In the Box
I recently left the civil after thirty years, and while I have no regrets, one thing I do miss - not least as a former politics student and an unapologetic constitutional geek - is the opportunity to work in Parliament, and in particular to sit in the officials’ box. The box - or rather, boxes, as both the Commons and Lords chambers have them, as does Westminster Hall (though I never went there), and committee rooms have boxes that aren’t strictly boxes - is a small area, sealed off from the chamber, where a handful of officials can watch debates and support and advise their Ministers1.
This is about as physically close as someone who is not a member of either House of Parliament can get to a Parliamentary debate. It is a privilege, something that was brought home to me many years ago when I was on the civil service fast stream, and had already done box duty several times: we were doing a guided tour of Parliament with my parents-in-law and were taken onto the floor of the Commons. The guide pointed to the wooden box: ‘that’s where the civil servants sit’, she said. ‘Actually I was in that box last week’, I replied. I really didn’t mean to sound like I was showing off - it hadn’t occurred to me it was a big deal. But the guide’s jaw dropped: ‘you’re so lucky! - I’d love to have an opportunity to do that!’, she said. And I realised I was indeed lucky.
The box in the Commons is along the back wall behind the Speaker’s chair, next to the Government benches; watch a Commons debate on television and you can sometimes make out the heads of the officials at the far end of the chamber, to the left2. The Commons box has its own door, up a little wooden staircase from the often-busy area outside the chamber behind the Speaker’s chair, where political deals are sometimes done out of view of the cameras; standing waiting to go into the box I sometimes saw senior politicians milling about there. The box itself has a wooden bench and a ledge for papers. Its door is locked during Parliamentary divisions (presumably so officials don’t accidentally vote - it is right next to the door to the ‘Aye’ lobby).
The Lords box is along the side wall of the chamber, and does not have its own door - it is reached through the main door to the chamber, with the throne on the left, and up a few steps. Last time I was there I pulled down the little ledge rather too hard, and it made a loud bang, which seemed (to me) to reverberate round the whole chamber: I always had a sense sitting in the box of being an impostor, trying to be quiet so as not to disturb the peers or MPs nearby, and so allow them to pretend we weren’t there.
There are likely to be officials in the box whenever Ministers are speaking in the chamber: that could be for oral questions, an oral statement or a debate on a Bill or regulations. A Minister’s private secretary (a role I never had) is likely to be there regularly; policy officials less so. Early in my career I think I ‘did the box’ mostly for oral parliamentary questions, but I was there for the statement setting out the Government’s response to the high-profile Tomlinson review of 14-19 qualifications in 2004.
My sense is that box duty is less common now - I don’t think junior officials today get the opportunity as regularly as I used to, and if I’m right that’s probably because of technology. In the olden days, there could be no contact between the box and the outside world, and the only way of giving advice to your Minister was by getting Commons officials to take pieces of paper to the front bench (sometimes in response to an urgent scribbled query coming the other way). So you were reliant on your wits and any briefing documents you had brought with you to advise your Minister when something unexpected came up.
More recently, though, large folders of Q&A briefing carefully decorated with coloured tabs have mostly been replaced in the box by laptops. The wi-fi in Parliament is surprisingly good, so ‘virtual’ boxes become possible, allowing those in the chamber to draw on the experience and advice of colleagues back at base (or working at home - not that long ago I found myself in a virtual box in my sitting room at midnight, waiting for a late debate to finish so I could go to bed.) Communication with Ministers on the front bench also becomes easier - though some Ministers still prefer to work on paper, others are happy to exchange messages electronically. Traditionalists might view this as cheating: I think it is better for democracy and accountability to have Ministers who are properly advised and fully informed when they are speaking in Parliament. From an official’s point of view, this makes doing the box a little less nerve-wracking, too: I always used to worry that an issue would be raised in debate that I had failed to prepare for, and I would have to make up an answer on the spot about something I knew little about.
