From policy to legislation part II: better drafting instructions

This post in brief

• There are many mistakes that can frustrate the legislative drafting process.
• Two common instructor errors are:
• not thinking through all aspects of the policy, and 
• attempting to draft the text of the provisions.
• Policy officers should comprehensively explore all aspects of their proposal prior to issuing instructions. A Five Ws analysis (asking what, who, when, where and how) can help.
• Policy officers should not tell the drafter the specific words to use, unless there is good reason to do so. If the latter, they they should explain why particular words are necessary.

From policy to legislation part II: better drafting instructions

In my previous post (see Part I), I gave a brief overview of the drafting process. I’d now like to focus on common errors that policy officers make when writing the initial drafting instructions.[i] Developing a bill is hard and time-consuming. In my experience, providing good initial drafting instructions makes the subsequent drafting process quicker and easier.

I will focus on two common mistakes:

• Not fully developing the policy before giving instructions.
• Telling the drafter the exact words to use in the legislative text. 

Although there are far more than two ways the drafting process can go wrong, these are two of the most common. I’ll just deal with these two now and leave others for a later post.

Thinking through all aspects of the policy (or ‘have you done your job?’)

Urgent deadlines and pressure from the Minister or agency executive may mean that sometimes policy officers have to start the drafting process before they have fully developed the policy. While not ideal, this does occur and the policy will have to be fleshed out during the drafting process.

However, there are also times when the policy officers could have put more thought and analysis into their policy before they gave instructions. Absent an impending and immovable deadline, the drafting process works best when the policy officers have done their job and understand (and have articulated) all aspects of their policy prior to drafting.

What do I mean by poorly-developed policy? Typically it occurs when the policy officer has focused on the most prominent aspects of the proposal only, but has not given much thought to all of the subsidiary aspects of the proposal or how the proposal will fit into the existing legislative scheme.

Fishing licences as an example

Say you’re dealing with the problem of over-fishing, which is depleting fish stock. Obviously just saying “we want to regulate fishing” is too vague: very few policy officers would give instructions at that level of generality. But even saying “we want to introduce a licensing system where licences are given to ‘fit and proper’ fishers to catch a government-determined quota of fish’ is too vague. What will the procedure for issuing licences be? What supporting documents will an application for a licence need to contain? Who will issue the licences? What fees will be required and when will they be paid? How will the issuer decide who is ‘fit and proper’? How will the quotas be determined? Will there be a process to review or challenge a quota or the grant of a licence? In what circumstances can the licence be revoked or a quota adjusted? How will this fit into the existing legislative scheme for regulating fishing? Will it apply to people already fishing or only those who start fishing after the scheme commences? It is difficult to overestimate the number of questions, sub-questions and sub-sub-questions that need to be answered before the policy is sufficiently developed.

Asking all the relevant questions

I’ve found that sometimes a modified[ii] Five Ws analysis or similar can be useful. To narrow the scope of our example, say you already have a fishing-licensing scheme, but intend to amend it so that third parties can challenge someone’s application for a fishing license. To flesh out the policy, you could ask:

• What can they challenge? Just this application? Or the applicant’s suitability generally (ie a successful challenge would preclude future applications)?
• Who can challenge? Do they need to be another licensed fisher? Or a direct competitor of the applicant? Or just a fisher generally? Or any member of the general public?
• When can somebody challenge an application? As soon as it’s made? For a specific time period only? Only until it is granted? Even after it is granted?
• Where can the application be challenged? Can a person challenge an application to fish only in a specific geographical area? Or do they have to challenge the applicant’s right to fish anywhere?
• How is a challenge made? Does the challenger have to file an application?  With supporting evidence? Does the application need to be paper or can it be filed electronically? What opportunity will the applicant have to respond? What are the timeframes for the decision?

This is not intended to be an exhaustive list of questions, but is merely intended to show how a relatively simple policy change raises a lot of questions that, ideally, are answered before instructing the drafter. The Five Ws approach can help by guiding the policy officer to ask more specific questions.

What happens if the policy is underdeveloped?

