This blog was contributed by Charlotte Crilly, Teaching Fellow for Undergraduate Laws.
You’re probably already familiar with how Acts of Parliament become law: a draft Bill is introduced into Parliament and must go through a series of legislative stages before it becomes law. But who is it that actually writes the text of the draft Bill?
The text of Bills is written by Office of the Parliamentary Counsel, a team of around 50 government lawyers. It is their job to turn government policies into legislation. If you’ve already read the text of an Act of Parliament, you will know that this is no easy task!
An article about the First Parliamentary Counsel (who heads up the lawyers who do this work) was recently published, which seems a good opportunity for us to investigate the fascinating work of these specialised lawyers. You can read the whole interview with the First Parliamentary Counsel on the Civil Service World website here: https://www.civilserviceworld.com/articles/interview/law-land-interview-first-parliamentary-counsel-elizabeth-gardiner
On a personal note, I met one of Parliamentary Counsel many years ago when I was working as a government lawyer. It was inspiring to meet the man who actually drafted the Children Act 1989, and to hear about changes in the way legislation has been drafted over the years.
Who are Parliamentary Counsel?
Parliamentary Counsel have the reputation of being highly skilled lawyers with impressive technical legal abilities. They are hard-working too and often under immense pressure, working to tight deadlines to help steer Bills through parliament. The specialist skills of Parliamentary Counsel can be shown by the fact that it takes around five years until they are sufficiently experienced to lead the work on a medium-sized Bill.
The current First Parliamentary Counsel, Elizabeth Gardiner, is the first woman to be appointed to this role since it was established in 1869.
What do Parliamentary Counsel do?
Parliamentary Counsel are called in when the government has a policy which requires new legislation. They work to draft a Bill and liaise with government departments over changes that need to be made (which can often be considerable as government policy can change during the drafting process). Parliamentary Counsel then help the government department to steer the Bill through parliament. Although increasingly their time is spent discussing policy matters in meetings with government officials, Parliamentary Counsel will still spend a considerable amount of time on their own, thinking hard about the legal issues, and writing.
What makes a good Bill?
When drafting a Bill, Parliamentary Counsel will take into account the government’s Good Law principles, which aim to ensure laws are necessary, clear, coherent, effective and accessible. These principles stem from a concern that legislation has traditionally been hard for people and businesses to understand and comply with. However, Parliamentary Counsel have to balance these differing requirements of Good Law: sometimes an Act of Parliament might need to be drafted in a more complicated way to ensure it is clear and effective. Their drafting skills and experience help them to make these decisions.
New ways of drafting
The way Acts of Parliament are drafted changes over time. As an example, the First Parliamentary Counsel mentions in her interview the tax law rewrite project of the late 1990s. New techniques from this project were carried over when drafting other Bills, such as ‘signposting’ at the beginning of an Act. This ‘signposting’ gives an overview of the Act and sets out the structure of the Act, but has no actual legal effect. This is a new approach as the traditional approach was that all sections of a statute had to have some legislative effect.
Other innovations in drafting statutes include writing shorter sentences and breaking things up rather than writing big chunks of text. Surely an innovation that students will be grateful for!
The impact of Brexit
As in many other areas of the law, Brexit will affect the UK’s legislative programme, and thus the work of Parliamentary Counsel. Areas of law which were previously legislated on at the EU level will need to in the future be government by UK legislation, so Parliamentary Counsel may need to prepare for delivering this post-Brexit legislation, whatever it may be.
The Office of the Parliamentary Counsel has also already started carrying out more work on writing Statutory Instruments (a type of secondary legislation). This work has usually been done by lawyers in the government departments themselves, but one effect of Brexit is that an extremely large number of Statutory Instruments – one estimate is 800 – will need to be produced before the UK leaves the EU. To accomplish such a huge task, government lawyers need to draw on the drafting expertise of Parliamentary Counsel.
I hope you’ve enjoyed this short insight into the work of Parliamentary Counsel. The next time you are studying an Act of Parliament, you will know something more about the people who wrote it!
There is an interesting BBC News article about Parliamentary Counsel which you can read here: https://www.bbc.co.uk/news/uk-politics-42772718
The Office of the Parliamentary Counsel has a website which you can find here:
https://www.gov.uk/government/organisations/office-of-the-parliamentary-counsel and you can also find them on Twitter: @ParliCounsel_UK
You can find out more about the government’s Good Law principles here: https://www.gov.uk/guidance/good-law