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Cabinet Office Circulars

CO (07) 4

02 August 2007

Enquiries:
Private Secretary, Office of the Minister Responsible for the Law Commission
Ph: 470 6564

Constitutional Team, Ministry of Justice
Ph: 918 8800

Legislation Coordinator, Cabinet Office
Ph: 471 9643

 

All Ministers
All Chief Executives
All Senior Private Secretaries
All Private Secretaries
Clerk of the House of Representatives

 

Law Commission: Processes for Project Selection and Government Response to Reports

 

Key points

 

Introduction

 

  1. Cabinet has recently made decisions revising aspects of the interaction between the Law Commission and executive government.

  2. Projects for the Law Commission may be proposed by any Minister or by the Law Commission in consultation with its stakeholders. This circular, which replaces Cabinet Office circular CO (01) 13, sets out new processes for:

    2.1 selecting projects referred to the Law Commission by the government (government references);

    2.2 the government to respond to Law Commission reports resulting from either government references or projects initiated by the Law Commission (self-initiated projects).

  3. The processes in this circular apply to reports in the Law Commission’s report series. They do not apply to reports in the Law Commission preliminary paper series, study paper series, or annual reports.

Projects referred to the Law Commission by the government

 

Process for selecting Law Commission projects

  1. Cabinet will be asked to agree to government references on the Law Commission’s work programme on an annual basis. This process will be initiated each year by the Minister Responsible for the Law Commission (MRLC) writing to all Ministers inviting suitable proposals with a view to settling the work programme by the end of June 1. To allow for adequate scoping and costing of potential projects, early correspondence with and engagement by Ministers will be desirable.

  2. Following consultation with Ministers, the MRLC will submit a paper to Cabinet proposing possible projects for the Law Commission. Only projects supported by the relevant portfolio Ministers should be contained in the Cabinet paper. The resource implications for the relevant departments in working with the Law Commission on a particular project are to be described in the initial Cabinet paper.

Collaboration between agencies on government references to the Law Commission

  1. If Cabinet approves a project, departmental resources should be made available to work on the project so that officials are kept in touch with the development of the project and can provide advice on it. This may include the provision of Parliamentary Counsel Office legislative drafting assistance, if the nature of the report is such that it would be appropriate to append a draft Bill to it. The extent to which the Parliamentary Counsel Office will provide assistance at this stage will be considered by the government on a case by case basis.

  2. There should be close collaboration between the Law Commission and relevant government agencies during the life of Law Commission projects, in an endeavour to reach a consensus. Any differences of opinion should be clearly identified and discussed during the project.

Presentation of Law Commission reports to the government and the House

  1. After the Law Commission has completed a report, it will submit the report to the MRLC and the relevant portfolio Minister and seek the portfolio Minister’s initial views.

  2. The Minister Responsible for the Law Commission is required to present all Law Commission reports to the House of Representatives (the House) and publish reports in accordance with section 16 of the Law Commission Act 1985. Once a report has been presented to the House, or 20 working days after an advance copy of the report has been forwarded to the MRLC and the relevant portfolio Minister, the Law Commission will, as it does now, publish the report. This 20 working day period is to allow the government time to prepare its initial views for conveying to the Law Commission and more widely as appropriate.

  3. After the MRLC has presented the Law Commission report to the House, the office of the MRLC will send the Cabinet Office a copy of the report, and inform the Cabinet Office of:

    10.1 the date on which the report was presented to the House;

    10.2 which portfolio Minister is responsible for preparing a Cabinet paper.

  4. The Cabinet Office, as part of its monitoring function, will monitor the progress of responses to Law Commission reports.

Cabinet consideration of Law Commission recommendations

  1. Once a portfolio Minister has received a Law Commission report, a draft Cabinet paper will be promptly prepared reflecting the views of the Minister and all relevant agencies, and incorporating split recommendations where there is no consensus. Unless the Minister directs otherwise, the Law Commission will prepare the draft Cabinet paper on the Minister’s behalf.

  2. When the relevant Minister is satisfied with the draft Cabinet paper, he or she will submit the paper to a Cabinet committee seeking Cabinet’s approval for the recommendations to the extent that the Minister considers appropriate.

  3. If Cabinet accepts the recommendations, with the effect that a Bill will be required, it will add the Bill to the Legislation Programme with an appropriate priority. If a Bill ready for introduction is not already appended to the Law Commission report, Cabinet may invite either the Minister or the Law Commission (as considered by Cabinet to be appropriate in the particular case) to issue drafting instructions to the Parliamentary Counsel Office. The Bill that ensues will be introduced in the normal way in the name of the portfolio Minister.

Government response may be required

  1. Where Cabinet accepts the Law Commission’s recommendations, there will be no need for a formal government response to the Law Commission report to be presented to the House.

  2. If Cabinet rejects the recommendations, the government will continue to be required to formally respond (as it is at present), by way of a paper presented to the House within six months of the presentation of the Law Commission’s report to the House. This process is set out in paragraphs 21 to 23.

