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.