By Suzannah.Brecknell

08 Feb 2012

After 37 years on Whitehall Stephen Laws, the government’s top drafter of legislation, is retiring. Suzannah Brecknell grabs him on his way out of the door to discuss a life spent writing laws for seven prime ministers

Stephen Laws, until last month the first parliamentary counsel, has dedicated his career to writing laws. There’s an obvious question to ask here: has he been a victim of ‘nominative determinism’ – the way in which some people’s life choices appear to be shaped by their names? No, he replies; his choice of career was more influenced by his father’s own interest in the law, and his desire for Stephen to go to university and get a professional qualification. He concedes, though, that “hereditary nominative determinism” may have been at work.

To be fair, though, it would be hard to describe Laws as a victim of anything: his career has largely been “tremendous fun”, he says, and his advice to would-be civil service leaders is to “decide what you want to do, and do it”. These are hardly the words of a believer in determinism.

Laws’ confidence in a person’s ability to determine their own future may also stem from his experience in the Office of the Parliamentary Counsel (OPC), where he and his team are constantly aware of how their own work affects their future endeavours. “There have been massive changes in the legal background against which we work,” says Laws; many of these changes are due to “all of the things I and my colleagues have done to the law”. Parliamentary counsels, he says, must always be open to innovation – “By definition, everything we do is new” – yet his office must also ensure that the basic tenets of British law are preserved, providing an underlying structure that can continue to support a steadily evolving set of UK and European laws.

Laws himself seems to be the personification of this mix of change and continuity. Measured in his speech and lawyerly in his phrasing, he sits in an archetypal mandarin’s office with wood panelling, a huge polished table for delicate negotiations, and a view over Horse Guards Parade. He promotes the civil service values of integrity and collegiate working, and has clearly been fulfilled by the intellectual thrill of helping successive governments to achieve their aims.

Yet he is not simply a wonk concerned only with legal and policy questions, nor a traditionalist or ‘golden ager’. He tends not to agree with people who say that things used to be better in the past; believes that new technology should change not only working practices, but also the products and services which civil servants create; is as proud of the organisational reforms he has overseen as the legislation he has drafted over the years; and is pleased that the status of implementation and management skills is rising relative to the art of policymaking in today’s civil service.

Just another implementation tool
Laws also welcomes the stronger linking together of policymaking and implementation – perhaps because his work provides an important interface between the two. His team – which is part of the Cabinet Office, and will soon move to the Treasury’s building at the bottom of Whitehall – sits right at the policy centre of government, but is more concerned with enacting policy than with developing it.

The OPC receives instructions to draft legislation from departmental legal teams after the relevant policy team has hammered out its plans, and a team of lawyers then works iteratively with the department – and often with people involved in service delivery – to understand the particular objectives of the policy and how the solutions should work on the ground.
Legislation is, of course, just one technique for achieving policy aims; and it’s one which civil servants are increasingly being encouraged to avoid. Keen to reduce regulation and support innovation in delivery mechanisms, ministers and top officials are instead encouraging departments to use ‘nudge’ behavioural economics techniques and other non-legislative levers to realise desired outcomes. If there is to be less legislation, acknowledges Laws, his team will have less work – but he doesn’t seem too worried about workloads dropping in the immediate future.

Even if policymakers want to avoid the use of traditional legislative or economic sanctions, “you nevertheless need to look at the system to see whether it allows you to do what you want to do,” Laws says, adding that “an awful lot of legislation is not about saying: ‘You can’t do this, and if you do you go to prison’. A lot of legislation is about giving government the power to operate in the way it wants to operate.”

Does he think governments have legislated too much in the past? He laughs and says yes – though the problem hasn’t been that governments have “done a lot that was unnecessary”. Rather, they may have tried “for laudable reasons” to do too much at once: “There have been times, certainly in particular areas of the law, when the volume of legislation has been such that the people it affects haven’t been able to keep up with the change, and that has made the change ineffective.” This, he suggests, may be because “there’s always a temptation to think: ‘If there’s no other solution to a problem, maybe we can legislate’.”

