Guidance on instructing Counsel: common legislative solutions

Introduction

1. This Chapter contains a brief overview of the process of making policy for legislation, and explains how the detailed guidance in the following Chapters fits in with that process.

Developing policy for legislation

2. A traditional model for developing policy for legislation is as follows:

• identify what the issue or "problem" is,
• think of possible solutions and the advantages and disadvantages of each solution,
• analyse the possible solutions and their advantages and disadvantages, and select the most promising solution,
• if a legislative solution is chosen, work up the proposed solution in sufficient detail so that draft legislation could be produced, and
• test the worked-up solution against a range of factual scenarios to see whether the solution would have the desired effect in those scenarios.

3. In the course of doing this, policy makers will of course need to work out what the existing legislative landscape is, and how that affects, and is affected by, the proposed solution.

4. Some policy issues that arise are novel or unique, and as such may require creative thinking and entirely novel solutions. Similarly, sometimes what is wanted is a new solution to a commonly occurring problem.

5. But there are some commonly occurring policy issues that are dealt with by adopting a commonly occurring legislative solution. That is what this guidance is concerned with.

6. For these cases, it is possible to identify issues that may need to be addressed, when working up and instructing on the proposed solution. That is what we have done for a number of legislative solutions.

7. The aim of the detailed guidance is to stimulate thinking, increase awareness of possible options, improve the quality of instructions, and improve the efficiency of the policy-making and instructing processes, by articulating matters that may need to be addressed.

8. Please note, however:

• The detailed guidance in the following Chapters sets out matters that may need to be considered. Some of these matters are likely to arise in all or most cases, but other matters may arise only sometimes or even rarely. So please don't assume that the instructions necessarily need to address all the issues identified in the detailed guidance.

• Depending on the policy, it may of course be the case that something not mentioned in the detailed guidance is wanted – whether in addition to the matters mentioned there or instead of some of those matters.

• Above all, it must be emphasised that although the detailed guidance aims to assist policy makers and instructors, it is not intended to constrain thinking and is not a substitute for working out what is really wanted from a policy perspective.

9. We hope that the detailed guidance will also help policy makers when they are dealing with any other topics upon which legislation is required, as the detailed guidance in the following Chapters is a guide to the level of meticulous analysis that needs to be undertaken whenever policy on legislation is developed and instructed on.

Format of following Chapters

10. Each Chapter deals with a particular legislative solution, and is in the following format:

Description of the solution

11. This high level description is intended to assist policy makers in selecting the correct solution for the policy issue they wish to address.

12. Where there is a section on related solutions, the aim is to draw the policy maker's attention to alternative policy solutions.

Elements of the solution

13. This section consists of a series of questions that the instructor may or will need to address, in order to enable the drafter to produce a draft.

Examples of the solution

14. This section lists examples of the solution, so that policy makers, instructors and drafters can easily locate examples of the solution.

15. These examples show the policy and drafting choices that have been made in other contexts. Again, the aim is to show examples that reflect a range of policy choices that have been made, not to constrain thinking.

Additional solutions to be added in future

16. We hope to expand this guidance over time, to include detailed guidance on other legislative solutions, including:

• offences
• civil penalties
• appeals
• giving notices
• publishing documents
• guidance (including codes of conduct and codes of practice)
• information sharing
• reorganisation of public bodies (including merger and dissolution)
• ombudsmen
• subordinate legislation.

Any suggestions as to other legislative solutions that might be covered would be welcome.