Publication - Advice and guidance

Guidance on instructing Counsel: common legislative solutions

Published: 16 Jan 2018
Justice Directorate
Part of:
Law and order

This guidance is intended to help officials to develop policy and produce instructions for primary legislation of certain commonly occurring types.

74 page PDF

804.0 kB

74 page PDF

804.0 kB

Guidance on instructing Counsel: common legislative solutions

74 page PDF

804.0 kB


Description of the legislative solution

This solution is designed to impose specific duties on two or more parties to work with each other if certain criteria are satisfied.

This may involve a party delegating functions to another body, a party exercising functions on behalf of another body, a party assisting another body with its functions, a body co-ordinating functions for another body or two parties jointly exercising functions. Other activities are possible.

The purpose of such collaborative arrangements may be to increase efficiency, although different purposes may be specified.

This solution forms part of a category of legislative solutions that relate to cooperation and joint working. See below for a description of some of these other solutions.

Related legislative solutions

This solution forms part of a category of legislative solutions that relate to bodies working together. These include:

  • The general cooperation solution, which is where bodies are put under a general duty to cooperate with each other.
  • The joint working solution, which is usually somewhere between the general cooperation solution and the collaboration solution in terms of how intense the duty is.
  • The asymmetric duty solution, which is where a body is simply required to provide another body with help or resources. This is done using simple duties but can achieve the same effect of a collaboration (such as efficiencies etc).

Elements of the solution

1. Define collaboration arrangements

- What kind of collaboration arrangements are envisaged?

  • For example, the parties might only be required to assist in the exercise of the other parties' functions. This is relatively light touch.
  • However, many collaborations involve either:
    • the parties discharging functions jointly, or
    • one party discharging functions on behalf of another party.
  • In addition, the focus of the collaboration may be on 'back office' functions or on operational functions (a collaboration would usually stop short of a full merger).

- Each form of collaboration has different implications, which need to be considered. For instance, if one party should be able to discharge the functions of another party, the following points need to be considered:

  • Who should be responsible for the exercise of the functions?
  • Are powers of delegation required to effect the collaboration?
  • Should the party that is exercising the functions be able to charge a fee for providing the service?
  • Should the arrangement be symmetrical (each party being able to exercise the other's functions) or asymmetrical (one party being able to exercise the functions of another, but not the other way round)?

2. Is legislation needed?

- Depending on the kind of collaboration that is intended, there is the question of whether legislation is needed to achieve this. Legal advice will be needed to answer this question.

3. Identify parties

- Who is to be the subject of the collaboration arrangements? For instance, two or more categories of public bodies could be involved. This is a basic requirement.

- Should it be possible for additional, non-specified parties to be involved in the arrangements? For instance, it might be desirable to allow a contractor to be party to the arrangements if the contractor might actually perform the functions involved. This allows for more flexibility.

4. Identify functions

- What functions should be subject to the collaboration agreement?

  • Will it be all or some of the functions of the parties involved?
    • If it is only some of the functions, is the dividing line between those functions and the body's other functions sufficiently clear?

- Is there a need to distinguish between "operational" and "back-office" functions? In some cases, the objective is to allow back-office functions to be merged without impacting operational functions. A particular example is collaboration between the emergency services.

5. Define purpose

- Should the purpose of entering into the collaboration arrangements be defined? For instance, the collaboration could be for the purposes of:

  • Making the exercise of the parties' functions more efficient,
  • Making the exercise of the parties' functions more effective, or
  • Promoting the uptake of a particular service or product provided by the parties.

- If a purpose is defined, this can be used as a relevant consideration for the parties. For instance, if a party is considering whether to enter into collaboration arrangements the body might be required to take into account whether the arrangements would be in the interests of efficiency or effectiveness.

6. Process of entering into collaboration arrangements

- Should the parties be required to consider on an ongoing basis whether they should enter into collaboration arrangements with each other? This may be useful if there is a concern that the parties would not otherwise consider entering into such arrangements.

- Should there be a procedure for how arrangements might be arrived at? Here is an example of a possible procedure:

  • Party A could consider that it is in the interests of its effectiveness to collaborate with Party B.
  • Party A notifies Party B of this.
  • Party B considers whether it would be in the interests of its own effectiveness to collaborate with Party A.
  • If Party B concludes that it would be, Party A and Party B must enter into collaboration arrangements.

