First parliamentary counsel tells CSW how she helps ministers "get to the bottom of what they want to change"
William Gladstone is remembered as a colossus of the Victorian age, known for his modernising zeal that took in everything from reforming land law in Ireland to introducing secret ballots and commissioning the Northcote-Trevelyan report, which would become the foundation stone of the modern civil service.
In 1869, embarking on the first of his four terms as PM (having already served four stints as chancellor of the exchequer), Gladstone created a central unit that aimed to improve the way laws were written across government. The Office of the Parliamentary Counsel was led by eminent barrister Henry Thring, who had proposed its creation after working as a parliamentary counsel for the Treasury and noticing the variable quality of legislation being produced by drafting teams in other departments.
Among the first bills Thring worked on in his new role as first parliamentary counsel was the 1870 Irish Land Act, which strengthened protections for renters and disestablished the Irish Church.
Years later, Thring described how Gladstone communicated his instructions for the bill. “I used to attend him at his house, generally by myself. I never hesitated to tell him my mind,” Thring recalled. “He would then stand up, his back to the fire, and make me a little speech urging his view of the case. I then replied shortly till the point was settled.”
The image of Gladstone making speeches by his fire – perhaps rehearsing the remarks he would make in parliament as the bill passed – might seem quintessentially Victorian, but the back-and-forth discussion to test arguments and clarify legal points remains a key part of how Thring’s successors work today.
Whereas back then, the Office of Parliamentary Counsel comprised two drafters, three shorthand writers, an office keeper and an “office boy”, today, it is around 50-strong.
It is led by Jessica de Mounteney who, like Thring, began her career as a barrister. Also like Thring, she sees the drafters’ role as more than simply churning out the right legal language.
“I suspect that for people who’ve been in the civil service a long time, they may well have an image of OPC as quite an academic and dry place to be,” she says. “And there’s an idea among the wider public that what we do as drafters is just take a policy and turn it into legal language. Neither of those is quite right: we have a much more active role to play in helping ministers really get to the bottom of what it is they want to change.”
De Mounteney joined OPC in 1997, at which point fireside debates had been replaced with a more formal interaction between drafters and politicians or policymakers. In the pre-email era, written instructions would arrive at the OPC’s building in 36 Whitehall where the team was – in de Mounteney’s words – somewhat “distant” from the rest of government. Drafters set about creating bills, with comments and revisions returning from departments again in largely written form.
She joined this team more by chance than design, having discovered after a few years at the Bar that working as a criminal barrister was not for her, but with little idea of what might suit her better. She spotted a job advert to join the OPC and, with a twin love of political science and linguistics (she studied politics and French at Bristol for her first degree), felt the job could have been made for her.
That she has stayed in the team for nearly three decades – punctuated by secondments to the Law Commission and the Government Legal Department – demonstrates two things. Firstly, that her hunch about the role was right, but also that legal drafting is a skill that takes years to hone. Indeed, parliamentary counsel tend to stay in the office for their entire careers. This, de Mounteney reflects, adds to their ability to help crystalise policymaking as they “become the repository for quite a lot of knowledge and corporate history” across government, “which means that we’re pretty strongly placed to play that central role in bringing people together”.
“I quite often say that if something is very difficult to draft, it means the policy doesn’t make sense”
Over the course of her career, are there any bills which de Mounteney is particularly proud of having worked on? She points to two quite different feats.
The first was the “technical marathon” of consolidating nearly three decades of legislation about the NHS into the National Health Service Act 2006 and the National Health Service (Wales) Act 2006. This not only brought together all NHS legislation from 1977 onwards into two coherent single acts but was also the first time that England and Wales legislation was fully divided in a consolidation. “That work felt, to me, like writing a play or writing a book,” de Mounteney says of the three years spent on secondment to the Law Commission, where she worked on the bill. “I had all this material and I had the most incredible freedom – as long as I didn’t change the law – to restructure it.
“You almost never have that kind of freedom when you’re drafting programme bills because you’re working in an existing legislative landscape.”
Devolution, she says, has transformed the drafter’s landscape. “Now we’re in a world where on every bill, one’s having to consider what’s devolved, what’s reserved... It’s actually quite difficult in the first place to find the answer to that. And then, once you have found the answer, there’s a question about whether the devolved governments may want to do the same as the UK government, or something similar but different. There’s a real challenge of knitting the statute book together.”
