Overcoming writer's block

Drafting legislation is fraught with difficulty: no matter how well-intentioned a proposed law, if you haven't done your homework properly then it can run into a brick wall in Westminster Palace. Writing in Whitehall and Westminster World, Susanna Kalitowski and Matt Korris explain how to write law that has the best possible chance of a smooth passage.

Some bills slip almost unnoticed through Parliament; others run into a wall of opposition from parliamentarians and media.

Our research shows that good management of the bill-writing process plays a crucial role in deciding how proposed laws fare: having studied the development of five recent acts of Parliament, conducting more than 80 interviews with ministers, MPs, peers, officials and pressure groups, we found that bills' fates are determined as much by their development and presentation as by their content. The keys to facilitating a smooth journey, we discovered, are thoughtful preparation and consultation, flexibility, and willingness to compromise.

Preparation and consultation

In general, bills that are carefully prepared and consulted on experience an easier passage. While the Welfare Reform Act 2007 (see box) was expected to face heavy opposition, it passed with widespread support; this was partly due to its lengthy gestation, and the evidence of pilot projects which convinced some sceptics that its proposals would be effective. By contrast, the Legislative and Regulatory Reform Act 2006 was expected to pass easily but in fact generated considerable controversy. The bill was described by a departmental official as a ‘work in progress' which had been rushed to Parliament prematurely at the insistence of ministers.

The quality of consultation with external stakeholders is crucial, as effective consultations help to generate public support. Consultations should be as accessible and transparent as possible, making it clear which decisions have already been taken and which areas are still open to influence and change; those which are unclear or do not accurately reflect the eventual bill will be derided by stakeholders.

In fact, it is useful to recruit stakeholders in support of a bill as early as possible. Parliamentarians listen closely to the concerns of external groups, and proposals supported by stakeholders are less likely to attract criticism. Campaigners involved with both the Equality Act 2006 and the Export Control Act 2002 felt they were listened to during consultations on the bills, and as a result they were more supportive when they reached Parliament.

Ironically, parliamentarians themselves are among the least consulted groups, often having little or no formal input to the policy development process until bills reach Parliament. Nevertheless, there is some level of informal influence - particularly from MPs of the governing party. The government has repeatedly stated its intention to produce draft bills for pre-legislative scrutiny by parliamentarians more regularly; doing so could highlight important issues and save time later in the process.

Flexibility and compromise

Parliamentarians of all parties told us that there is a predominant belief within government that to change a bill is a sign of weakness - yet flexibility on the part of ministers and civil servants can greatly assist the passage of a bill. Small changes to the Welfare Reform Act made its passage relatively trouble-free, whilst the failure to make changes in the early parliamentary stages of the Legislative and Regulatory Reform Act provoked a groundswell of embarrassing parliamentary and public opposition.

Civil servants can play a key role in maintaining a consensual passage by meeting with parliamentarians and external stakeholders to see whether their concerns can be addressed without adversely affecting the policy. Meetings are more common with peers than MPs, perhaps due to the perception that there is less partisanship in the Lords.

Secondary legislation

Civil servants can also have a positive impact by providing as much information as possible to explain and support a bill. An increasing amount of the detail of new laws is contained in secondary legislation, which is frequently unavailable when a bill is being considered by Parliament. Ensuring that at least some draft secondary legislation is provided alongside a bill can go a long way towards alleviating parliamentarians' concerns.

Uncontrollable factors

As any seasoned civil servant knows, a number of issues beyond the influence of Whitehall can affect a bill's passage: ministerial changes, Parliament's legislative workload, and the size of the government's majority are all important here. Finally, the amount of political will behind a bill can be hugely significant. Considerable pressure emanated from No 10 to get the Immigration, Nationality and Asylum Act passed quickly, whereas the Export Control Act, which was viewed as less of a priority, was allowed to develop gradually over six years.

Some factors, of course, are beyond the control of those drafting our laws - but by using the levers that they do control, civil servants can play a crucial role in deciding bills' passage through the Houses of Parliament.

Susanna Kalitowski is a research fellow and Matt Korris is a researcher on the Hansard Society's Parliament and Government Programme. Law in the Making: Influence and Change in the Legislative Process can be ordered here.

This article was published in Whitehall and Westminster World on 11 September 2008.