The Office of the Parliamentary Counsel: Functions, Comparisons, Criticisms 

By: Tasneem Ghazi

The Office of the Parliamentary Counsel (OPC) is a division of government lawyers who specialise in drafting legislation and assist with its passage through the legislative process. The OPC is responsible for drafting all government bills, advising departments on parliamentary rules and procedures, reviewing certain orders and regulations which amend Acts of Parliament and “assisting government on a wide range of legal and constitutional issues”. This blog considers the place of the OPC in 2024. 

Who are the OPC? 

The OPC was first established in 1869 through a Treasury Minute that appointed Lord Henry Thring a Parliamentary Counsel to the Treasury. The Office sat in the Treasury until 1969 and was thereafter absorbed into the wider civil service. The reference to “Parliament” is in fact confusing because the OPC reports directly to Government. As of 2023, there were 54 parliamentary counsel, all of whom were barristers and solicitors. While a small team works with the Law Commission on reforming and consolidating legislation, most members of the OPC work on government programme bills, or government supported private members bills. They also advise Government and Members on parliamentary procedure and provide training to lawyers from the Government Legal Department on the drafting of legislation and the legislative programme. The OPC publishes guidance for its own members and government on how legislation is drafted and in 2022, published a new more general guide outlining Common Legislative Solutions to recurring Policy Issues. This 2022 guide is supposed to be a high level description that assists ministers and civil servants in choosing what legislative device may be used to implement different policy: for example, it explains what types of criminal and civil penalties are appropriate in different policy scenarios. While the OPC is responsible for drafting bills – and by extension delegated powers – counsel do not draft delegated legislation; this is the task of other Government Legal Department lawyers either in a department itself or the “Statutory Instruments Hub”. 

Functions 

The OPC’s work often begins when the idea behind legislation is conceived. Dame Elizabeth Gardiner – who is at present First Parliamentary Counsel – explains that the OPC’s primary function is to “produce effective legislation to lay before Parliament” and assist with the “iterative process” of drafting. In theory, its work operates as a soft internal check on legislation. Despite operating behind closed doors, the OPC might encourage the Government to “think again” about the way in which policy matters are framed and the balance between primary and delegated legislation. The OPC is committed to ensuring that legislation is, as far as possible, coherent, accessible, workable, and effective. 

Making sure that legislation meets certain standards is not a formulaic task but involves in-depth engagement to ensure legislation can withstand scrutiny and accomplish its intended policy goal. In a lecture to the Statute Law Society in 2004, Sir Geoffrey Bowman, former First Parliamentary Counsel, explained that while there was a common belief that the drafter’s main function was to turn policy ideas into some kind of statutory language, this was a “misconception”.[1] Sir Geoffrey continued: 

the drafter’s main and most valuable function is to subject policy ideas to a rigorous intellectual analysis. It is no good putting on the statute book something that simply will not stand up. It has to stand up to scrutiny in Parliament and (once enacted) to scrutiny by practitioners.[2]

Terence Daintith and Alan Page describe the OPC’s essential task as giving effect to the Government’s intentions in a form that is capable of withstanding parliamentary and judicial scrutiny.[3]

Comparative context 

Similar parliamentary units exist in the Commonwealth or jurisdictions like Ireland that have inherited their constitutional culture from the UK. In Australia and Ireland, members of the counterpart OPCs are also civil servants who specialise in preparing government bills, advising on the legislative process, and training government lawyers. But there are slight differences. In Australia, the Commonwealth OPC is additionally responsible for maintaining the primary database of legislation – the Federal Register – and for publishing and registering delegated legislation. By contrast, in the UK, the task of managing legislation.gov.uk is outsourced to the National Archives. In Ireland, the Office of the Parliamentary Legal Advisors (OPLA) has a broader function than the UK OPC, in that they also work for parliamentary committees and members. The Irish OPLA provide general legal advice and support to members of the Oireachtas and committees, who might seek help regarding examining and challenging government supported policy matters in bills. 

