Office of the Parliamentary Counsel
This note is an attempt to give an idea of what life is like in the Office, which I joined in 1971. It is based on a talk I gave.
If I am asked at a party or other social occasion what I do and I say I draft legislation, I can be pretty sure of the sort of response I will get. People use words like 'unusual', 'interesting', 'important', 'difficult' and 'near to the centre of government'. The job is all these things. It is also stimulating, fascinating to anyone interested in words, and one of the few legal jobs with real variety and the opportunity actually to create something.
Our job can be briefly summarised. Ministers decide on a policy with the advice of their administrators. If legislation is needed the department's lawyers draw up written instructions for our Office, and a team is assigned to the Bill by the First Parliamentary Counsel (the head of the Office). Each team (of two or three Counsel) will usually be working on a number of Bills at the same time.
When a Bill has been assigned to a team we draft it. A small Bill might take an hour or two. A big Bill might take several months involving considerable correspondence, several meetings and several succeeding versions of the Bill.
When the Bill is ready it is introduced into Parliament. It is our job to liaise with officials of both Houses on procedural matters affecting the Bill as it passes through Parliament. We also draft any amendments the government wants to make. These may be needed to correct technical defects or to reflect changes of policy, and sometimes whole new topics are added. Depending on the circumstances, a Bill may attract numerous amendments. But the person who drafted the Bill remains in control of the wording from the beginning until enactment, and this ensures consistency through the whole Act.
At the centre of our job comes the process of drafting. Non-drafters seem to think that we are presented with a clear policy and all we have to do is express it in statutory language (whatever that means). The process is in fact much more complicated than that.
Another popular misconception is that each of us has a book of precedents and that the drafter simply gives the client something off the shelf. My experience is that precedents are rarely useful. And they can be dangerous if slavishly followed. I recently saw an Act from Azerbaijan. It looked like a straight copy of our Interpretation Act, right down to the section headed 'Application to Northern Ireland'.
How, then, does the drafter go about the job? Somebody once said that legislative drafting can be reduced to two rules-
There is something in that. But it might help if I expand on it.
Find out what is wanted
In the first place, the drafter has to master the subject and find out what the client wants - and that in itself can be difficult enough if the person giving the instructions cannot express himself clearly or if the subject matter is difficult or if the policy has not been settled. Sometimes this process can take up a great deal of the drafter's time.
Analysis
Then the drafter has to subject the ideas to a rigorous intellectual analysis. It is no good putting onto the statute book something that simply will not stand up. If the analysis means that the ideas collapse, the client will be asked to think again or might even conclude that the particular project should be abandoned.
Circularity represents an example. It is one of the worst traps for a drafter. Take this case. An asset is subjected to tax by two provisions applying in two situations. The situations overlap, and to avoid a double charge the department asks for a rule that if either of the provisions applies the other should not. But if the application of provision 1 ousts provision 2, and the application of provision 2 ousts provision 1, you go round in circles; the attempt to avoid a double charge either fails completely or produces no charge at all. You can break the circularity by saying that if provision 1 applies provision 2 does not or by saying that if provision 2 applies provision 1 does not. By avoiding both propositions you get a firm point from which you start.
This analytical function of the drafter is vital. The capacity to stand back and to question is one of the greatest qualities needed in legislative drafting. But it is not enough simply to destroy ideas. The capacity to contribute fresh and constructive ideas is also important. Of course the basic policy is for others - ultimately for ministers. But it is a definite part of the drafter's job to point out any traps inherent in the policy, and where possible to offer solutions. It is sometimes surprising how much the drafter contributes in this way to the formulation of policy.
Expressing the policy
Once the drafter knows what is wanted, and is sure that it stands up logically, he or she can find the words needed to express it in clear and unambiguous language. This is easier said than done. Harold Macmillan, in answer to a Parliamentary Question asking why legislation could not be drafted in simple terms, once said this-
'Let us take this sentence: 'When John met his uncle in the street he took off his hat'. That is a clear sentence, but it is capable of at least six different meanings.'
And it is said that a provision of an American statute reads (or read)-
'No-one shall carry any dangerous weapon upon the public highway except for the purpose of killing a noxious animal or a policeman in the execution of his duty.'
I think this is enough to show how difficult it can be to express even simple concepts unambiguously.
In addition, a great problem is that the concepts the drafter is dealing with are often inherently complex - and you cannot express complex ideas in simple language. Why are the concepts complex? There are several reasons, and here are some of them-
It will be seen from this that there is actually considerable pressure on the drafter to make Acts complex and to avoid simplicity. This sometimes comes as a surprise to critics who blame the drafter for complexity in legislation. In fact drafters dislike complexity, and a great deal of the drafter's time can be spent in trying to persuade the instructing department to simplify the policy. Sometimes he or she succeeds. But more often there is no avoiding it. For instance, I once queried the need for what seemed to me to be a minor and technical (but complicated) anti-avoidance provision in tax legislation. My objection evaporated when I was told that it would save the Exchequer £500 million a year.
Another severe problem is that the drafter is often short of time. It would be a great mistake to suppose that the drafting process is a leisurely one where the drafter has the opportunity to weigh every word and polish every phrase. There is normally a deadline dictated by the government's legislative programme. In addition, instructions have a habit of arriving late. This may be, for instance, because the decision to legislate came late or because unexpected problems have arisen.
