One aspect of the recent debates surrounding the Terminally Ill Adults (End of Life) Bill moved by Kim Leadbeater MP was the criticism expressed of the Bill’s drafting – that is, the actual text of the Bill’s provisions as distinct from their underlying policy objectives or purposes. The concerns with this language were largely put to bed when it emerged that the Bill had been drafted by Dame Elizabeth Gardiner, the former First Parliamentary Counsel (FPC, the head of the Office of the Parliamentary Counsel – the legal drafters who draft Bills moved in the UK Parliament).

In this post, I want to challenge two ideas about how the language of a Bill emerges, not least because legislative drafting is a seldom discussed, and (with respect to those who have engaged with this issue in the context of the Leadbeater Bill) considerably underappreciated, aspect of how primary legislation is made at Westminster and its devolved counterparts. The point here is to demonstrate that although Dame Elizabeth’s considerable expertise and experience answered many of the concerns relating to drafting, discussions around drafting at times proceed from a fundamental misunderstanding of how Bills are drafted and who is responsible for their text. As such, any critique of the drafting of any Bill needs to closely reflect the reality of drafting as a process. I do not address any of the language in the Leadbeater Bill, and I express no opinion on the merits or otherwise of the drafting of that Bill. The insights provided here have emerged and continue to emerge primarily from my own doctoral research and the available literature, discussed further below, focussing on drafting and drafters.

Idea one: the language of a Bill can be addressed separately from the underlying policies

Put simply, it can’t. Drafting a Bill is not sequential, in the sense that a moving party (a minister or a non-government legislator) decides the policies underlying a Bill in full before sending instructions to drafters. Instead, drafting is dialogic. Instructions are sometimes ‘settled’ (in the sense of there being no further changes to these instructions) just as the final draft of a Bill is prepared.

Typically, the dialogue in relation to drafting government Bills involves three main (groups of) actors: the relevant minister, their departmental civil servants and the drafters. Ministers decide and civil servants set out the kinds of policies a Bill must contain, in response to which drafters provide legal text reflecting these policies. Civil servants then consider this text to check whether it accurately reflects the policy choices before passing it up to their minister to decide whether they are content with the text and its underlying policy choice. This is an important check, because ministers should not only consider whether the text is suitable, but whether, in light of what the text reflects, the underlying policy is itself suitable and/or desirable. Many factors may be weighed in this decision. These include any manifesto commitments by the governing party (particularly if the Bill in question is preceded by policy documents such as White Papers), the likely attitude of Parliament as a whole and opposition parties specifically to the legal text and its underlying policy, the government’s legislative agenda for the corresponding parliamentary session and consequently the parliamentary time which might be needed to debate the particular legal text and underlying policy (and whether the government can afford that time in its overall legislative agenda). A number of these points also involve decision-making at the cabinet level, where the Parliamentary Business and Legislation Committee (formerly the Legislative Committee) takes centre-stage. An important factor which is relevant to the overall desirability of one or more policy objectives (and thus the text which reflects them) is the impact of the Bill in question on other matters if it is enacted. Advice on this front comes primarily from exchanges between departmental officials dealing directly with the relevant Bill, and their colleagues in departments which have an interest in (and would be impacted by) the Bill. This advice in turn is at least partly informed by how drafters scrutinise the policies on which they are instructed (more on which, below). Thus, although it seems as if this decision-making process marks a clear separation of policy and text, ministerial decisions around the policies in a Bill have considerable input from civil servants and drafters.

If, in light of these or other considerations, civil servants advise and ministers decide that the policy – and thus the text – need to be reworked, drafters are further instructed accordingly. In other words, the whole dialogue of policy to text to policy starts again. Although this account is a simplified version which cannot speak for the myriad variations which exist in this process (though I turn to one such variation in more detail further below), the inherently dialogic nature of drafting is a powerful reason why lines between policy and text are practically, and thus should be conceptually, very difficult to draw.

This is also why the policies underlying Bills are sometimes finally decided at an advanced stage of the drafting process. For example, as part of my research in the National Archives revealed, one of the key provisions in the European Communities Act 1972 – section 2(1) – which gave domestic effect to all ‘rights, powers, liabilities, obligations and restrictions from time to time’ under EU (then EC) law without further enactment, was not finally settled until 6 months after instructions had first been sent to parliamentary counsel. The underlying policy underwent successive changes in response to draft text developed by then FPC Sir John Fiennes. While the text was initially precise as to which powers, obligations, etc., the Bill would be giving domestic legal effect, the Law Officers favoured language which was more general and vaguer, to avoid having to amend the Bill with each evolution or expansion of EC competences in future. This preference fundamentally altered the policy instructions and thus the text. For perspective, Sir John was provided the initial drafting instructions in July 1971, the Law Officers communicated their preference in December 1971, Sir John provided the final version of the text which became section 2(1) on 8 January 1972, and the entire Bill was introduced in the House of Commons on 25 January 1972.

