimes best given legislative form in a manner which is not quite as was originally contemplated.
9.29 The Bill team should therefore go through the draft clauses line by line and word by word to check that the clauses do what is intended. The importance of this cannot be underestimated – later on, Bill teams will need to write speaking notes for the Bill Minister to defend each clause of the Bill at the Committee stages in Parliament (Clause Stand Part).
9.30 Changes to the substance of a proposal during the drafting process should be avoided. If it has to be done, however, the sooner this is made clear the better, as changes to one part of the Bill may require other parts of the Bill to be reworked accordingly. The Bill team should take the Parliamentary Counsel working on the Bill into their full confidence about the parts of the proposals which are coming, or are likely to come, under most pressure, e.g. during consultation with outside bodies.
Short and long titles and scope
9.31 Parliamentary Counsel will give the Bill its short and long titles (for example, short title: Regulatory Enforcement and Sanctions Bill, long title: To make provision for the establishment of the Local Better Regulation Office; for the coordination of regulatory enforcement by local authorities; for the creation of civil sanctions in relation to regulatory offences; for the reduction and removal of regulatory burdens; and for connected purposes).
9.32 The long title is of importance since it must cover all the provisions in the Bill. The “scope” of the Bill: that is, the admissability of amendments related to the Bill's subject matter but not on the provisions of the Bill as drafted is determined by what is in the Bill, not by the long title. The House authorities are the ultimate arbiters of scope ('relevance' in the Lords) and Parliamentary Counsel will raise any queries directly with them.
9.33 The drafting authority given by Legislation Committee is for a Bill as set out in the bid pro forma or otherwise agreed by the Committee when it meets to agree the provisional programme. Adding significant new policy to the Bill may affect the scope and size of the Bill and must be cleared through Legislation Committee as well as the relevant policy Committee. The addition or removal of smaller provisions that would not affect overall scope and size does not require clearance from Legislation Committee, but must be cleared by the relevant policy Committee.
Ministerial oversight of drafting
9.34 The Bill team should ascertain early on exactly how the Minister wishes to exercise his/her responsibility for the Bill; for example, how s/he should be kept in touch with the progress of drafting – this may vary with the type of Bill and with the Minister's inclinations and other commitments. Major issues which come up must be referred to them, and they must be informed at once if the date aimed at for introduction is not going to be achieved.
9.35 The Bill Minister is likely to take a particular interest in the short title given possible presentation issues.
9.36 Matters of detail are often set out in Schedules to a Bill; or they may be left over to be dealt with by statutory regulations or other forms of subordinate legislation. These are some of the factors to consider when deciding whether to make provision in primary or secondary legislation:
On the other hand:
9.37 Parliament will take a close interest in the nature and extent of Parliamentary control over subordinate legislation, and the Government will need to justify any delegated powers and the chosen level of Parliamentary scrutiny (should they be subject to any Parliamentary control and, if so, what form of control – negative, affirmative or super-affirmative) in a Delegated Powers Memorandum submitted to the House of Lords Delegated Power and Regulatory Reform Committee, so careful consideration should be given to this question. This is a matter on which the legal advisor will assist and on which the experience of Parliamentary Counsel will prove helpful.
9.38 The commonest form of control is annulment in pursuance of a resolution of either House of Parliament (the “negative resolution” procedure). This does not delay the coming into operation of an instrument; but if within 40 days of its being laid before Parliament (exluding any time during which Parliament is dissolved or proroged, or during which either House is adjourned for more than four days, a “prayer” moved against the instrument by a member of either House is carried, the instrument ceases to have effect. There is also the relatively rarely used draft negative procedure where an instrument is laid in draft and can only be made if, during the period of 40 days from the laying in draft, no negative resolution is passed. In this case the negative resolution is in terms that the draft ofer is not to be made, in which case the Statutory Instruments Act 1946 provides that no further proceedings shall be taken on the order.
9.39 The other principal form of control is the “affirmative resolution” procedure whereby the instrument cannot be made unless it has been laid before Parliament in draft and approved by resolutions of both Houses. Here also there is another variant, where the order is made (usually because the Minister regards it as necessary to act as a matter of urgency, but is then required to get each House to pass a resolution affirming the instrument.
9.40 In the case of some financial instruments, these procedures apply to the Commons only.
9.41 Some instruments are not even laid before Parliament. This is commonly the case with commencement orders.
9.42 Special provision is made for Parliamentary control of Legislative Reform Orders and remedial orders under the Human Rights Act 1998, both of which amend primary legislation.
9.43 In some other exceptional cases there may be provision for additional Parliamentary control (so-called ‘super-affirmative’ procedure). Departments should avoid including such provision in Bills (or conceding amendments to that effect), since this adds to the complexity of Parliamentary handling and has a considerable impact on future business management.
9.44 It is rarely, if ever, appropriate to allow for amendable secondary legislation. Any special provision of this kind should be highlighted in the Legislation Committee Memorandum.
9.45 Both Houses are likely to consider carefully the nature and extent of Parliamentary control over subordinate legislation. The Bill team should therefore make sure that the Minister is content with what is proposed, and alerted to any use of delegated powers which may prove controversial.