That complexity demands coordination. “I meet every six months with the heads of the three other UK drafting offices,” she says. “We rotate around London, Edinburgh, Cardiff and Belfast, and we keep in pretty close contact.” Though working for different administrations means there may be restraints on some elements of their discussion, she notes: “There is a relationship of trust there, which is really important.”
This relationship came in useful during the drafting of the other bill she cites as one of her proudest achievements: the Coronavirus Act 2020.
Unlike the NHS consolidation work – which she wrote entirely on her own – her role in this bill was leading a much bigger team and she did little of the drafting herself.
“My role included liaising with the Scots and the Welsh and Northern Irish and working out who could do which bits. It felt like something where the civil service was at its best.”
“We did an enormous amount in a really, really short period of time,” she says. “Not only did it feel very important and hugely relevant, I think the teamwork that we had on that bill was really quite staggering… we produced it in the space of weeks and at one point, almost half of the office here were working on it.”
These two examples illustrate the spectrum of ways in which bills are created – from the smooth and linear model to a more iterative one.
"Very quickly on starting this job, I recognised that the bill was not ‘my’ bill – it was much bigger than me"
“Each bill is different,” she says, “but the paradigm case is that you get a perfectly formed set of instructions [from the department]. You do your drafting, you send it back and they give you a few comments, and then you do another draft, and it’s all done.”
This kind of bill is generally one that is not time pressured and may be more about reforming or improving law rather than achieving a political aim. She offers land law reform as an example of a bill where “you might get much more fully formed instructions” because it will often have been developed over many years, perhaps by the Law Commission.
“From that ‘perfect’ scenario, there’s a whole spectrum down to where you will literally get an idea on the back of a proverbial cigarette packet, from which you work very collaboratively with lawyers and departments’ policy people.”
A recent example of this kind of bill was the Steel Industry (Special Measures) Act, which passed in April.
“That really was a very strong team effort,” she says. “We went from a place where it wasn’t clear at all what was needed, but it was clear that something was going to be needed very quickly, to introducing the bill in a very, very short space of time.”
Most bills probably fall somewhere between these extremes. The OPC is officially instructed not by departments but by the Government Legal Department, whose lawyers will liaise with drafters to turn departmental policy into bills. De Mounteney’s secondment at the GLD gave her useful insight into the pressure its teams face. “I think there was a time when we at OPC took a sort of rigidly purist view of everything, and that sometimes put the GLD as our legal clients in quite a difficult position,” she says. “It’s a never-ending conundrum… how far do you go down the route of drafting in a way that is politically helpful, whilst maintaining legal integrity and clarity?”
Whatever the process, there’s a consistent value that parliamentary counsel bring. Just as in Thring’s day, the core of this value is the ability to help clarify and articulate what it is a minister really wants to achieve.
“The purpose of legislation is to change the law,” de Mounteney explains, “and we will sometimes be in a position where we will have to explain why what’s been asked for isn’t actually a change, because either it doesn’t completely finish the story or it doesn’t quite understand where the law currently is. So we help people articulate what changes they want to make.”
She is clear, of course, that drafters do not make policy decisions, though they can help to unearth and clarify such decisions because “it’s interesting how often there is quite an indistinct line between a drafting problem and a policy decision… I quite often say that if something is very difficult to draft, it means that the policy doesn’t make sense.”
Once the required legal change is clarified, she says, a good bill will do “everything, but no more, to achieve moving from where you are to where you want to be”.
“It’s almost inevitable that you do occasionally get into situations where, in order to make sure that different interests are met, there will be some stuff in bills which, arguably, you could have done without,” she says. But she adds that this is just part of the process of “actually getting a bill through parliament”.
“At the moment, large language models can’t do the analysis required to interrogate policy proposals"
De Mounteney’s predecessor as first parliamentary counsel – Elizabeth Gardiner – once described the way bills can shape-shift as they move through parliament as being like crafting an elephant but then being told that legislators actually wanted a crocodile. At the end, Gardiner concluded, “you have got bits of the elephant chopped off and some bits stuck on… maybe it is a functioning crocodile but not as nice a crocodile as you would have created”.
De Mounteney smiles in recognition at this quote, and CSW wonders whether drafters feel a sense of frustration as the bills they have crafted leave their desks and shape-shift in parliament. If so, how do they manage that frustration?