The process is different for non-government legislators, who do not typically have access to departmental officials or their wealth of knowledge and experience. But where non-government legislators use drafters, the drafters carry out their task in much the same way as they would if they were instructed by the government. Policy instructions are scrutinised and a dialogue between the drafter and the non-government legislator produces the final Bill. The unavailability of departmental officials as sources of expert advice notwithstanding, the fundamental point remains the same: questions of policy and text are not determined separately but in tandem with one another. 

Idea two: drafters are responsible for the language of a Bill

Overall, they are not – as the above discussion shows. But here, we need to dig deeper into what we mean by ‘responsible’ and ‘language’. 

From a parliamentary and wider political perspective, the responsibility for anything contained in a Bill lies with its mover or proposer – a minister (for a government Bill) or a non-government legislator (for a Private Members’ Bill). Within the drafting process, however, lines of responsibility are less straightforward. Drafters are charged with physically writing the text that will, subject to the decisions of its policy actor(s), form the Bill to be introduced in Parliament. This is not a function into which other actors can casually intervene without consequence. Early in the drafting of the European Communities Bill (as it then was), for example, Sir John Fiennes made a terse complaint to the Cabinet Office that the head of its subcommittee on the Bill – Sir Charles Sopwith – was attempting to dictate the language and form of the Bill which Sir John was in the process of writing. That said, the dialogic character of drafting means that departmental officials and indeed ministers can suggest changes to the legal text and these changes are debated between them and drafters – sometimes fiercely. Ultimately, however, and as canvassed earlier, drafters do not sign off on the language of a Bill – this decision rests with the mover or proposer of the Bill in Parliament. There are sound reasons for this, among the most important being that drafters, as lawyers in the service of government bound by (among other things) legal privilege, cannot openly discuss or account for their work in Parliament. Thus, the Bill’s mover or proposer takes responsibility for the contents of the Bill they introduce.

When looking at the language of a Bill, it is true (indeed, trite) that drafters draft text. The evolution of a Bill’s text thus depends on the interaction between what drafters write and how that written text is assessed by the policy actor(s) involved in the Bill’s production. But the assessment of a Bill is not unidirectional. I adverted earlier to the fact that policy actor(s) will, at some point in the drafting process, need to decide whether the policy or policies on which they instructed drafters remain desirable when translated into legal text. In a similar vein, drafters will also assess their own instructions. As former parliamentary counsel (and current House of Commons Parliamentary Commissioner for Standards) Daniel Greenberg colourfully notes:

When the instructions […] arrive, the most important thing is to approach them with the assumption that every single word of what they say is based on a misconception. The most useful assets that the drafter brings to the legislative process are scepticism, ignorance and pedantry. The scepticism leads one to assume everything anybody says is wrong unless and until proven right; the ignorance causes one to ask penetrating questions that go all the way back to the foundation of the proposals […]; and the pedantry leads one to analyse each concept to destruction (Laying Down the Law, p 153).

Policies (and thus the text reflecting them) can change in response to this piercing analysis. In a 2009 paper in Public Law, public policy scholar Edward Page set out a composite hypothetical Bill (based on privileged papers which Page was allowed to view but not to publish) to illustrate this impact. In his hypothetical Bill, the name of a body – the ‘National Independent Car Safety Agency’ – is dropped when parliamentary counsel point out that the body was not national, independent, concerned with car safety or, strictly speaking, an agency.

To be clear, drafters do not decide questions of policy. Instead, they typically scrutinise policies to elucidate concerns or problems, leaving it to the policy actor(s) to make the decisions around them. But drafters may also suggest policy ideas. My research at the Public Records Office Northern Ireland for example, shows that the inter-governmental agency provisions in the Northern Ireland Constitution Act 1973 (where a devolved Northern Ireland departmental official would be charged with carrying out tasks for a UK Government department or vice versa) came primarily from First Parliamentary Draftsman (the former Stormont equivalent of the FPC) William Leitch, based on his own personal experience under a previous such arrangement. The ultimate decision whether or not to include such suggestions in a Bill, would, even here, rest with the politically responsible actor – the minister or non-government legislator. The point here is to demonstrate, as before, that policy and text are not easily disaggregated, even when there is always a clear line of political responsibility.