Generally, nearly everybody (including drafters) underestimates the time it takes to draft a Bill. The Canadian Professor Elmer Driedger gave an instance where a department asked for a Bill in three weeks and gave a public assurance that it would be ready in that time. As things turned out, it needed the full-time attention of an experienced drafter for 18 months.
As for the words the drafter uses, there are no particular rules. The drafter has all the English language at his or her disposal, and will use it in the way which is best suited to get across what is to be communicated. Each drafter has his or her own style, and this leaves room for some mild self-indulgence. It is said that the drafter of an Iron and Steel Bill once included something about 'any old iron'.
Generally speaking, legislative language has tended to become simpler in recent years. For instance, sentences tend to be short; and colloquial rather than technical language is used where possible.
Legislative language is specialised
However the drafter expresses the legislative concepts, the one thing he or she must do is to give effect to the policy - or rather to a policy that stands up. This is where amateurs most frequently fail. For instance, a drafter once drafted a regulatory provision applying to all ships that are not British registered ships. A minister wanted to turn this into 'all foreign-registered ships'. It looks less clumsy. But if he has overlooked the fact that there are some ships that are not registered at all, he has produced the wrong result because he has not covered those ships. It might be neat, but it is wrong.
I think this example illustrates in a small way that legislative language is different from most language. I wholly accept that tax legislation, for instance, is not easy to read. That is partly because it is dealing with extremely difficult and complex ideas. And it has to be precise because the courts will construe it in the citizen's favour. It is not realistic to expect the man in the street to understand it, because the underlying concepts are beyond him. It is inevitable that it will take a real intellectual effort both to understand it and to draft it. A Finance Bill, dealing as it does with very specialised areas, is more akin to a text book on physics than to a novel.
The learning period (about six to eight years) may seem long. But it ensures that everybody is well trained - probably far better than in private practice. In the early stages in the Office the junior in a team will be expected to analyse instructions and to discuss difficult points with the senior. The junior will also be expected to carry out research into a variety of issues. The research might concern the legal background (both common law and legislative) and the way the Bill affects it. Or it might concern the way legislation operates; topics like commencement, extent and the nature of repeals might arise. Or the research might involve Parliamentary procedure; for instance, the government may want to amend a Bill by adding provisions concerning a new topic and this may involve a study of the relevant precedents on the scope of Bills. The junior will also be expected to study the senior's drafts with care and to offer constructive criticism. The junior will also be asked to produce drafts for the senior's scrutiny and discussion.
In this way the junior learns about drafting, Parliamentary procedure and other aspects of the job, and also helps the senior as he or she goes about producing a Bill. As time goes by the junior will be given more responsibility and less supervision. Circumstances vary, but after five years in the Office I had produced a moderately sized Act with very little supervision - an Act I could call my own.
I would like to mention some of the rewards and drawbacks of this specialised job. As for the rewards, one of the satisfying factors is that you are creating something. What emerges is certainly not everybody's idea of a good read, but you are creating an ordered structure, often out of a fairly chaotic bunch of ideas. And sometimes you hear that somebody who actually knows the drafter's problems thinks you have done a good job and produced something elegant.
Another thing is that you are pretty near the centre of things. There is a certain satisfaction in seeing policy being made. And it can be amusing to see the media speculation about what a Bill is going to do when you actually know how far off they are.
There is also the variety. I think there can be few legal jobs that give the opportunity to range over so many areas of the law. In my career I have drafted Bills on subjects as diverse as trade unions, chemical weapons, elections, criminal procedure, fish diseases, local government and the health service (to take just a sample). I have also drafted law reform Bills for the Law Commission on subjects as diverse as damages, perpetuities and accumulations, psychiatric illness, corruption and the hearsay rule. In fact we discourage specialisation in particular subjects. The demand for legislation on a given topic is unpredictable, and depending on the circumstances a specialist might have nothing or far too much to do. There is the one exception of finance (that is, taxation) which comes along every year and tends to be done by a few people. As it happens I have had the chance to specialise for some years in taxation, both national and local.
After a while in this job just about everything seems ambiguous, and in fact that is an occupational hazard. But it also represents a rich source for quiet amusement. For instance, I once saw an advert for a 'massive carpet sale'. Does this mean a sale of massive carpets, or a massive sale of carpets of different sizes, or what?
As for the drawbacks, there can be some hair-raising moments. It is all too easy to drop a stitch, and they can be serious. All drafters experience heart-stopping moments from time to time.
You have to be able to cope with pressure. You are often working against a tight deadline and at the same time having to cope with some real intellectual puzzles. However, a person in the early years of a career in the Office will be operating under the close supervision and guidance of senior drafters; and they will ensure that nobody takes on full responsibilities before they are able to.
One irritant is the fact that the drafter tends to be the subject of many jibes, rather like mothers-in-law and weather forecasters. In fact the drafter is often blamed for things that are not the drafter's fault. It is all too easy for someone to say that a provision is badly drafted when what he means is that he doesn't like the policy or that the policy is complicated. You get used to that sort of thing. The important thing is that the drafter is usually respected by anyone who knows what the job is like.