Guidance on instructing Counsel: common legislative solutions
This guidance is intended to help officials to develop policy and produce instructions for primary legislation of certain commonly occurring types.
Strategies
Description of legislative solution
This legislative solution deals with provisions to give effect to a policy desire for a person to be required to formulate a strategy in relation to a particular objective.
A relevant objective might be the achievement of a particular goal or task, or the tackling of a particular problem or challenge.
Why have a strategy?
Whether to address a problem by way of a legislating for a strategy is, ultimately, a policy question. There might be many reasons for proceeding in this way. To give direction or focus to activity in a particular area? To get various agencies to pull together? To drive activity in relation to a new social value or goal? To make transparent the way in which a person is working? To deliver a degree of "soft" accountability, in the sense of there being a document which gives rise to political accountability even if there are no legal sanctions for non-delivery?
Considering these questions is central both to determining whether a strategy is the right policy choice and if so, what the content of the provision needs to be.
Strategy provisions are popular, but do give rise to an ongoing administrative burden. This burden may be difficult to lift even if, many years later, the issues with which the strategy is concerned are very much diminished in importance.
Elements of the legislative solution
1. Duty to formulate a strategy
Basic idea: requirement for a person to formulate a strategy in relation to an objective.
1.1 Need to describe the objective: i.e. what is it that is to achieved, or helped to be achieved, by the strategy? May be quite specific ( e.g. meeting a target) or more general ( e.g. achieving a certain goal or furthering a certain longer term aim).
1.2 Need to describe the goal of the strategy in relation to the objective, e.g.—
- achieving it;
- helping to achieve it.
1.3 Need to say who is to formulate the strategy. If more than one person, need to say how, legally, they are to work in relation to the formulation of the strategy.
1.4 Need to say whose action is to be regulated by the strategy.
1.5 Need to describe the content of the strategy, e.g.—
- how the objective will be achieved or furthered;
- what action is intended in pursuance of achieving the objective;
- how progress is to be measured.
1.6 Need to describe whose action it is which is to be the subject of the strategy: the person formulating the strategy or someone else? Both?
1.7 Over what period is the strategy to be for?
- Fixed period, e.g. 3 or 5 years?
- Indeterminate?
The answer here may depend on the nature of the strategy.
2. Format of the strategy
2.1 How is the strategy to be embodied?
- Simple requirement to have a strategy?
- Or a requirement to embody the strategy in a document?
2.2 If the strategy is to be set out in a document, should the document be made public in any way ( e.g. published, sent to particular persons, laid before the legislature)?
3. Formulation of the strategy
How is the strategy to be formulated?
3.1 Requirement to consult particular people? If so, is consultation general or on a draft of the strategy?
3.2 Requirement to have regard to particular issues, needs or information?
3.3 If not prepared by Ministers, requirement to involve them? Sometimes strategy must be submitted in draft for Ministerial approval. If so, should Ministers be able to amend? What is to happen if Ministers reject?
3.4 Requirement to obtain agreement of persons subject to the strategy before including material about them?
4. Legal consequences of the strategy
4.1 Is there to be any legal consequence in relation to the strategy?
Not always essential. The existence of the strategy gives rise to a degree of political accountability.
4.2 Sometimes legal consequences are imposed in relation to the achievement of the objective of the strategy, e.g.—
- requirement to, or to endeavour to, achieve it;
- reporting on progress in achieving it.
In such cases, it is probably unnecessary to create legal consequences in relation to the strategy as well.
4.3 Alternatively, may (but as noted above do not need to) create legal consequences in relation to the strategy, e.g.—
- May go so far as a requirement on some person to "follow" or "act in accordance with" the strategy.
- Alternative options include a requirement on some person to "have regard to" the strategy.
4.4 Choices here depend on the nature of the objective, e.g.—
- If a specific objective such as the meeting of a target, may be more appropriate to create legal consequences in relation to the objective. For example, the objective might be to eradicate carbon emissions. It is the failure to do so that matters here, not the failure to follow the strategy.
- If the objective is more uncertain such as "promotion" of some social issue, may be more appropriate to create legal consequences in relation to the strategy. For example, there might be an obligation to have a strategy promoting low carbon living. It is the following of the strategy (or having regard to it) which is important.
4.5 Obligations may be placed on the person whose strategy it is, or on other persons.
4.6 Ministers may be given powers to direct persons to take steps to implement the strategy.
5. Changing the strategy
5.1 What scope should there be for changing the strategy?
- None?
- Free to revise at will?
- Requirement to review or act on particular information to revise?
- Requirement to review may be ongoing ( i.e. "to keep under review") or to be done at or before the expiry of set intervals.
5.2 What should the procedure be for changing the strategy?
- Usually corresponds with the requirements for preparing the strategy in the first place.
- Sometimes relaxed where the proposed changes will not materially alter the strategy.
5.3 If the strategy is changed, should there be any requirements to make the change public?
- Usually corresponds with the requirements for making the strategy public in the first place.
- Sometimes those requirements are relaxed where the proposed changes will not materially alter the strategy.
Related issues
A strategy as described above is about action in pursuance of a particular objective. It can in a narrow sense be distinguished from an obligation to identify the objective itself. Often that objective is stated in the legislation. However, it is perfectly possible for obligations to be put on a person both to identify objectives and to articulate the action to be taken in pursuance of their achievement. Whether in such a case it is right to describe the resulting document as a "strategy" is a moot point, but there are certainly examples of such obligations comprising both elements being called strategies. Drafters can advise on the best language to use in individual cases.
A strategy can also be distinguished from the placing on a person of obligations to set out how they will carry out particular functions without any link to the achievement of particular objectives. Such obligations are, perhaps, further away from a strategy itself and might be more properly be encapsulated in a "plan". Again, however, the best language to use is a matter where drafters can advise.
However these related forms of obligation are characterised and described, many of the elements described above will apply in relation to them.
Examples
Petroleum Act 1998 section 9A to 9C
Bank of England Act 1998 section 9A
Greater London Authority Act 1999 section 41 to 44 (and the various specific strategies in the Act)
Child Poverty Act 2010 sections 9 to 13 (now repealed, but still a relevant example)
Flood and Water Management Act 2010 sections 7 to 12
Autism Act (Northern Ireland) 2011 sections 2 and 3
Health and Social Care Act 2012 section 193
Procurement Reform (Scotland) Act 2014 sections 15 to 17
Housing (Wales) Act 2014 sections 50 and 52
Violence against Women, Domestic Abuse and Sexual Violence (Wales) Act 2015 sections 3 to 8, 12 and 13
Infrastructure Act 2015 section 3 and Schedule 2
Immigration Act 2016 sections 2 and 5
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