APPENDIX 1: CORRESPONDENCE ON IMPROVING
THE QUALITY OF SECONDARY LEGISLATION |
Letter from Lord Goodlad, Chairman of the Secondary
Legislation Scrutiny Committee, to Richard Heaton, First Parliamentary
Counsel, at the Cabinet Office
We observed in our last end of session report that
the Committee's work was made more onerous by the number of correcting
instruments that we had to consider during the session, whether
in the form of replacement drafts of affirmative instruments or
correcting instruments for negatives. Our observations indicated
that these corrections are due to both policy and drafting revisions.
It appears that the number of such instruments has continued to
increase in the current session.
Whist we understand that no figures on corrections
are collected centrally, even a simple search of the number of
Statutory Instruments with the rubric heading which states that
they have been issued free of charge demonstrates that, in the
first six months of 2014, 45 such instruments have been issued,
which compares with a total of 43 instruments for the whole of
2013 and 48 in 2012. So far this year 15% of the affirmatives
that the Committee has considered have been corrections.
Given your promotion of the Good Law initiative across
government, the Committee has asked me to draw this to your attention
and ask for your views on why the problem has arisen and how it
may be remedied.
3 July 2014
Letter from Richard Heaton to Lord Goodlad
My office is strongly committed to excellent legislation,
both primary and secondary. Parliamentary Counsel is not responsible
for secondary legislation; this is the accountability of individual
departments and, increasingly, of the Treasury Solicitor's Department
which is expanding to become the in-house provider of legal services
for most departments across Whitehall. But Jonathan Jones (the
new Treasury Solicitor) and I are keen to raise the standard and
improve the consistency of secondary legislation drafting. I hope
the growth of a shared legal service provided by Jonathan's department
will make this easier, for example by better monitoring of quality
across legal teams, and more flexible use of experienced and skilled
Meanwhile, my office are active participants in the
training of government lawyers, running regular training in drafting
skills for government lawyers, both for individual departments
and under the Government Legal Service's training programme. This
training is aimed at raising the standards of drafting and focuses
on the importance of ensuring accuracy and a clear and coherent
outcome. A cross-Whitehall group of drafting specialists exists
to act as a point of contact and facilitate the sharing of best
practice. The reports of your Committee and of the Joint Committee
on Statutory Instruments are important pointers to areas on which
we need to focus.
I know from my own experience as a departmental lawyer
that correcting instruments are something that all legal teams
try to avoid. I do not know the reason for the recent increase
you have experienced: I will bring this to GLS colleagues' attention,
and we will try and discern any pattern or underlying cause. Meanwhile,
if your Committee or supporting staff have any information or
analysis that you could share on the problems you are observing,
I know we would find that helpful in better understanding how
departments are falling short.
I am copying this letter to Jonathan Jones.
14 July 2014
Letter from Richard Heaton and Jonathan Jones, Treasury
Solicitor and HM Procurator General to Lord Goodlad
We are very pleased to announce an initiative that
we hope will lead to significant improvements in the drafting
of statutory instruments. We propose to set up a new team on a
trial basis as a "statutory instrument hub". The hub
will bring together drafting lawyers currently working in a range
of Whitehall departments, under the leadership of an experienced
drafter from the Office of the Parliamentary Counsel and a senior
lawyer from the Treasury Solicitor's Department. It will be formally
launched this December.
The hub will aim to improve quality and efficiency
of SI drafting in a number of ways. It will centralise and co-ordinate
knowledge management, training, guidance and mentoring. It will
look for examples of best practice to share and also seek to embody
"good law" principles of clarity, coherence and simplicity
in drafting. It will be a source of support for both lawyers and
policy officials, improving understanding of processes and promoting
consistency and coherence of approach.
Lawyers drafting in the hub will benefit from intensive
training and mentoring, enabling them to produce higher quality
drafts themselves and also provide higher quality mentoring to
drafting lawyers outside the hub.
The pilot will also test ways of delivering additional
high quality, efficient drafting services to Whitehall teams where
these are needed and can add value. As part of this, it will aim
to co-ordinate the use of freelance drafting services to provide
quality assurance and ensure value for money.
More generally, as part of measures to improve quality
within the Treasury Solicitor's Department (which now includes
most Government advisory legal teams), heads of teams have been
asked specifically to report weekly on any criticism or other
feedback from Parliament (including your Committee and the JCSI)
on the quality of SI drafting. This will assist in identifying
any problem areas or common issues so that they can be quickly
addressed and disseminated among drafting lawyers, as appropriate.
Finally, we hope that the hub will be able to open
a dialogue between the Treasury Solicitor's Department and officials
and legal advisers at both the JCSI and the Scrutiny Committee.
We are very keen that the hub should work closely with colleagues
in Parliament to identify innovative ways to address the quality
issues which concern us all.
3 November 2014