“I suspect that every single person you ask that question in here would have a different answer,” de Mounteney answers. “For me, very quickly on starting this job, I recognised that the bill was not ‘my’ bill – it was much bigger than me. It’s really important to me that bills, as introduced, are as clear and effective as they can possibly be – that they are as perfect as it’s possible to make them as they leave our care. But I’ve also always been pragmatic about the fact that this is part of a political process, so various compromises may end up being made.
“The only time I get frustrated is when I’ve produced something beautiful,” she adds. “I remember being very frustrated in relation to the NHS acts because I produced around 500 pages and it was all absolutely perfect. Then, within about a year or two, various things happened, policy changed and I thought: ‘Oh no, but I didn’t want a section 52a between sections 52 and 53!’”
Although the NHS consolidation acts have a particular place in her heart, de Mounteney says one of the joys of the job is that – even without the chance to debate wording around the fire with a prime minister – drafting programme bills offers a way to really get to the heart of helping governments achieve their aims. “Pretty much everything I’ve done I’ve ended up being proud of, which is actually one of the things that’s great about this job,” she says. “Whatever subject matter you’re drafting on, if you do it well and get to the bottom of the policy, then it’s a very creative job.”
Crossing that bridge
As well as holding the role of first parliamentary counsel, de Mounteney is also permanent secretary of the Government in Parliament Group – which includes, as well as the OPC, some 60 civil servants who provide support for the Leaders and Whips Offices in the Commons and Lords.
The Government in Parliament Group is “very much the bridge between government and parliament”, de Mounteney says, before explaining that the group also works closely with the Parliamentary Business and Legislation Secretariat team in the Cabinet Office to agree and schedule bills and agree things like “which House they should be introduced in”.
De Mounteney herself also works closely with the Government Legal Department – which has oversight of legal teams across most departments – to ensure that resources are properly allocated to help bills make it through parliament. Her experience – and that in the wider OPC – means she knows which bills are likely to be complex and to take more time and legal capacity from departments. “I will quite often go direct to colleagues in the GLD and say: ‘These are things that are on the horizon. Do you think you’ve got the right people in the right places to deliver this bill?’”
Alongside these roles, de Mounteney serves as the civil service’s parliamentary champion, promoting understanding of parliamentary process among officials. “Keeping parliamentary capability and awareness up in the civil service is really important,” she says. And it’s an ongoing process. “Because of the turnaround, particularly in ministerial private offices, it’s a rolling programme to make sure that people are aware of the basics, but also know where to go to get more information.”
She’s also keen to help policy professionals understand what it takes to get from idea to statute. “It’s about making sure they understand what’s involved in developing legislative proposals – not just about the parliamentary process of how you get a bill through the Houses, but about what’s involved in crafting a policy proposal in order to get a robust legislative vehicle.”
Legal AI
Earlier this year, the Incubator for AI – part of the Department for Science, Innovation and Technology – began to roll out a product named Humphrey, containing a range of AI-powered tools tailored specifically to the work of civil servants. Among them is Lex, described by the department as helping “officials research the law by providing analysis and summarisation of relevant laws for specific, complex issues”.
It includes a tool that generates explanatory notes on legislation swiftly, and a powerful search function that could help drafters or policymakers to uncover relevant legislative materials more easily – though a page of online notes about the tool includes a disclaimer that “legal knowledge and expertise is likely to be needed” to understand what the search results actually show. The i.AI team has even used Lex – which is not yet being widely used across government – to create an experimental ‘map’ of UK legislation.
De Mounteney, like many officials, is very positive about the ways in which tools like Lex could improve the processes of their daily work, but there is currently a limit to how far AI can help. “I’ve been in touch with a lot of my peers across the Commonwealth, and we are all coming up against the same thing,” she says. “At the moment, large language models can’t do the analysis required to interrogate policy proposals, so using them to draft for complex ideas is currently beyond their reach.”
She also notes a concern that is common to most professions: the impact of automating key processes on skills. “Many of [a drafter’s] skills are developed over the course of many years of judgement… If you automate a lot of that junior work, you have to think about how you’re going to replace that skill set and that ability to learn,” she says.
“There’s probably about 10 of us here who will be retiring in the next seven to nine years - that is an enormous degree of experience and expertise that’s going to go out the door.” In this context, the potential of AI to streamline how drafters work will be important, but so too will be finding the right training models that will ensure the OPC retains its core analytical and drafting capabilities.