Projects initiated by the Law Commission

 

  1. It remains open to the Law Commission to initiate projects itself.

  2. In the case of Law Commission reports on such projects, the government continues to be required to respond to the recommendations within six months of the presentation of the Law Commission report to the House, either by presenting a response to the House or by introducing a Bill within that six-month period.

  3. If the Law Commission report raises matters that require policy decisions to be taken by Cabinet, a paper will need to be submitted to the appropriate Cabinet committee prior to the consideration of a proposed government response or Bill by the Cabinet Legislation Committee. The process for presenting a response to the House is set out in paragraphs 21 to 23.

Process where government response to be presented to House

 

  1. The government will still be required to present to the House a response to a Law Commission report in two circumstances:

    20.1 if Cabinet rejects the Law Commission’s recommendations on a government reference; or

    20.2 if the government responds to self-initiated Law Commission projects other than by introducing a draft Bill within six months of the presentation of the Law Commission’s report to the House.

  2. A government response must be presented to the House within six months from the time that the Law Commission presents its report to the House.

  3. Where a government response is required to a Law Commission report, the relevant Minister must seek Cabinet approval for the text of the government response by submitting the response, with a Cabinet paper, to the Cabinet Legislation Committee and Cabinet. Template documents showing the standard format for a government response and the Cabinet Legislation Committee paper are attached as Appendices 1 and 2. The template will need to be adapted to match the format of the particular Law Commission recommendations. It may be appropriate to summarise or cluster key recommendations together when drafting the government response.

  4. Once approved by Cabinet, the office of the Minister concerned must arrange the presentation of the government response by delivering it the Clerk of the House of Representatives in the usual way.

Place on annual Legislation Programme still required

 

  1. A place on the annual Legislation Programme is still required for proposals for Bills that emerge as a result of the government accepting Law Commission recommendations. Ministers should submit proposals for Bills to be incorporated into the annual Legislation Programme, either as part of the annual process (if the prospect of a Bill is known at that stage) or as part of the Cabinet paper seeking agreement to the Law Commission’s recommendations. The normal processes for obtaining a place on the Legislation Programme are set out in Chapter 5 of the Cabinet Manual, the legislation procedures in the Cabinet Office Step By Step Guide (CabGuide), and the relevant annual circular.

 

Diane Morcom
Secretary of the Cabinet

 


1. For the 2007/08 year, this process will be concluded by the end of September 2007.




Appendix 1

 

Below is the format for recommendations for a paper seeking approval by LEG of the government response to a Law Commission report.

 

 

The Minister of xx recommends that the Cabinet Legislation Committee:

 

  1. note that on xx date], the Minister Responsible for the Law Commission presented the Law Commission’s report entitled xx to the House;

  2. note that the Law Commission recommended that the government:

    xx [summarise key recommendations of Law Commission’s report];

  3. note that on xx [date],

    xx [summarise any relevant policy decisions taken with appropriate minute references];

  4. note the submission of the Minister of xx and in particular his/her advice that:

    xx [summarise main points of the proposed government response];

  5. approve the proposed government response, attached to this submission, to the report of the Law Commission entitled xx;

  6. note that the government response must be presented to the House by xx [date specified in the Cabinet Office request for response];

  7. invite the Minister of xx to present the government response to the House.

 

Note: The above format is set out on the basis of prior approval of the relevant policy issue. If necessary, the proposed government response could be prepared and considered by a policy committee at the same time as the policy is considered. In that case, the above recommendations should be adapted and added to the policy paper. There would then be no need for the proposed government response to be considered by LEG.

 

 


Appendix 2

GOVERNMENT RESPONSE TO LAW COMMISSION REPORT ON [title]

Presented to the House of Representatives

 

 

GOVERNMENT RESPONSE TO LAW COMMISSION REPORT ON [title – as on cover page]

 

Introduction

 

An opening remark such as:

“The government has carefully considered the Law Commission’s report on xx”.

or

“The government welcomes the Law Commission’s report which represents a major contribution to the development of policy on xx”.

 

A sentence stating:

“The government responds to the report in accordance with Cabinet Office circular CO (07) 4”.

 

Any general statements or explanations of the nature and content of the response, such as:

“The government has taken (or intends to take) action on the majority of the Commission’s recommendations”.

or

“The government has taken action on certain of the Commission’s recommendations, but is as yet unable to respond positively on the recommendations dealing with xx because xx”.

or

“The government has carefully considered the Commission’s recommendations and has identified the need for further work on the issues raised. The government priority for this further work, relative to other higher priorities, means that significant progress on this work is unlikely to be made within the next xx.”



Law Commission Report and Government Response

 

Law Commission Report

[Summarise key recommendations of Law Commission’s report].



Response

List key recommendations of report and response in turn.

[For each recommendation or group of recommendations: State response. This should be concise and informative. Responses should be framed in terms of how “the government” responds to the issue, with references to the responsibilities of and action taken by particular Ministers/departments as appropriate].

 

Conclusion

 

Brief summary of overall response.

 

 

 

 

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