For a policy official, though, the most intense time in the box generally comes when working on Bills. This includes Departmental Bill teams, who organise the sometimes arcane, usually uncertain and often stressful Bill process, generally to tight and non-negotiable deadlines, to navigate a Bill through its various stages and over the Royal finishing line (Royal Assent, sadly, does not actually involve the monarch signing a Bill: it is usually confirmed by a short ceremony in Norman French in the chambers of the two Houses). I doubt most people outside Government realise how much frantic paddling happens beneath the surface of a Bill debate, however smooth the swan above looks3.
I never worked in a Bill team, but on a number of occasions I led policy teams responsible for parts of a Bill - usually just one or two clauses4. But when I worked on the set-up of Ofqual, the qualifications regulator5, I led the team responsible for the 66 clauses of parts 7 and 8, plus four schedules, of what became the ASCL Act 20096, comprising about a quarter of the Bill. That is probably the proudest achievement of my civil service career.
I’ll come out and say it: for all the challenges, I loved Bill work. I am fascinated by the constitution and history, so it was a privilege to be a tiny part of the process of making new laws, a tradition that goes back nearly eight centuries7, and to do it in an ancient (if somewhat decrepit) building with history seeping from every crack. That said, it could be very stressful and intensely hard work; I felt a huge sense of responsibility, knowing that Ministers were relying on me to have thought everything through on my parts of the Bill, and be able to explain it and support them to make the case to Parliament. Of course, being a senior civil servant always brought with it a sense of responsibility, but it felt particularly raw and immediate working on a Bill: if I had got something wrong my Minister would be the one left publicly embarrassed (I don’t think that ever happened, though there were some nervous moments). I also felt a sense of responsibility for my teams - both proud of them and concerned, at times, about how hard they were having to work.
For a civil servant, Bill work is unusual for two reasons: first because it brings officials much closer to politics than is normal: you find yourself in discussions about how the LibDems will vote in the Lords, worrying about what the Opposition frontbench will do given the wider political situation, or advising on handling the whips or Parliamentary tactics. You can also find yourself having private conversations with Parliamentarians, which rarely happens otherwise. At the request of the Minister, I once had tea in the Lords with an eminent Baroness to explain and try and win her over to the Government’s approach on my part of a Bill. I did not succeed then, but at other times I did have occasional minor successes: there are one or two small provisions in dusty parts of obscure Bills about which I have backstories that will never be told. And I was once rung at home by a peer so he could apologise for laying an amendment, which was rather surreal.
The second oddity of Bill work is that it requires Ministers (and indeed other Parliamentarians) to engage with a level of technical policy detail that they wouldn’t normally have to get into. I’m sure many Ministers must have sat in Bill committees wondering whether they really went into politics so they could read out a carefully drafted briefing note explaining that the proposed amendment is unnecessary because the provision as drafted amends another Act which already has provisions that achieve what the amendment is trying to do, while acknowledging the similarities are easily missed because they were inserted into a schedule by a subsequent Act. Or some such Yes Ministerish construction. (As an aside, a lot of legislation - certainly in the education world, which is what I know - is hard to follow, sometimes even for lawyers, because it has regularly been amended over the years as policy has changed, and has accreted provisions, changed its purpose and lost bits. No political party ever won an election on a manifesto commitment to devote Parliamentary time to consolidating legislation - the mammoth 1996 Education Act was, I think, the last education consolidation act8 - but any such commitment would, at least, win a few votes from civil servants and public lawyers.)
Drafting legislation is a detailed and complex process, which I found intellectually fascinating; it is policy-making at its purest, requiring great discipline in articulating policy intent clearly and simply; vague, waffly rhetoric (as if) is useless to a lawyer. The provisions to establish Ofqual took nearly a year to draft: every word in those 66 sections, over 30 pages of the Act, was extensively debated, discussed and kicked around during the dratfting process to make sure it achieved precisely what Ministers wanted, and that it was coherent and internally consistent, so that the organisation would be able to deal with whatever unpredictable circumstances the future might throw at it9.
Drafting a Bill is perhaps a bit like designing and building a car, and handing it over to a new owner, without having an opportunity for a test-drive; you need to think through exactly how every bit of it would work with every other bit, to be as sure as you can that it will function as intended, without unintended consequences, once it is ‘commenced’10.