Ignoring the hard work of asking and answering these questions – and it is hard work - until the drafting process begins not only lengthens the drafting process: it also means that the policy officers are trying to develop policy under pressure. By the time that drafting begins it is often already close to the parliamentary deadline for introducing the bill in the desired sitting period. Good policy development takes time. Trying to rush development during drafting to meet a parliamentary deadline is a recipe for bad policy. The scriptwriters of The Hollowmen may have been gently mocking over-cautious public servants when they had a departmental head opine that policy on the run is policy underdone.[iii] Nonetheless, it fits with both experience and commonsense that trying to solve a complex policy problem under tight timeframes is unlikely to result in great policy. Where possible, the rush should be avoided.

Providing a lay draft (or ‘don’t try to do the drafter’s job!’ … most of the time)

A constant struggle in any policy development process is avoiding jumping to a specific solution to the problem too quickly. Good policy process requires first defining the problem, then working out what you want to achieve with the solution, and only then trying to work out which specific solution will work best.

The problem is that almost no one thinks about policy this way (unless they’re forced too). The moment we notice a problem we automatically leap to the most intuitive plausible solution, which may not be the best solution. Ideally, the person bringing the issue to the policy officer would say “analyse this and then tell me what the best solution is.” However, it is not unheard of for the person to just say “we need to make this change to fix the problem – make it happen!”

The temptation to provide lay drafts

In the drafting process the instructors are supposed to explain the problem and what they want the solution to achieve, while leaving it to the drafter to determine the best form of words to achieve this. However, instructors can fall prey to the temptation to jump straight to solutions as well. What typically happens is the instructor will give the drafters a ‘lay draft’. They will say something like “please amend provision X so that it reads ‘an applicant must pay the fee as soon as reasonably practicable.’” Drafters hate this.[iv]

They hate this for two good reasons. The first reason is that they are the ones trained in and experienced at drafting: they are understandably sceptical of the abilities of those without the relevant training and experience. Some instructors are not even lawyers. The Government has given OPC a monopoly in legislative drafting because having well-drafted legislation is important. OPC takes ultimate responsibility for ensuring that the legislative text is legally effective. Drafters are unlikely to meekly surrender their prerogative in writing the actual words.

The second reason (related to the first) is that, if the instructor doesn't tell the drafter why they chose those particular words, the drafter won’t be able to work out if the lay draft is the best way to achieve the intended legal effect. Drafters need to understand the aims and context of the policy proposal to ensure that the chosen words will do their job properly.

With this in mind, most of the time policy officers should stick to describing the problem and the outcome they want, leaving it to the drafter to suggest a specific form of words to achieve this. Drafting works better when instructors stick to instructing and let drafters draft.

When the instructor needs particular words to be used

However, like every rule there are exceptions. Sometimes you will need the legislation to use a specific form of words for a particular reason. For example:

• You might be implementing a treaty that uses a particular phrase that you need to mirror.
• You might want the provision to mirror other similar provisions in your legislation that users of your legislation are familiar with.
• Users of the legislation that you have consulted might prefer a particular form of words because they think that those words are easy to understand and apply in practice.

If you have thought carefully about it and have good reason to prefer one specific form of words over another, then by all means tell that to the drafter. But don’t only tell them the specific form of words – remember that they need to understand the background and the ‘why’. Explain why you think that a particular form of words is necessary. Using our example about paying fees above, a drafter will respond much more positively to something like:

Please amend provision X to impose a requirement on the applicant to pay their fees promptly. Subject to the drafter’s views, we think this could be achieved by requiring the fees to be paid “as soon as reasonably practicable.” This wording is consistent with existing provisions Y and Z in our legislation. Stakeholders are already familiar with the interpretation of these words in the existing provisions, and have expressed a preference for provision X to contain similar wording.

Starting a long voyage properly

The initial instructions are your first and best chance to start the drafting process off smoothly. Instructions containing poorly thought out proposals, or that only tell the drafters your preferred wording, are likely to slow the process down: a good drafter will not accept these instructions at face value and will challenge the instructors. The ensuing negotiation and discussion will add time and often frustration to the drafting process. Following the above tips will help ensure that the instructions are as helpful to the drafter as possible. This gives the drafting project the best chance of success.

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[i] While the focus is on the initial drafting instructions given to the drafters at the start of the process, many of the errors identified and their solutions will be relevant to later supplementary drafting instructions that are given to the drafter in response to preliminary drafts.