But in this general interaction between drafters and policy actors, a space emerges where one can track the evolution of a Bill’s legal text and critique this evolution. The critique can be grounded by reference to a number of factors which condition this evolution, including values generally said to underpin good drafting, such as those set out by the first ever FPC, Henry (later Baron) Thring or those explored by legislative drafting scholar Helen Xanthaki. 

The issue here is that this evolution does not occur in the public eye. Draft texts (whether Bills or instructions) and their assessments, the exchanges between drafters and policy actors, and decisions made by ministers and by Cabinet all lie under a normally impenetrable veil of secrecy (with good reason). Moreover, by the time a Bill is published, the space to critique its textual evolution vanishes. At this point, all we can see is the finished product, with a single person responsible to Parliament for it. Any critique of the text, therefore, is made in an almost-complete vacuum. These difficulties are why Page created a hypothetical Bill based on real documents he saw (but could not publish from), and why my own research involves papers released to the public via the National Archives and relating to Bills drafted, moved and enacted in the 1970s.

Rarely, it is possible to infer – with reasonable justification – the reasons behind drafting that might seem unusual. A prime example is clause 9 of the Bill of Rights Bill, which was withdrawn in June 2023. This clause, titled ‘Jury trial’ begins with a bizarre subsection:

The ways in which the right to a fair trial is secured in the United Kingdom include, in the case of a person charged with an offence, legislation under which […] the person is tried before a jury.

Well, quite.

Clause 9(1) of the Bill of Rights Bill is largely a superfluous provision, which neither creates a substantive right nor extends an existing right. So why would a drafter include such a provision in this Bill? Thinking through the reality of drafting – and particularly the lines of responsibility for the language of a Bill – it may be that clause 9(1) was a product of political drive rather than drafting wisdom.

Conclusion

Nothing I have said here should be taken to mean that I regard legislative drafters as infallible or generally beyond criticism. Indeed, there are examples from my own research of drafters expressing themselves in ways which range from ill-advised to outright disturbing. 

Instead, the point here is to show that concerns with the drafting of a published Bill (as distinct from its policy objectives) – as indeed has been the focus of part of the discussions around the Leadbeater Bill– mean very little when considering the reality of legislative drafting. The language of a Bill does not buttress the Bill’s policy objectives – it embodies them. Indeed, that is precisely the point of a published Bill; it means the drafters have done their work to the satisfaction of the Bill’s proposer. Consequently, critiques of legislative drafting as sometimes arise in debates around Bills add little if anything to the critique of the Bills themselves. As explored above, policy and text dialogically lead to a finished Bill. Thus, isolating one part of this dialogue (which, as explained above, is very difficult in any event) ultimately hobbles any analysis.

More prosaically, such critiques of legislative drafting do not necessarily impact legislative drafting, which continues as dialogically as it has done for a long time. Since the establishment of the Office of the Parliamentary Counsel in 1869, the role of drafters and their interactions with instructing departments and their ministers have remained remarkably stable. Indeed, criticisms of legislative drafting themselves are as old as the profession of parliamentary counsel. As Lord Thring once observed (The Quarterly Review, vol 136 January 1874, p 55-56):

Everybody is a reformer. Every woman can say, and every man can write, how a scheme could easily be framed by which one small volume, or at most a few small volumes, should comprise, in a form intelligible to all, the wrongs of man, the rights of women, the mode in which those wrongs should be redressed, and those rights enforced. Opinions differ as to the reasons why the world is deprived of so great, so easily attained a boon. The House of Lords blames the House of Commons; the House of Commons makes an onslaught on the obstructiveness of the Lords; the Judges, with characteristic impartiality, denounce both Houses equally. On one point alone Lords, Commons and Judges alike agree, namely on the incompetency of the officials entrusted with the task of drawing Acts of Parliament: ‘et otiosa credidit Neapolis et omne vicinum oppidum’ (‘according to idle Naples, and every town in the neighbourhood’ – a reference to Horace’s Epodes, line 45)

Anurag Deb is a PhD Candidate at Queen’s University Belfast.

I am grateful to Paul Scott and Mike Gordon for their helpful comments on an earlier draft.

(Suggested citation: A. Deb, ‘The language of laws: Situating legislative drafting in its proper context’, U.K. Const. L. Blog (16th December 2024) (available at https://ukconstitutionallaw.org/))