Part I: The Process of Developing Legislation
Has all appropriate consultation been carried out?
Consultation within government
Consultation in the wider community
Are the appropriate rules, procedures and guidelines within the government system being followed?
10. There are many ways in which a proposal for legislative change may emerge. They range from proposals of long standing that are included in a political party's manifesto before it wins the government benches to proposals that are introduced in response to some form of emergency.
11. The way these proposals are handled will inevitably vary. In particular the nature, extent and timing of consultation may differ from case to case. What follows, is a set of questions which should be answered in respect of any proposal and which should help to ensure it is developed appropriately.
12. It is highly desirable to involve lawyers in the development of a legislative proposal from the beginning rather than wait until the policy has been defined clearly and in detail. It is not the primary function of lawyers to contribute to the formation of policy but they can frequently play a useful role in that process. They can do so more effectively if they are privy to policy-making discussions when legislative proposals are first contemplated.
13. Lawyers can in the first place advise whether the carrying out of a policy requires legislation and if so what particular approach might be employed. Too often it is incorrectly assumed that new legislation is the only possible answer to a problem. In many situations the common law (including the prerogative) or existing legislation may be adequate. Lawyers can also advise whether a policy option being considered will later founder on a rock of fundamental legal principle, and how the policy can be achieved consistently with legal principle.
14. In addition-and this is a point of some importance-lawyers can often analyse and hence help to clarify the real issues in any debate over policy. They can also help to avoid the all-too-common situation where a compromise is struck on language or on procedure which cannot be given effect in law or which makes it difficult to achieve efficient or effective law.
15. This kind of input at an early stage in policy formation can, at a minimum, avoid significant inefficiencies of time and effort. It may eliminate defects which may otherwise be revealed later in the legislative process and prove to be more difficult to correct at that stage. In many cases it is also a prerequisite to the next matter discussed-effective consultation. Unless issues have been properly clarified, consultation about them is unlikely to be productive.
Has all appropriate consultation been carried out?
16. The point has already been made that the broad acceptability of a legislative measure can be influenced significantly by the consultation that is undertaken. This relates particularly to consultation with sections of the community most likely to be affected, with special interest groups and with professional organisations, trade bodies and so on. Such consultation can also materially enhance public compliance with new law. There is, however, another kind of consultation that has to do more with the efficiency and effectiveness of the legislation. This is consultation within government, that is within the initiating department and between that department and other departments.
Consultation within government
17. The need for consultation within the initiating department relates back in part to the point about involving lawyers at an early stage in policy formation. Beyond that, however, the lateral thinking necessary to ensure that all appropriate perspectives have been brought to bear on a legislative proposal can usefully begin with consultation with other relevant divisions or directorates within the initiating department.
18. Consultation with other departments is the next step and a very important part of the overall process. It is an efficient use of time and resources. It ensures that possible problems are identified early in the development of a proposal and it can help to produce a positive and constructive approach towards the proposal on the part of those consulted. This can be important in the search for solutions to any problems that subsequently emerge. Conversely a failure to consult appropriately with other relevant departments can lead to substantial loss of time and a lot of unnecessary work in resolving problems and disagreements that could have been readily avoided at an early stage before the initiating department became wedded to a particular approach.
19. Another advantage of early consultation with other departments is that it can help in identifying the groups and organisations outside the government that should be consulted about the proposal.
20. It is not possible to establish criteria or checklists for deciding which departments should be consulted on which issues. The list of relevant departments must be determined in each case according to the subject matter of the proposal. In many cases the list of the principally interested departments should be fairly obvious. Thus the Department of Justice has broad responsibility in respect of such matters as criminal law, fair procedures and constitutional and human rights matters. The role of the Department of Maori Affairs is perhaps now better recognised (and see further paras 38-40 below). Departments whose possible interest in a particular proposal may be less obvious include Women's Affairs, Pacific Island Affairs, Environment, Conservation, Consumer Affairs, State Services Commission (machinery of government and staffing implications), Treasury (economic policy and financial implications), and Foreign Affairs (compatibility with international legal obligations and foreign policy implications).
Consultation in the wider community
21. In many cases the groups, organisations and sections of the community outside government that need to be consulted will be as obvious as the principally interested departments. They may range from very small bodies to larger bodies such as professional organisations, to major pressure groups like the Federation of Labour, Manufacturers Federation, Federated Farmers or the Combined State Unions, to major sections of the community and in particular the Maori people as the tangata whenua. The reasons for the consultation will vary. In some cases the group or organisation will have knowledge and experience about the issues without the input of which it will not be possible to develop the proposal adequately. In other cases early understanding and support for the proposal by the organisation concerned will be essential to its political acceptability.
22. All Bills, except money Bills, are now referred to Select Committees and public submissions can be made at that stage. (Indeed some money Bills are now considered by Select Committees as well.) This ensures that all groups now have at least that opportunity for registering their views on a proposed piece of legislation. But while this opportunity alone may well represent sufficient consultation with some groups on some proposals, it will be essential in many cases that the consultation is begun much earlier. Moreover the volume and pace of legislation can make it difficult for some groups to prepare written submissions to Select Committees on all the Bills in respect of which they may have a contribution to make. And some groups may not be familiar or comfortable with the use of written submissions as a means of consultation.
23. Again it is not possible to lay down absolute rules about when and in what manner the various groups and organisations should be consulted. But some guidance can be given. The first point about consultation is that it must be genuine: those engaged in the process must give those consulted a fair opportunity to present relevant information and opinion, and must listen to and consider any responses. As already noted some proposals will not be able to be adequately developed without the early input of a particular group or organisation. In other cases the discussion of a proposal with a group or groups at a very early stage and in quite general terms may be a necessary part of developing the political support without which the proposal will be doomed to failure.
24. The essential point in all this is that it is necessary at the earliest stage to address the questions of with whom, when and in what manner consultation should be undertaken in the consideration of an idea for a legislative proposal. It is also worth noting that although it is commonly thought that extensive consultation may make the development of a legislative proposal more difficult and time consuming, experience suggests that the reverse is more often the case.
Are the appropriate rules, procedures and guidelines within the government system being followed?
25. All who are involved in the preparation of the legislation must familiarise themselves with the rules, procedures and guidelines that have been laid down in respect of this process. In particular they should take account of the matters dealt with in the Cabinet Office Manual and of the guidelines and requirements of the Parliamentary Counsel Office about the preparation of instructions for the drafting of legislation. The latter are set out in Appendix A which consists of extracts from a paper by Chief Parliamentary Counsel.