[ii] I say modified because I typically omit ‘why’ and substitute ‘how’ (which is included in some variants anyway). If the policy officer doesn’t know why they are making the change by the time they write drafting instructions, then  they are beyond help!

[iii] The line is at 2:10, though I haven’t time stamped it because you really should watch the whole clip (and the whole series, for that matter).

[iv] OPC advises against providing lay drafts at 2.1.4 of Giving written drafting instructions to OPC.

From policy to legislation part I: introduction to drafting

This post in brief

• Legislation is written by parliamentary drafters, not policy officers.
• Drafters are typically analytical, precise, outcomes-focused and independent. They are also usually very good at their job.
• Drafting begins with the policy officers giving written instructions to the drafters.
• The instructions set out in detail what the policy problem is and how the instructors would like to solve it.
• Drafting is an iterative process, with many drafts, reviews and re-drafts before both the instructors and drafters are satisfied.

From policy to legislation part I: introduction to drafting

Despite what my mother might say when she’s bragging about her son’s job to her friends, policy officers don’t actually write laws themselves. Once the policy is settled, it is the parliamentary drafter who writes the actual text of the bill.[i] The policy officer’s job is to tell the drafter what the policy is, so that the drafter can draft text that will give legal effect to the policy. The former is the process of giving drafting instructions.

In this post, I’ll give a brief overview of who the drafters are, and of the drafting process. Later posts will identify common problems with drafting instructions that can derail or delay the drafting process - if you’re already familiar with legislative drafting, please feel free to skip to the next post.

Who are the drafters?

The Office of Parliamentary Counsel (OPC) drafts the bills that are introduced into the Commonwealth Parliament by the Australian Government (as opposed to bills introduced by the opposition or cross-bench). As this is the jurisdiction that I work in, I will focus on the processes used by OPC. However, the Australian states and territories have their own separate drafting offices. Broadly, the drafting process in the states and territories is similar to the Commonwealth. I expect (but have not checked) that the process would also be similar in other Anglophone common law countries, especially England and the other countries with a Westminster-style of responsible government.

The drafters employed by OPC are lawyers who typically have considerable training and expertise in legislative drafting (obviously), statutory interpretation, constitutional law, and administrative law. Drafting roles are well paid (for the public service, that is – top barristers and partners at top tier law firms would usually earn more in private practice) and highly sought-after: entry into the drafting offices is very competitive.

What this means is that OPC drafters are typically some of the best lawyers in the Australian Public Service: they are well trained, have analytical skills of the highest order, and are typically very good at their jobs. I’m often amazed at how quickly drafters can get across the intricacies of a complex and unfamiliar piece of legislation.

Traits of a drafter

It’s also worth pausing for a moment to consider the traits of the typical drafter, as understanding how drafters think enables the instructors to communicate more clearly and efficiently with them.[ii] In my experience, drafters are:

• Analytical. They have to understand the concepts behind the often-complex legislative schemes they are amending. Drafters will not accept woolly or ill-defined concepts in your instructions without further elaboration and explanation.
• Precise. Using the correct words, punctuation and grammar matters a great deal when the legislative text will be scrutinised by lawyers and judges once it’s law: a certain amount of pedantry is necessary.
• Outcome-focused. Drafters work under extreme pressure to produce an immense amount of draft legislation. They are tighly focused on the task at hand. Although professional and friendly, when a drafter calls you they won’t usually engage in endless small talk before getting down to business.
• Independent. OPC ultimately serves the Government as a whole, not just the instructing agency. This means that drafters will not take your suggested approach at face value and will often propose - and push strongly for - a different approach if they think it is better.

Why mention this? Drafters will (and usually should) challenge policy officers on aspects of their instructions. In my experience drafters are always polite and professional when they do this. However, if the instructor has a different personality type to the drafter, there is the possibility that good-faith disagreements could devolve into unnecessary personality conflicts (rare as they are).[iii] Recognising the potential for this goes a long way to avoiding unhelpful conflicts.

The drafting process

To guide policy officers who are instructing on legislation, OPC publishes a number of guides, including Giving written drafting instructions to OPC and OPC’s drafting services – a guide for clients. For those who want even more detail on the drafting process, OPC also publishes its drafting manuals and drafting directions.