9.46 In legislation dealing with the functions of the National Assembly for Wales, powers delegated to UK Ministers in England should be delegated to Welsh Ministers. The only exception to this might be if the legislation confers significant powers to amend primary legislation (‘Henry VIII powers’) by affirmative resolution (see below).
9.47 It is helpful for Parliament to have sight of draft regulations which are central to a Bill's effect when it considers the Bill. This is usually done by drafts being placed in the Vote Office (Commons) or the Printed Paper Office (Lords) and the libraries of both Houses and made available during Committee with an announcement made at the relevant point in Committee, or letters written to interested members or Peers.
9.48 The House of Lords Delegated Powers and Regulatory Reform Committee takes a particular interest in so-called “Henry VIII” powers to make incidental, consequential and similar provisions by order (i.e. creating powers to amend primary legislation by secondary legislation). The Committee has recommended that there should be a presumption in favour of the affirmative procedure for orders made under this form of Henry VIII power; and if the Government propose such powers subject to anything other than the affirmative procedure, the reasons should be set out in the Explanatory Notes and in the Delegated Powers Memorandum, along with an explanation of the reasons why a particular form of wording has been adopted in each case.
9.49 If affirmative instruments contain provisions which, if contained in a Bill, would have made the Bill hybrid, they may attract hybrid instrument procedure in the House of Lords. Sometimes a Bill contains a de-hybridising provision disapplying this procedure in the case of affirmative instruments made under its provisions.
9.50 For further guidance on statutory instruments see Statutory Instrument Practice [External website].
Modification of existing legislation
9.51 A Bill which amends an existing Act will now often do so by textual amendment, e.g. “In section 8(1) for “mental welfare officer” substitute “approved social worker”.” A Bill consisting mainly of amendments in this form will be difficult to understand until the amended text of the original enactment is made available.
9.52 In such circumstances, Members considering a Bill are sometimes offered a separate document which shows the text of the Act concerned as it would look if amended as proposed by the Bill (a so-called 'Keeling Schedule'). If it is thought that such a document would assist Members, the legal advisor should discuss its preparation with Parliamentary Counsel.
9.53 Where a Bill modifies existing legislation dealing with the same subject the Bill team will have to consider transitional provisions, and what provisions from the existing legislation, e.g. as to enforcement, interpretation or procedural matters, should apply to the new Bill.
9.54 Commencement date(s) should be specified in the Bill where possible and appropriate (it is possible for different commencement dates to be proposed for different parts of the Bill). If commencement date(s) are not specified in what will become the Act then they must be specified subsequently by commencement order.
9.55 Whether the commencement date(s) are specified in the Act or in a subsequent commencement order, no Act, or part of an Act, should be commenced earlier than two months after Royal Assent under normal circumstances. It is particularly important that the minimum period is observed in respect of provisions that will directly affect the public, legal practitioners or pending court proceedings.
9.56 In exceptional circumstances, approval for immediate or early commencement can be sought from the Law Officers, after taking the advice of Parliamentary Counsel. Agreement should be sought at the drafting stage, so that if consent is not granted there is time to draft an alternative before the Bill is approved for introduction.
9.57 There are some exceptions to the need to seek Law Officer consent – legal advisors should consult the detailed guidance on early commencement on the LION intranet site.
9.58 This two-month minimum period does not apply to Consolidation Acts, for which a minimum period of three months should be allowed between Royal Assent and the earliest commencement date.
9.59 Wherever possible or practicable, new legislation which impacts on business, such as health and safety, work and pensions, or company and consumer legislation, should be commenced on “common commencement dates” – at the start of the financial year, 6 April, or on 1 October.
9.60 Subject to obvious exceptions (e.g. Finance Acts and Acts whose operation turns on a clearly-signalled appointed day), Parliamentary Counsel will: group all commencement provisions together at the end of any Bill in which it is practicable to do so; aim to include the word “commencement” in the heading of any clause which includes commencement provisions affecting provisions outside the clause itself; put all commencement provisions in a separate clause (or schedule) in cases where their length or complexity warrants this.
9.61 In the (exceptional) cases where it is not practicable to facilitate the identification of commencement provisions in this way, departments should ensure that a full statement of the commencement provisions is made generally available, for example as part of the published guidance issued on an Act, in a note made available with copies of the Act or in a Press Notice issued on Royal Assent. Commencement provisions should also be set out clearly in the Explanatory Notes.
Codes of practice and legislation
9.62 Meaning of “code of practice”: A code of practice is an authoritative statement of practice to be followed in some field. It typically differs from legislation in that it offers guidance rather than imposing requirements: its prescriptions are not hard and fast rules but guidelines which may allow considerable latitude in their practical application and may be departed from in appropriate circumstances. The provisions of a code are not directly enforceable by legal proceedings, which is not to say that they may not have significant legal effects. A code of practice, unlike a legislative text, may also contain explanatory material and argument.
9.63 Where it is proposed to introduce a code of practice in a way or for a purpose which departs from standard practice, Ministers should be aware that this is likely to be controversial, particularly in the House of Lords.