Law of the land: interview with first parliamentary counsel Elizabeth Gardiner

Written by Suzannah Brecknell on 13 September 2018 in Interview
Interview

Elizabeth Gardiner, the first parliamentary counsel, leads the team that writes the UK’s legislation. She tells Suzannah Brecknell what makes a good bill, how departments can help, and what Brexit will mean for those who craft the law of the land

Photography by Louise Haywood-Schiefer

Stakhanovite, monastic, a rare breed: these are all phrases used to describe the women and men who draft laws for the government. But these are not phrases which spring to mind in the office of Elizabeth Gardiner, the first parliamentary counsel and head of that team of 50 or so counsel – plus 10 support staff – who are responsible for turning government policy into legislation.

Gardiner and her team are certainly hardworking, but the space doesn’t bring to mind grim Soviet mines of the Stakhanovites, nor sparse monastic lodgings, or indeed a reclusive breed. On the door, alongside a brass plaque announcing her title, are limericks written by counsel as part of a recent team social event (CSW’s surreptitious glance confirms that one rhymes “clause” with “obvious flaws” so the event clearly still had a work-slant). On the walls is a mix of modern art and Scottish landscapes from the Government Art Collection, and it’s hard to view this team as a set-apart group when they are sharing a building with numerous other teams in 1 Horse Guards Road.

Those descriptions do hold some truth though: parliamentary counsel are a rare breed in the civil service thanks to their deep technical skills and long job tenure, they are impressively productive, working under huge pressure to tight deadlines as they help to steer bill after bill through parliament; and they sometimes do take a monastic approach wrapping cold towels round their heads, as Gardiner puts it, to sit quietly and grapple with turning complex policy into effective legislation. But the team, like all others across the civil service, is shifting its culture and working practices to meet changing needs of government and society.


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It was Robin Cook, when leader of the House of Commons, who described parliamentary counsel as Stakhanovites. In the mid-nineties the office had become “under-resourced”, says Gardiner, who joined in 1991. In 1995 there were just 25 parliamentary counsel. This number grew slowly in the latter half of the decade, but it was an intervention from Cook which led to greater expansion in the early part of the 2000s. Cook identified under-staffing in the Office of the Parliamentary Counsel as a major cause of legislative bottlenecks in the House. “It is the brute fact that there are fewer than 50 parliamentary draftsmen working for the government,” he wrote in a 2002 diary entry. “They each have a positively Stakhanovite commitment to their job and in the past session we got one bill published in time only by its draftsmen sitting up through night putting the finishing touches to it.”

Thanks to Cook’s support for extra funding and staff, the office grew to 62 by 2004, though it shrank again during the coalition years. Now, it is back up again to around 50 and Gardiner hopes this will be a “steady state” size. Within the office there are four teams, each of which are allocated a group of departments to work with. There is  flexibility to work across teams if a department has a particularly busy agenda, but this model (a relatively recent introduction) means each department has “a first port of call, a familiar person that they are used to dealing with and who’s used to dealing with them and who understands their sort of wider programme,” explains Gardiner.

The way drafters work with departments follows broadly the same structure as when Gardiner joined: departments come to OPC when they have developed policy which needs some form of legislative change; drafters create a bill; departments provide feedback and changes are made; and then the drafters help departmental bill teams to steer this through parliament.

But the culture and model of engagement has changed. “There was an element of deference towards parliamentary counsel of old, which wasn’t necessarily a healthy thing,” Gardiner says. “Now, we still are held in very high regard by our clients [in departments] but it’s not a deferential thing, and we all work together. I think that’s a really positive change.”

The work with departments has also become less linear, Gardiner says, more iterative and based on discussions as well as formal instructions. “When I joined the office you would sit and wait for written instructions to land on your desk and that might be the first that you really encountered the thing,” she says. “Now we’ll tend to be engaged at a much earlier stage – we encourage departments to get in touch as early as they like, if they think we can add value.”

“An awful lot is done not in writing now, so there will be a lot of meetings to discuss policy and to thrash out issues,” she says. “Having said that there’s still a place for writing: requiring somebody to express their thoughts on paper often throws up thoughts that don’t really add up, so that’s often quite a useful exercise.”

The government has a definition of Good Law – necessary, clear, coherent, effective and accessible – but what goes into making a good bill? Gardiner suggests the first job of a drafter may be to balance the elements of Good Law. An act might need to be a bit more complicated so that it is “absolutely clear as day, and does the job” rather than a simpler bill which might be a bit “fudgier”.

“One of the skills that the drafters have is understanding where you make those compromises to make sure that the thing satisfies all those requirements as much as possible,” she says. Good instructions from the department and colleagues who understand what makes good legislation helps – so too does having “some settled policy”.

“If the policy is forever evolving, that makes it difficult for the drafter because they’re always trying to draft to a moving target,” she says. Speaking to the BBC earlier this year, Gardiner gave an illustration: “One of my colleagues used to describe it as: ‘You have crafted an elephant and think it is a pretty good elephant and you are half way through parliament and they decide they want a crocodile’,” she said. “You have got bits of the elephant chopped off and some bits stuck on. At the end of the day, maybe it is a functioning crocodile but not as nice a crocodile as you would have created.”