Choosing the right solution
It is part of the parliamentary counsel’s role to advise departments whether legislation is the best way to achieve their objectives, he says, but by the time the OPC is called in that decision has frequently been made. Very often, Laws comments, the parliamentary counsel can advise on how to bring forward a legislative solution that involves the minimum amount of legal work, but “we don’t have the opportunity to say: ‘Have you thought of trying something entirely different?’.”

Would it be helpful to have the opportunity to step in earlier? Laws doesn’t think that “there’s a yes or no answer to that. I think sometimes we can be more useful on that sort of question when the problem is essentially a legal problem; when it’s a practical problem, then probably we’re not the best people to ask for the practical solution.”
There’s another way in which the coalition government wants to alter its use of legislation: many of its policies rely on devolving decision-making powers down to the local level, rather than introducing targets and top-down organisational reforms. This requires a different type of legislation – laws which give away power or provide frameworks for local action, rather than controlling and restricting activities – and this in turn demands a different approach from both Laws’ team, and the policymakers it supports. “You have to come at it with a different frame of mind,” he says.
Legislation is “largely about creating processes”, Laws comments – it can’t define the results which will flow from that process. Nevertheless, in the past officials have often created processes with particular outcomes in mind; the challenge now, says Laws, is to design processes that allow local service providers or citizens to realise their own ambitions. Policy teams “are now saying: ‘We don’t want to prejudice the results; we want these processes to be impartial.’ So we have to adopt a different approach,” says Laws.

Too much too young
Despite its rhetoric about reducing regulation, the coalition has in fact come under fire for the speed at which it has been creating new laws. Speaking to CSW last year, Whitehall expert Lord Peter Hennessey said he thought that too much major legislation was being enacted and “much of it comes here, to the House of Lords, from the House of Commons in a semi-finished state”. While saying that he had “great sympathy for the parliamentary draftsmen; they’re people of immense skill and they do the best they can in the circumstances,” he lamented that “the quality of legislation ain’t what it used to be”.

How does Laws respond to these comments? “I don’t find it easy to agree with people who say that things were better in the past,” he replies, noting that when he first joined the OPC on 1 April 1976 he was tasked with working on a major government bill “to be introduced after the Whitsun recess [at the end of that month]; that was not the leisurely, considered method of producing legislation that people sometimes think the past involved.” So there has always been a tension in the legislative process. While “the drafter will ask for as much time as possible to do something”, the minister is “operating on a shorter timescale: they want to get their legislation through; they want to get it implemented; and they want to begin to see the effects – and they want to do all that within five years.”

It wasn’t only in the Upper House that the government’s bills floundered last year: there were U-turns, ‘listening pauses’, and wrangles over amendments in the Commons, too. Laws agrees that there are lessons to be learnt from all of this; but rather than pick out common themes, he suggests that each problem had a different cause. “The fact that a bill has been heavily amended as it passes through the House [of Commons] is not necessarily a bad sign. It might be a sign that democracy is working,” he says. A bill passing the Commons without amendment, on the other hand, can be seen as evidence of a pushy executive branch: it’s a Catch-22 situation which, he says, “doesn’t give you a way to proceed that avoids criticism, and as usual the true answer lies somewhere in between: sometimes amendments are [made] because you’ve done things too quickly, and sometimes it’s because you’ve rightly listened to what people have said once you’ve exposed it to their opinion.”

Hennessey also suggested that the Commons should be doing a better job of scrutinising bills before they arrive in the Lords. What does Laws think of the different roles of the two houses in the legislative process? The form of scrutiny in the Commons has certainly changed, he replies. In the ‘70s, “when there was less legislation and more lawyers in the house of Commons, [scrutiny] was much more on the technical side.” In recent times, though, Parliament has “given much more attention to the broader policy aspects of a bill, and rather taken the technical detail on trust”. This may now be changing, he adds: after many years of large government majorities, the arrival of a coalition and its attendant fractured parliamentary loyalties means that “it’s possible that we may return to a situation where careful scrutiny of detail in both houses is more common.” Either approach, Laws believes, is equally legitimate: “The Commons is the democratic part of our government, and it will exercise its role of scrutiny in the way that satisfies the people that elect it.”