- What is to be the mechanism for parties to agree on:

  • the functions that will be subject of the arrangements, and
  • how they are to be exercised (whether jointly or by one party on behalf of another)?

- Should there be a requirement to consult, and if so who should be consulted and how should they be consulted? Depending on the bodies involved, it may be desirable to have consultation requirements so that stakeholders' views are taken into account.

- Should it be possible for collaboration to be imposed on parties by way of a direction from Ministers (or a Northern Ireland department)? This may be needed if it is considered that the parties might not otherwise work together.

7. Restrictions

- Should there be any exceptions to the requirement to collaborate? For instance, it may be that one of the parties has a particularly sensitive function that should not be subject to the arrangements.

- Do special considerations need to be taken into account when considering whether to collaborate? Again, a party may have a sensitive functions that should be given particular regard before collaborating.

- Are special consultation requirements required for any of the parties? For instance, some bodies are overseen by others and it might be appropriate for that party to consult the overseer before entering into arrangements (for instance, some police forces are overseen by police and crime commissioners or by policing boards).

8. Effect of collaboration arrangements

- Consider whether the functions that are the subject of the collaboration agreement are to be exercised on the basis of the parties' current powers, or whether new powers are required. For instance, it may be that some of the parties do not have sufficient powers to delegate functions.

  • It may be that the policy is to ensure that the parties simply have sufficient powers to give effect to the collaboration. If so, it may be that a general power is needed to allow the parties to do anything "necessary or expedient" in relation to the collaboration. However, if the policy is not to give any significant new powers to the parties, such a power may need to be qualified by reference to any other legal restrictions imposed on the parties.

- If Party A is exercising the functions of Party B under the collaboration arrangements, should Party B still be able to exercise those functions? Or should Party B be unable to exercise those functions?

- Should a duty to take all reasonable steps to give effect to the collaboration be imposed on the parties? It may be thought that the parties need to be further encouraged to collaborate once the arrangements are in place.

9. Additional matters to consider

The following issues will need to be considered:

- Payments: Should the parties be allowed to make payments to each other in pursuance of the collaboration agreement? This is particularly relevant in cases where a body is exercising the functions of another body.

- Formal requirements: Is the collaboration to be contained in a document? Should it be published? Should Ministers (or a Northern Ireland department) be informed?

- Sanction: Should there be an explicit sanction for any failure to comply with any of duties relevant to entering into collaboration arrangements? An alternative is to rely on judicial review if the only parties to the agreement are public bodies.

- Ending collaboration: How, and in what circumstances, is (or may) the collaboration to be brought to an end? An example might be a time limit, although another option would be to allow the parties to withdraw from the arrangements if it no longer served its purpose (such as efficiency).

- Variation: Consider how, and in what circumstances, the parties can vary their collaboration arrangements.

- Information sharing: Consider whether any information sharing powers are required, and if so whether anything needs to be said about the use of shared information.

NB: legal advice may be required as regards information sharing and data protection.

- Guidance: Should there be a power or duty to provide guidance about collaboration arrangements for the parties?

- Devolution: If the collaboration will involve bodies across jurisdictions, are there any special considerations? For instance, are technical provisions required to make this work? Legal advice will be needed on this point.

- Dispute resolution: Is a mechanism needed to address situations where a collaboration breaks down or is threatening to break down?

- Scrutiny / accountability: Is there a need to have a mechanism that allows for scrutiny of the collaboration? For instance, a reporting requirement on the parties might assist with this.

Examples of the legislative solution

Police Act 1996 sections 22A to 23I (collaboration agreements)

Learning and Skills Act 2000 section 33K (delivery of local curriculum entitlements: joint working)

Education Act 2002 section 26 (collaboration between schools)

Civil Contingencies Act 2004 sections 15 and 15A (cross-border collaboration)

Education (Wales) Measure 2011 section 3 (duty of education body to collaborate)

Schools Standards and Organisation (Wales) Act 2013 sections 5, 12 and 13

Public Bodies (Joint Working) (Scotland) Act 2014

Social Services and Well-being (Wales) Act 2014 sections 12 and 160 and Part 9

Environment (Wales) Act 2016 sections 14, 15 and 46

Regulation and Inspection of Social Care (Wales) Act 2016 Part 9

Policing and Crime Act 2017 Part 1, Chapter 1 (collaboration of emergency services)