Letter from the First Parliamentary Counsel
to the Legal Adviser |
15. Thank you for your letter of 28 November,
which I have now considered with some of my colleagues here and
with other interested parties. The content of legislation is decided
by ministers, and it is worth remembering that I can give only
the draftsman's perspective.
You ask whether (and when) provisions of the kind
you mention are acceptable. They have been included in legislation
for many years. They are typically included in Bills which make
significant changes to existing complex bodies of law. They are
typically included because it is not possible to guarantee that
the provisions of the Bill itself are complete or because (at
the time of enactment) it is difficult to predict the precise
transitional and other arrangements that will be needed. They
generally confer power to deal with matters on which Parliament
would not expect to be burdened with further primary legislation,
though Parliament's ability to scrutinise the provisions made
under the power concerned is not removed. While at first sight
provisions of the kind you mention may seem of very wide scope,
they will have to be interpreted with regard to the context of
the Act in which they appear.
Assuming that ministers decide that a provision of
the kind you mention is merited, you ask why different ones are
drafted in different ways. I can deal with substance and then
As for substance, the draftsman will seek to produce
a provision that is apt for the Bill concerned. A number of different
elements will need to be considered. At one extreme he may be
pretty sure that only consequential provisions will be needed.
But things are rarely so clear. So he will ask himself whether
incidental or supplementary provisions might be needed, and whether
transitional, transitory or saving provisions might be needed.
Some of these elements overlap to some extent, but there are aspects
of any given element that are not covered by the others. Depending
on the circumstances, he may decide to include some or all of
The draftsman will also consider whether a power
to amend primary legislation should be included. He will even
consider whether there should be power to amend the very Act that
confers the power. This last may arise, for instance, if an Act
gives effect to a treaty which may itself be subject to future
Once the whole range of elements has been considered,
the power that emerges will be designed to fit the circumstances
of the particular case. That is why different powers will emerge
in different cases.
But there is also an element of judgment. On the
one hand, the draftsman will not want to include a power to do
something which he knows will not arise. On the other hand, when
the Bill is being drafted it is often unclear precisely what powers
might be needed after enactment; having weighed the risk, the
draftsman may think it wise to include a particular element.
Taking all this into account, I think it will be
clear why different powers are conferred in different cases. I
think this exercise also neatly illustrates the proposition that
legislative drafting is more an art than a science.
You also ask whether a standard form could be adopted
for provisions of this kind, in which case departures would have
to be justified. It follows from what I say above that any standard
form would have to be drafted in the widest possible terms. It
would have to allow for any reasonably foreseeable use of a power
of this kind, having regard to all future Bills (so far as it
is possible to make any prediction). I am not sure that the Committee
would welcome this.
I said that I would deal with differences of style.
The draftsman will want to ensure that his provision is drafted
in a way that fits with the style of the rest of the Bill. And
the style of Bills differs from draftsman to draftsman just as
the style of many documents differs from writer to writer. So
there are likely to be differences as between provisions of the
same sort but found in different Bills.
Finally, you mention the level of Parliamentary control
- that is, whether the negative or the affirmative procedure is
appropriate. The question is one of policy for ministers. They
always take the views of your Committee very seriously. And (as
with all legislation) the final decision rests with Parliament.
9 December 2002