Giving written instructions

Broadly, the instructing agency will initiate the process by giving the drafters a set of written drafting instructions. These instructions are ideally comprehensive (explain all relevant aspects of a well-developed policy), though depending on the urgency of the bill and other factors this may not always be the case. Pages 3 – 9 of the OPC guide to giving instructions has a comprehensive list of the matters that OPC likes to have addressed in the instructions. However, the most important thing that the instructions must do is explain (a) the problem that the policy is intended to address, and (b) the outcome that the policy is intended to achieve.

Drafting commences

Once OPC assigns a drafter or a drafting team, the instructors and drafters will meet to discuss timelines for the project. The drafters will then begin to provide the instructors with drafts of individual proposals, which the instructors must review. If the instructor is not satisfied with the draft they will provide further supplementary instructions (sometimes in writing, but sometimes verbally if the matter is simple). The process of draft, review, further instructions will usually repeat through a number of iterations until a final draft is settled upon. That settled draft may be subject to public consultation (and further drafting iterations, based on feedback from that consultation) or the settled draft may be introduced to parliament.

And that, broadly speaking, is the drafting process. In the next post I will focus on how to make the initial written drafting instructions better, so that the drafting process can proceed smoothly and result in better legislation.

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[i] Of course, in the legal or constitutional sense, the law that results from the bill is made by Parliament when it is passed by both houses and receives royal assent. But in a practical sense, it is the drafters (not politicians) who write the actual text of the legislative provisions.

[ii] In my career generally, I have often found tools such as the DISC Assessment and the Herrmann Brain Dominance Instrument useful to understand the different personality types of people you work with. People often underestimate the extent that failing to account for the different outlook of someone else can affect how well you communicate with them.

[iii] I should say extreme personality conflict is rare because policy officers are also often selected for traits similar to those of drafters: we also tend to be rational and details-focused (but perhaps not to the same extent as drafters).

Behavioural economics and legislative policy: deciding on policy options

This post in brief

• Policy officers try to generate many options to solve a policy problem.
• It's common to present decision-makers with variations of the same type of option.
• In theory, if one of the similar options is clearly inferior it shouldn't affect how we assess the other options.
• In practice, a clearly inferior option makes the other similar option look even better in comparison to other dissimilar options.
• To avoid this, don't present inferior options to the decision-maker 'for completeness' or out of an abundance of caution.

Behavioural economics and legislative policy: deciding on policy options

In an ideal world, the policy development process goes something like this:[i]

1. Define the problem.

2. Identify several viable solutions.

3. Assess the costs and benefits of each solution.

4. Choose the best solution.

All very organised and rational. Of course, the actual process may vary in practice, but this model is often followed (and generally should be followed).

How do we choose the best solution? Obviously, assessing the costs and benefits should be the main consideration. 

However, what if the way we present options inadvertently triggers a cognitive bias that makes the decision making process misfire? Could behavioural economics provide any insight into how we could improve the process of choosing legislative policy options? Let’s explore one possibility.

Presenting policy options for decision

Once the policy problem is identified, typically policy officers will then try to identify a range of viable options for solution - usually as least three. After assessing the costs and benefits of each option, the options are then presented to senior decision makers (typically agency senior executives and then to the Minister), with a recommendation for a decision.[ii] In Australia, for most significant policy decisions this is done through a Regulation Impact Statement (or a ‘RIS’ as it’s more commonly known).[iii] In order to be comprehensive, policy officers may present different variations on a type of option. 

Insider trading as a hypothetical example

Say the policy problem we’re trying to address is the unfair advantage and economic distortion caused by insider trading. Let’s assume that, on average, a person who engages in insider trading profits by $50 000 for each instance. We might propose the following options:

Option1: Make it an offence to engage in insider trading with a substantial maximum penalty ($100 000 fine or jail).

Option 2: Make it an offence to engage in insider trading with a smaller nominal penalty ($1 000 fine).

Option 3: Create a civil cause of action for private citizens who are harmed by insider trading. They can sue the trader for the amount the trader has gained (an account of profits).

Options 1 and 2 are different variations on the same type of solution (criminal penalty), which only differ in the degree of consequence. Option 3 is a different kind of solution (civil proceedings).