“Having said that,” she tells CSW, “I doubt that you’ll find a single bill where the policy is absolutely tied down, and one of the things the drafting process does is unearth the issues that haven’t really been completely bottomed out in the department.” When it comes to changes made as bills pass through parliament, Gardiner says these will ideally be “precision surgery” rather than a complete re-working of a bill’s structure.

“Then, I think probably everybody here would say that the most useful thing is time – the there’s no substitute for time,” she says. “It’s not a case of just putting more resource onto a project because actually what is important is that the people who really understand the project have a little bit of time to really get to grips with the difficult problems and think them through. It’s often described as a monastic kind of job: lots of it is sitting and thinking hard about things.”

Legal Innovations

As an example of legal innovation, Gardiner points to a tax rewrite project of the late 1990s. “That team used various new techniques, many of which have translated into [other acts]. Things like signposting – having an overview at the beginning of an act, explaining how the structure of the act is set out. The actual overview has no legal effect; it’s really just a map to the rest of the act,” she says.

“They also introduced the concept of ‘steps’ in tax legislation. So rather than having a narrative for a calculation [of a given tax], they take you through the steps that you need to produce the calculation. There are all sorts of other techniques you can use to help the reader: shorter sentences and breaking things up more rather than having big chunks of text.

“People think that legislation is difficult to read and I sometimes think I’d like them to read more of it because it’s not actually that difficult.”

In terms of future innovations, she points to a project in New Zealand looking at the possibility of machine-readable laws. “Obviously it doesn’t lend itself to law where there’s a lot of discretion, so one of the things [that is coming out of that project] is whether we need the same level of discretion in a certain policy, or whether there can be more factual tests. It’s about trying to divide out your factual tests from your discretion so that if there’s human intervention it only happens once rather than all through the process,” she says. “We’re in the foothills, maybe not even in the foothills, but that’s something that we need be aware of and keep an eye on going forward.”

Despite being happy with the current staffing of OPC, Gardiner is not complacent about making sure it remains properly resourced as the UK moves towards its most fundamental legislative shift in decades – leaving the European Union. As government has just secured the passage of the EU Withdrawal Bill with “great effort from us and the department” (and incidentally with more than some precision surgery – analysis in the Institute for Government’s 2018 Parliamentary Monitor showed the bill grew by 63% as it passed through both Houses, with 55% of its lines amended), the OPC is adjusting and planning for the impact of Brexit on UK’s legislative programme.

“One of the questions we’re beginning to ask is: now that subject areas which in the past have been legislated at European level will in the future be legislated UK level, what will that mean for the legislative programme?” she says.

One might assume the obvious answer is that the UK programme will grow, but Gardiner notes that “obviously there are some limitations in the sense of there’s only so much parliamentary time to deal with legislation”. Nevertheless she is thinking carefully about what the OPC will need to do to ensure its able to deliver whatever legislation emerges post Brexit.

It has already made some adjustments. Gardiner’s team has been drafting statutory instruments, for example, something usually done by departments and a Statutory Instruments Hub in the Government Legal Department. But Brexit is requiring huge amount of secondary legislation – a recent Institute for Government report estimated government will need to pass 800 SIs before the UK leaves the EU. “We are trying to provide as much support as we can because we appreciate that’s a big ask for [departments],” says Gardiner.

There is already a permanent, rotating secondment arrangement with the SI Hub, meaning there is always a counsel working there to provide a consultative role and ensure a consistency of approach between primary and secondary legislation.

In other instances, OPC will be pushing work back towards departments which it may previously have helped with, though this is to ensure that they are making best use of resources overall rather than being directly linked to Brexit. Gardiner sets out managing resources to support staff wellbeing as one of her key priorities as head of the OPC.

“One of the things that I’m always saying to departments is that they will have people working on a high pressure legislative project and it’s very exciting and very fast-paced and very pressurised. And then those people tend to go off and do a different job,” Gardiner says.  “Whereas the people here are just doing that over and over again. You cannot work at that pressure all the time.” So one of her priorities is ensuring that she has sufficient resources to manage people’s workloads and that the team works sensibly, “using our resource on things that matter and maybe moving work elsewhere if it’s not stuff that needs to be done by parliamentary counsel.”

An example would be explanatory notes that accompany bills – always formally the responsibility of departments, but drafters have often taken an active role in amending and correcting them. 

“The pressure was huge because neither would be ready until quite near the deadline you were trying to check two enormous documents whereas really from our point of view, [our] time is better spent on checking legislation,” says Gardiner. So now, in agreement with departments, parliamentary counsel will only check aspects of the explanatory notes where they have particular knowledge.

While all leaders must ensure their teams have sufficient capability, for Gardiner building a future pipeline of talent is particularly important because drafting is not a skill that can be readily bought in from outside, or easily acquired by existing lawyers. “We reckon it takes at least five years to get somebody up to the point where they would be running a medium- size bill,” Gardiner says, “You can’t just go and turn on a tap when you suddenly realize that you need a few drafters.”