Big changes
Asked to name the biggest changes in the civil service since he joined it, Laws mentions the increased presence of women in professional roles. This has changed the culture, he says: “People behave better towards each other as a result of the civilising effect of women, on the whole, and there’s less eccentricity.” He also cites the rapid technological changes, joking that “when I joined the office, new technology was a propelling pencil and a plastic rubber.”
The fact that legislation is now largely produced and accessed using computers, he believes, must change not just the way in which drafters work, but also the presentation and formatting of laws. “I feel very strongly that the physical way you produce something and the way people access it has, and ought to have, a fundamental influence on how you go about the job,” he says. Legislation must be prepared in formats that enable computer users to easily read and move around them; these, says Laws, are quite different from the formats best accessed on the printed page.

Another big change has been the increased focus on management and implementation skills. “The civil service I joined didn’t, certainly in the policy centre, take management of individuals and of organisations as seriously as it is taken now,” Laws comments. “People tended to rise to the top by being good at writing essays and policy papers.” He is pleased, he says, that there is now “a more unified civil service in which the people who are involved in implementation and the people involved in policy formulation exchange jobs”.

Team players
In Laws’ own career, the management of people seems to have given him as much satisfaction as his lawmaking work. In 2008, he told the newspaper for Bristol University alumni that “being the leader of the collection of highly talented and professional people who make up the OPC” has been one of the proudest achievements of his career.

Now, Laws tells CSW that his vision when he became first parliamentary counsel was to encourage the team – which had gone through a period of under-resourcing and overwork, and become used to “looking down” and getting on with the job – to “look up, out and around” more. ‘Looking up’ involved considering strategy; ‘looking out’ meant ensuring that the OPC was meeting the needs of its customers in other departments; and ‘looking around’ required individuals to consider their relationships within the team, focusing on sharing learning and working closely together even as the team grew in size.

While the team has now reduced in numbers again – partly, says Laws, to save money, and partly to re-balance; it had become top-heavy with senior lawyers – the challenges of looking up, out and around are, he believes, ever-present. This is particularly true of an organisation such as OPC, which bases its work around individual bill projects and the parliamentary year, meaning that it can be hard to take a strategic view. It’s difficult to overstate the importance of looking up, out and around, Laws believes; legal drafters can be tempted to think that one should only say something once, he adds, but in this case repetition of key messages is a positive thing.

That Laws cites leading a team as one of his proudest achievements is a sign of his attachment to the traditional collegiate values of the civil service. He has been chair of the Civil Service Benevolent Fund since 2009, and the ethos of mutual support clearly resonates with him: “It’s an important part of what being a civil servant is: that there is an institution that is able to look after the welfare of people that have dedicated themselves to public service.” Similarly, when Laws looks back over his career, he tends to focus mainly on the most collaborative parts of his work. “One of the good things about being in the civil service is that when you look back over your achievements, you realise that it’s quite difficult to identify any as entirely your own,” he says. “Almost everything I’ve done, I’ve done as part of a bill team or as part of a leadership team. They have all been ‘our achievements’ – and I’m pleased with that.”

Legal highs and lows
In the past, Laws has said the toughest piece of legislation he ever worked on was the 2005 Terrorism Act, when he recorded amendments and revisions through the night as MPs and Lords batted the act between houses.

From a technical point of view, Laws says tax legislation was always particularly complex. He points to the 1997 windfall tax law as a prominent example. It was based on the assumption that the privatised industries had been undervalued, and that some of that lost benefit to the government needed to be retrieved via tax. “All the industries had been privatised in a different way,” he explains, “and it was in any event quite a difficult idea to identify what the undervalue was, and then to find it within the structure of the different privatised industries – so that was a very complex exercise.”

Although all of Laws’ career has, he says, been “tremendous fun”, he particularly enjoyed working on the 1984 Telecommunications Act. This “was really the first act that worked out how to regulate a privatised monopoly, and so the whole concept behind what we were doing was new,” he recalls.

His team had to consider how regulations would need to change, given that the industries’ traditional public sector values would steadily be replaced with commercial objectives. The approach, he thinks, is “certainly relevant” for teams working on mutualisation and other types of service delivery reform at the moment – “but I think probably the thinking has to be done again, in relation to the new context.”

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