If each instance of insider trading makes the trader $50 000 (on average) then option 2 seems clearly inferior to option 1. The cost of the fine is so small in proportion to the gain that some traders are likely to take the risk and continue to engage in insider trading. So it seems like the real choice is between 1 and 3.

Marginal or borderline options

Why include option 2 then? Often policy officers will put in a marginal option, such as option 2, ‘for completeness’: they will err on the side of caution by including a borderline-viable option so that the decision maker has a complete picture. 

It’s a cliché, but public servants often tend to be cautious: why risk excluding an option that the decision maker may have wanted to consider? It’s not always easy to decide what options are genuinely viable - different people will have different views of what is viable. In theory, the cost to the decision maker is small (the time taken to briefly consider and rule out the inferior option). The imperative to be thorough and consider all potentially viable options seems to outweigh the cost to the decision maker’s time (provided that really unviable options aren’t presented). 

Does it matter? However we choose between 1 and 3, the existence of the inferior option 2 shouldn’t affect the choice, should it? Previously I would have answered “no”. A rational decision maker would just ignore 2, and assess 1 and 3 on their merits.

Unfortunately decision makers (and all humans, for that matter) are not always rational …

Relativity in comparing decisions

We turn now to behavioural economics. In his book Predictably Irrational, Dan Ariely makes the case that when humans decide between options they consider benefits in relative terms, not absolute terms. This affects how we choose and often influences us to make an irrational choice.

As an example, Ariely put a subscription offer for The Economist magazine to his students. They could choose between an internet-only subscription for $59, a print-only subscription for $125, and a print-and-internet subscription for $125. In this case the print-only offer is clearly inferior to the print-and-internet offer for the same price. Theoretically, the existence of the inferior print-only option should not affect the choice between the two more attractive options.

What happened in practice? When Ariely presented all three options to his students, 84% chose the more expensive print-and-internet option. However, when he removed the inferior print-only option, only 32% chose the print-and-internet option. What is going on?

The option you don't choose does matter 

Ariely’s explanation is that when you have two options of the same type (in this case, the options with the same price of $125), the inferior option makes the superior option seem even better than when considered on its own … or against some other third option of a different type (the cheaper subscription). So even though the print-only option is dismissed, it makes the print-and-internet option look better against the internet-only option. This influences some people to choose the print-and-internet option that they would not have chosen in a straight comparison between the two clearly superior options.[iv]

How does this affect legislative policy decisions?

When we return to our insider trading example above, we can see that the options follow a similar structure: two plausible options of a different type (1 and 3), and one option that is of a similar type, but also clearly inferior, to one of the previous options (option 2).

Including option 2 isn’t only wasting the time of the decision maker. Because of our preference for easy comparisons between the same type of option, option 2 makes option 1 look better in contrast. And option 2 makes option 1 look better in comparison with option 3: better than if options 1 and 3 were considered on their own. Including option 2 subtly tilts the scales in favour of option 1.

How can we get better at making legislative policy decisions?

The implications of this research for policy officers now seem obvious: avoid including marginal or borderline options out of an abundance of caution, particularly when the option is of a similar type to another more plausible option. Of course this is a balancing act (all genuinely viable options should be considered). But erring too much on the side of caution and completeness doesn’t just waste the decision maker’s time: it also distorts the decision making process. 

The cautious among us (and I include myself here) will find it hard to do this, but carefully pruning borderline unviable options will help decision makers to make better policy decisions.

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Notes

[i] For brevity’s sake, I’m skipping some of the steps in the Australian Government Guide to Regulation that are not particularly relevant to the topic.

[ii] Of course, there are often many intervening iterations of preliminary decisions and consultation before the final decision.

[iii] Other documents such as internal policy papers, public consultation papers and ministerial briefs may also be used during the policy development process. However, under the Australian Government’s Guide to Regulation the RIS is intended to be the key document informing the ultimate decision maker before they choose a policy solution.

[iv] A different explanation for a similar phenomenon has been offered by mathematician Jordan Ellenberg in Chapter 17 of How Not to Be Wrong. Believe it or not, it relies on the democratic decision making processes of slime mould. While I don’t deal with it here, given it seems less applicable to human decision making, it is worth a read for those interested.