The office is planning a recruitment round this autumn, only the second since Gardiner took up her post in 2015. This slow recruitment pace can make it harder to improve diversity, though the office already has a good gender balance with a roughly 50/50 split at all levels, and of course Gardiner herself has made history as the first woman to hold the top job. But it does mean staff are receptive to new people and ideas, and to a diversity of approaches. 

“As an office we really enjoy when we get new people in because we don’t get them in weekly,” she says. “It brings a fresh approach and people here are very keen to train other people, but they’re also keen to learn from what [new colleagues] are bringing in. I think it’s incumbent upon us to both train [new staff] but not completely assimilate them into what we currently are because we should be open to different ways of doing things.”

The focus on training is vital to OPC and they have a “sophisticated training and induction programme” which runs for several months into the job, as well as a focus on continued on-the-job learning by working with other drafters, receiving and giving comments on work.

Even the initial induction focuses on joint learning and support – alongside the formal training they are paired with a “buddy” who “is there to help them and answer the silly questions”. They’ll also have someone in their team – not always their line manager – “who’s responsible for enhancing their career, making sure that they get the right experiences”.

“It’s always a good fun and enjoyable if the people who are working on policy really understand the value of having a well-drafted law, and really comment on what you’re producing”

This role is especially important as the office moves away from old model of people joining and staying for the rest of their careers. “I think 30 years ago people would have come in and stay for their career: they thought, ‘we’re happy to be here, head down’,” Gardiner says.

Indeed, she has spent almost all of her career at the OPC, bar a few years as a commercial solicitor after qualifying, and a secondment to the Law Commission. But, she says, the world has moved on both in terms of what the office expects from people and what people expect from their careers. Regular secondments and shadowing opportunities give a way for staff to come and go, building career paths and bringing new experiences to the team. “It gives them new perspectives, which is really important because otherwise it can be quite isolating,” she says. “It is important that people look out and not just look in.”

Asked which bills have been most fun to work on, Gardiner demurs: “All bills are fun”. This seems surprising for someone who led on finance and tax bills under the coalition government, but she insists: “It’s not so much the subject matter because as a drafter you have to turn your hand to all subject matters. The most satisfying are the ones where the team really works together.”

Pushed to name one she’s proudest of, she points to the 2008 Energy Act, which introduced powers to allow for smart meters and feed in tariffs. “I really felt the team in the department were on top of things, were really excited by what they were doing and that made it exciting for me,” she says. “They were also hugely supportive of the drafting of the bill: they valued [our input].”

Drafters don’t always feel a valued part of the policy process, she suggests. “Because we’re at the end of the process, so to speak, we often get squeezed out of time because everything inevitably takes a little bit longer than people are expecting and then the time at the end for the drafting gets squeezed.

“So it’s always a good fun and enjoyable if the people who are working on policy really understand the value of having a well drafted law, engage you early and really comment on what you’re producing. We don’t want to send off drafts and be told: “They’re lovely”. We want people to really engage with them and tell us what’s wrong with them.”

If the parliamentary counsel are indeed a monastic order they certainly aren’t the silent or austere types. They’re perhaps closer to the community-minded Benedictines, or the innovative Cistercians who pioneered techniques of hydraulic engineering to power water mills and even central heating systems. Like them, the counsel combine periods of quiet contemplation with practical know-how, and are fusing tradition with innovation as they provide a service which is fundamental to government.

 

Parliament Confident

One of Gardiner’s cross-government leadership roles is to promote understanding of parliament across the civil service.

If civil servants don’t understand how parliamentary business works, “we couldn’t always give the best advice to our minister,” she says. “So sometimes we were scoring own goals because we weren’t on the front foot [and] ministers would know the advice they were getting wasn’t right because they are parliamentarians first and foremost. So it is really important that civil servants have a sound grounding in parliament”

Why this lack of understanding? Bernard Jenkin, chair of Public Administration  and Constitutional Affairs Committee, has in the past attributed it to lack of training, but Gardiner points simply to realities of government over past decades. “Over the years [when there was a] big parliamentary majority, sometimes in both houses but certainly in the Commons, the need to really understand parliament somehow ebbed away a bit and the parliamentary branches in departments maybe did not have the profile that they once had”

But Gardiner is now working to raise the profile of “fantastic work” going on in many parliamentary branches. “One of the things we’re trying to do is link them up more so that they can all learn from each other,” she adds. Each department now also has a parliamentary champion at director general level, “a very senior member staff whose responsibility is to sort of make sure that their capability is good, identify any gaps and how they’re going to plug those.”

To help plug those gaps, she says, “Civil Service Learning have really done a huge amount on this over the last couple of years. And now they have a very, very sound programme that does more than just teach you what a green paper is, what a white paper is, it’s much more interactive than that”.

“It’s much more about the kind of real feel of parliament and what matters to ministers and how you can deal well with committees and the sorts of things that they’re looking for and how you deal well with your bills. It is just a much better offering.”

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Suzannah Brecknell
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Suzannah Brecknell is the editor of Civil Service World. She tweets as @SuzannahCSW.

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