Have you recently worked on some legislation and found that not everything went quite to plan? You’re not alone – turning policy into legislation is an art, not a science. In this article our Lead for Public Policy Jennie Kerr walks you through some common challenges with legislation projects, and gives some practical tips for dealing with them.
Turning policy into good law is an important skill for today’s policy professional. Unfortunately, if you don’t manage your legislation project effectively, you’ll be constantly putting out fires. This means your efforts will be misdirected, mistakes will creep in, important priorities will get missed, and you’ll end up with poor law.
Ultimately, poor law means poor policy outcomes. Stakeholders are left scratching their heads, public participation dwindles, and litigation can become an unfortunate necessity. Sometimes, if things are really bad, remedial legislation has to be drafted to fix the initial mess.
And let’s not forget the human factor. Difficult legislative projects can be a high-stress rollercoaster. The folks drafting and delivering these reforms often face extreme pressure, which isn’t great for their wellbeing or job satisfaction.
The good news is that many risks can be addressed early on and are within your control as a policy professional – or at least they can be managed with a bit of planning and effort. Here are my top three risks, and advice on how to tackle them.
RISK #1: Policy or instructions that aren't well-formed
In my experience, this is increasingly common, especially with ambitious policy reforms. Sadly, if you’re the Parliamentary Counsel Office and responsible for drafting the legislation, it’s like getting a half-baked cake and having to work out what the missing ingredients are.
One cause of this is multiple policy agencies being involved in the drafting instructions. Picture this – policy agencies bickering, murky roles, and no common vision. Yep, it’s a recipe for confusion when you’re trying to draft coherent legislation.
Another reason for poorly formed policy or instructions is that a key policy issue hasn’t been decided. For example, ministers have changed direction and some of the details have not been decided. Or the policy approvals were put together very quickly and are inconsistent in places. Or it could be that the drafting instructions don’t cover usual matters for Bills, such as how those affected by existing laws will transition to complying with the new law.
So what can you do?
TIP: Have an agreed lead agency
If you find yourself needing to instruct the Parliamentary Counsel Office in conjunction with other departments, then take steps at the outset to ensure that each agency’s role is clear and there’s good co-ordination. You don’t want two sets of drafting instructions being sent over (yes, it does happen).
TIP: Identify a clear directing mind
This isn’t an official job title, but you need a clear directing mind behind the scenes to help resolve ambiguities and conflicts – both between agencies and within your team. There will always be points of detail that will need more clarity, so make sure you have someone in your team with the capability and capacity to resolve these issues – it’s a sound investment.
You want to avoid a “post-box” approach, where someone just transmits all the policy content through for drafting but doesn’t make sure it’s coherent.
TIP: Obtain good policy approvals
If you know that the policy isn’t well-formed around the details, or maybe there has been some major flip-flopping going on at ministerial level, then take a bit more time to get more clarity on the policy outcomes if you can. It will save you time in the long run.
And while we’re talking about investing time, when you pitch your Cabinet paper for policy approvals it’s worth putting in the time to achieve the right level of detail. You’re aiming for enough detail on policy outcomes that Cabinet has sufficient information to agree the policy, but you don’t want to set out specific wording or specific drafting approaches that later limit the development of the most appropriate legislative solutions during the drafting phase.
TIP: Get a legal analysis of the instructions before they go to the PCO
This will identify any legal issues early on, such as unclear language about who the laws apply to, constitutional questions, or inconsistency with other relevant laws.
The Parliamentary Counsel Office also has some great templates for drafting instructions. These will help you make sure you don’t forget important details like whether the law is binding on the Crown, what transitional provisions should be put in place, and whether you need consequential amendments to other legislation.
RISK #2: Overly ambitious timeframes
This is another common risk for legislative projects, though I will freely admit that it’s much harder to manage.
Sometimes the clock is just ticking way too fast, so that from drafting to delivery, time is not on your side. The problem might be ministers focussing on quick wins. Or perhaps for other reasons the implementation date chosen for the bill to take effect is unrealistic – which is sure to spell disaster before the law even hits the ground.
Setting an ambitious timeframe can seem like a good idea, but sometimes it can result in really poor outcomes for your reform. An example is the Fisheries (Electronic Monitoring on Vessels) Regulations 2017, which required fishing vessels to install cameras on board, with high-risk vessels having to comply by October 2018, 15 months after the regulations were made. The government had to keep amending the regulations to delay the implementation, which undermined the credibility of the reforms.
So how do you manage for this type of risk?
TIP: Plan, plan, plan your timelines out
It’s never too late to consult the Parliamentary Counsel Office and use its Bill timeline tool to plan out your timeframes. Yes, sure, some bills have been drafted in four weeks, but that’s far from ideal and brings a high chance of errors slipping through, possibly requiring remedial legislation. The larger and more complex your legislative project, the more drafting time will be needed to get it right.
TIP: Consider putting out an exposure draft
This is a version of the draft Bill that you can release for public consultation before the Bill is formally introduced to Parliament. This allows interested groups and individuals to provide feedback and ensure the legislation would work in practice.
TIP: Give your best frank advice on delivery timings
Yes, this can be very tricky in the face of strong demands from ministers on timelines. But give your best advice on what can realistically be delivered and the potential consequences of going too fast. The Parliamentary Counsel Office can help you provide realistic advice on timeframes.
I’m aware of examples of bills that were sped up, without ultimately saving any time for the lead minister in delivering on their reforms.
RISK #3: Novel or non-standard processes
Requests for novel or non-standard processes are increasingly common in legislative projects. The most common ones I have seen involve drastically reducing the Select Committee time, or dividing the bill up into multiple legislative vehicles.
Innovation is generally thought of as a good thing, but this type of innovation is more akin to trying to reinvent the wheel. Sometimes, seasoned processes are ditched for new, untested ones, resulting in a lot of unnecessary complications and delays.
So what should you do?
Tip: Push back and advocate for a standard process
If you’re being asked to run a non-standard or novel process for your bill, then advise firmly against it. The standard process has proven itself repeatedly, and new processes often do not save any time overall. Ultimately, the decision is one for government, but the job of officials is to identify the risks and provide free and frank advice.
If you’re having trouble persuading others on this, then think about whether you can enlist support from others in the system such as the Parliamentary Counsel Office or the Department of Prime Minister and Cabinet. This won’t be their first rodeo.
And don’t forget standard project-management good practice
Finally, I’ve got one more tip for you. Legislative projects are like any other in that they will benefit from good project management, such as identifying risks early on, and actively managing them in collaboration with others working on the project. So take the time to manage your legislation project effectively and help ensure that the policy you’re working on turns into good law.