Criticisms 

The OPC describes “good law” as necessary, effective, coherent, and accessible, and states upholding this standard is a priority. However, in practice, legislation is often voluminous, incomprehensible, difficult to access and incoherent. In 2018, the House of Lords Constitution Committee claimed that “large bodies of law” remained “remarkably inaccessible and difficult for practitioners to comprehend, let alone the average citizen.” The Committee stated that OPC members had a particular duty to ensure that legislation meets certain standards before it is even introduced into Parliament and suggested that counsel rely on support from the Leader of the House or the Attorney General more regularly if they had concerns. At the time, the Constitution Committee had particular concerns with the increasing scope and volume of delegated powers, and the increase of skeleton bills, which contain so many significant delegated powers that the real operation [of the Act] would be entirely dependent on the regulations made under it.[4]

Since then, such trends have been accelerated by Brexit and the Coronavirus pandemic, as the Government faced enormous pressure to introduce legal measures in a short space of time. By November 2021, two parliamentary committees had issued a “stark warning” calling for an immediate change in law-making. Following up on this report in 2023, one of those committees – the Delegated Powers and Regulatory Reform Committee (DPRRC) – suggested that very little progress had been made and repeated a plea for parliamentary counsel to “comply” with their principles on legislative drafting. Similar concerns have been recently voiced by the UK Constitution Monitoring Group (UKCMG) in its Fifth Report, covering 2023. The UKCMG stated that one of their repeated concerns is the lack of high standards in legislative drafting and suggested that the OPC has of late too often failed to adhere to its own standards. 

An inherently challenging role? 

Although these concerns should not be dismissed, it is difficult gauge the extent to which OPC are able to – and in fact do – push for legislation to adhere to certain standards. Unlike Australia’s OPC which publishes an annual report detailing its impact, the UK OPC does not publish data on its work. Giving evidence to the DPRRC in 2022, Dame Elizabeth suggested that many worrying legislative trends were not new, but have instead gained in publicity. The Renton Report of 1975 was critical of the form, language, and structure of bills, claiming that they often lacked “simplicity and clarity”, employed uncertain, elusive, and complex language and were overly elaborate. Dame Elizabeth suggests “things have changed a lot” since then. Now, in particular, when parliamentary counsel have serious concerns with delegated powers these may be raised directly with ministers. The task that parliamentary counsel are faced with is difficult, though. As civil servants, it is not their role to hold the Government to account for persistently seeking broad delegations or bringing poor legislation through in a short space of time. It is also challenging to ensure that legislation is user-friendly, because the subject matter is often technical and complex. 

Ultimately the OPC is faced with a balancing act. On the one hand, it must ensure that a bill “achieves what the Government wants, and as far as possible, it can be seen to meet that aim without confirmation by cases decided by the Courts.”[5] But on the other hand, there are certain legislative standards that it is committed to adhering to. These standards are inherent to the rule of law, almost regardless of how it is conceived. When analysing the OPC, we should recognise that the perception of their work is also important. One way that the OPC might try to better exert its influence and improve perception of its work is by publishing information on its influence of government bills. These could take a similar, but more skeletal form to the annual reports published by the Australian OPC. Such a move could shield the OPC from parliamentary committee criticisms that it is too deferential, and at the same time, such reports might nudge governments to better adhere to standards when introducing bills in the first place. 

Tasneem Ghazi.

Tasneem is a PhD student at the UCL Faculty of Laws. Tasneem previously completed the Barrister Training Course while working part-time as a research assistant at the Constitution Unit. In 2021, she interned at the Institute for Government and at the UK in a Changing Europe. Tasneem holds an MA in History from King’s College London, and an LLB in Politics, Philosophy and Law. 

The Constitution Society is committed to the promotion of informed debate and is politically impartial. Any views expressed in this article are the personal views of the author and not those of The Constitution Society.


[1] Geoffrey Bowman, ‘Why is there a Parliamentary Counsel Office?’ (2006) Statute Law Review 26 (2) 70

[2] ibid 

[3] Terence Daintith and Alan Page, The Executive in the Constitution  (Oxford University Press 1999) 250 

[4] Delegated Powers and Regulatory Reform Committee, 1st Report, Session 1992–93 (HL Paper 57) [15]

[5]The Preparation of Legislation: Report of a Committee Appointed by the Lord President of the Council (Cm 6053, 1975). [10.4]