Common Legislative Solutions A guide to tackling recurring policy issues in legislation Guidance on Instructing: Common Legislative Solutions | 1 Contents Foreword Designation of bodies Page 3 5 Page 27 Introduction Licensing schemes 1 Page 4 6 Page 30 Establishing a statutory corporation Powers of entry 2 Page 6 7 Page 36 Strategies Fixed penalty notices 3 Page 19 8 Page 44 Collaboration Preventative orders 4 Page 23 9 Page 49 © Crown copyright 2019 WG39040 Digital ISBN: 978-1-83933-218-0 Mae’r ddogfen yma hefyd ar gael yn Gymraeg / This document is also available in Welsh Guidance on Instructing: Common Legislative Solutions | 2 Foreword – Counsel General for Wales Foreword – First Legislative Counsel The rule of law underpins our society and democracy. As the legislative drafting office for the Welsh Part of my role as Counsel General for Wales is Government, the Office of the Legislative Counsel to ensure that the law is certain, that it applies aims to produce clear, effective, and accessible law equally to all and that we as a Welsh Government for Wales in English and in Welsh. Producing new law act within our powers. But the law is becoming is a complex undertaking which generally requires increasingly inaccessible and that despite us living analysis and understanding of difficult issues. For this in an information age in which citizens rightly expect reason laws benefit from the input and scrutiny from a to be able easily find out about things that affect wide range of perspectives: policy, legal, linguistic and them – their rights and, indeed, their responsibilities. practical. To assist that process we hope to share This problem is exacerbated by cuts in legal aid and other advisory services the experience and expertise we have developed as the drafters of all which make it considerably more difficult for people to receive help to address Welsh Government bills since full law making powers were conferred on the legal issues. This brings a social and democratic cost. National Assembly. The genesis of this guidance is in work undertaken by the National Archives The Welsh Government is committed to a long term programme to make the to research patterns which occur in legislation: in other words, common law in Wales more accessible. This is primarily to be done by consolidating legislative solutions to policy questions or problems which occur frequently. legislation into codes of law on particular subjects and improving the way So where legislation is being developed in those commonly recurring areas, legislation is published and explained. In addition, however, we aim to we hope that this guidance will act as a useful tool to enable the best make legislation easier to read and understand. One of the ways of doing possible quality of Bill instructions to be provided to counsel – allowing us in that is to minimise unnecessary inconsistencies in the way similar issues turn produce legislation more efficiently and effectively for Ministers and to are dealt with in legislation. This guidance, therefore, proposes potential help users of legislation by making it clearer and more consistent. solutions to commonly occurring legislative problems and its aim is to help those who develop, scrutinise, and use legislation to understand how best The guidance has been produced in collaboration between members of each to address them. of the four legislative drafting offices in the UK, who have consulted officials across all four administrations in refining it. It represents an excellent example of civil service collaboration, exemplifying principles of mutual respect and Jeremy Miles AM cooperation in the carrying out of one of our most essential public functions, the creation of good law. We welcome any suggestions and feedback on this guidance from all those who take an interest in legislation as we work to continuously improve the quality and accessibility of Wales’s law. Dylan Hughes Guidance on Instructing: Common Legislative Solutions | 3 1 Introduction This Chapter contains a brief overview of the process of making policy for legislation, and explains how the detailed guidance in the following Chapters fits in with that process. Developing policy for legislation The aim of the detailed guidance is to stimulate thinking, increase awareness of possible options, improve the quality of instructions, and improve the A traditional model for developing policy for legislation is as follows: efficiency of the policy-making and instructing processes, by articulating • identify what the issue or “problem” is matters that may need to be addressed. • think of possible solutions and the advantages and disadvantages Please note, however: of each solution • The detailed guidance in the following Chapters sets out matters that may • analyse the possible solutions and their advantages and disadvantages, need to be considered. Some of these matters are likely to arise in all or and select the most promising solution most cases, but other matters may arise only sometimes or even rarely. • if a legislative solution is chosen, work up the proposed solution in So please don’t assume that the instructions necessarily need to address sufficient detail so that draft legislation could be produced all the issues identified in the detailed guidance. • test the worked-up solution against a range of factual scenarios to see • Depending on the policy, it may of course be the case that something not whether the solution would have the desired effect in those scenarios. mentioned in the detailed guidance is wanted – whether in addition to the In the course of doing this, policy makers will of course need to work out what matters mentioned there or instead of some of those matters. the existing legislative landscape is, and how that affects, and is affected by, • Above all, it must be emphasised that although the detailed guidance the proposed solution. aims to assist policy makers and instructors, it is not intended to constrain thinking and is not a substitute for working out what is really wanted from Some policy issues that arise are novel or unique, and as such may require a policy perspective. creative thinking and entirely novel solutions. Similarly, sometimes what is wanted is a new solution to a commonly occurring problem. We hope that the detailed guidance will also help policy makers when they are dealing with any other topics upon which legislation is required, But there are some commonly occurring policy issues that are dealt with by as the detailed guidance in the following Chapters is a guide to the level adopting a commonly occurring legislative solution. That is what this guidance of meticulous analysis that needs to be undertaken whenever policy on is concerned with. legislation is developed and instructed on. For these cases, it is possible to identify issues that may need to be addressed, when working up and instructing on the proposed solution. That is what we have done for a number of legislative solutions. Guidance on Instructing: Common Legislative Solutions | 4 Format of following Chapters Additional solutions to be added in future Each Chapter deals with a particular legislative solution, and is in the We hope to expand this guidance over time, to include detailed guidance following format: on other legislative solutions, including: • offences Description of the solution • civil penalties This high level description is intended to assist policy makers in selecting • appeals the correct solution for the policy issue they wish to address. • giving notices Where there is a section on related solutions, the aim is to draw the policy • publishing documents maker’s attention to alternative policy solutions. • guidance (including codes of conduct and codes of practice) Elements of the solution • information sharing • reorganisation of public bodies (including merger and dissolution) This section consists of a series of questions that the instructor may or will need to address, in order to enable the drafter to produce a draft. • ombudsmen • subordinate legislation. Examples of the solution Any suggestions as to other legislative solutions that might be covered would This section lists examples of the solution, so that policy makers, be welcome. instructors and drafters can easily locate examples of the solution. These examples show the policy and drafting choices that have been made in other contexts. Again, the aim is to show examples that reflect a range of policy choices that have been made, not to constrain thinking. Guidance on Instructing: Common Legislative Solutions | 5 Chapter 2: Establishing a statutory corporation Contents Description of the legislative solution 7 Related legislative solutions 7 Elements of the legislative solution 7 1. Name and status of the statutory corporation 7 2. Positions to which appointments are made 7 3. Appointment of members or office-holder 8 4. Termination of appointment 8 5. Conflicts of interest 9 6. Effect of vacancy or other defect on validity of acts 9 7. Payments to members 9 8. General powers 10 9. Procedure 10 10. Committees 10 11. Staff 10 12. Delegation 11 13. Execution and authentication of documents 11 14. Money 11 15. Plans, estimates and reports 12 16. Accounts and audit 12 17. Control by Ministers or legislature 13 18. Other legislation relating to duties and scrutiny of public bodies 14 19. Reorganisation of existing public bodies 14 20. Power to dissolve the new statutory corporation 14 Examples of the solution in Acts passed in 2012-2016 15 Annex: other legislation about public