The general process for writing a Bill, once Ministers have decided on the policy, is that the relevant policy team works with departmental lawyers to instruct Parliamentary Counsel, the great legal brains who do the actual legislative drafting. The lawyers’ mantra is that instructions should describe the desired effect of the policy, without being so impertinent as to suggest to Counsel how it should be done. Counsel will then usually ask lots of difficult questions to help them understand the instructions, including asking about what should happen in different circumstances, and how the provisions might relate to other requirements in other parts of the Bill, or in other legislation.
(A quick detour: a particularly niche part of most legislation is the consequentials: the changes, which may be significant or minor, that need to be made to other legislation to allow a Bill to work. There is typically a list of consequentials at the back of an Act. I rather like that the consequentials in the schedule to the Succession to the Crown Act 2013, which removed gender as a factor in the line of succession to the monarchy, include changes to the 1351 Treason Act and the Bill of Rights11. This reminds us that ancient statutes are more than just historical documents, and highlights the thread of law that has continued and evolved through the centuries12.
When a policy team receives a letter from Counsel (or these days it might be an email) in response to the instructions, it will typically reveal that there are lots of issues and circumstances the policy thinking had not considered: what does this word mean? What should happen in this situation? Should this possibility be allowed for? A letter from Counsel would typically be followed by long, brain-hurting debates with Departmental lawyers, trying to tease out what our response should be and the implications. Occasionally we might check a point with Ministers, if it raised a significant policy issue, but mostly this was a level of detail that Ministers should not have to get into: policy officials should understand enough about Ministerial intentions to be able to decide what to do.
I remember being on leave one day and taking a phone call from my team while helping tidy my son’s bedroom: we needed to go back to Counsel that night with a response on some point of detail, and needed me to decide what we should say. I made a decision (which is now baked into the legislation), hoping that was the right call, and that it wasn’t something that would come back to haunt us during the passage of the Bill (it didn’t). Occasionally Counsel would ask for a meeting (that was not always good news), and we would be reminded that they were human (and in my experience very sensible and courteous); but mostly the interactions with them were quite formal, and Departmental lawyers showed them great reverence. I once calculated that in drafting the Ofqual provisions we exchanged around 200 letters with Counsel.
Eventually Counsel will start producing clauses, which can be a moment of quiet excitement. Donald Dewar, at the time Scottish Secretary and later First Minister, famously quoted the Scotland Bill’s opening clause when introducing it in a speech in Glasgow in 1997: ‘There shall be a Scottish Parliament. I like that’, he said. Similarly, section 127 of the ASCL Act says (with its more modern drafting), ‘There is to be a body corporate known as the Office of Qualifications and Examinations Regulation.’ Reading that in draft for the first time, I liked that. The clauses that followed were rather more complex, though, and in some cases contentious too. Sometimes apparently simple policy ideas take many words to articulate with sufficient legal clarity, and the opposite can also be true.
Once drafted, the Bill will be signed off by Ministers and others, introduced to Parliament and start making its way through through the legislative process. Every Bill has to get through both the Commons and Lords consecutively, with five main stages in each House13. The most intense stage for officials is Committee, which for the Commons is usually in a committee room, while Lords committee is held in the chamber. Committee stage provides an opportunity to debate and challenge (and potentially amend) every clause of a Bill, so it is the point where any issues with the detail are exposed.
The officials in Commons Bill committee sit at the top table, like the bride’s mother at a wedding, next to the committee chair. The layout is like a smaller version of the chamber, so the Minister is right in front of them, sometimes close enough that they can directly hand over pieces of paper with scribbled advice. Opposition MPs lay amendments to the Bill, either to change or add to the effect of the Bill, some of which will be ‘probing amendments’ to test the Government’s position and thinking. At times my life was dominated by Notes on Amendments, the documents giving advice to Ministers on the response to an amendment or a group of related amendments, with a speech and responses to anticipated questions. On more than one occasion I took my kids to friends’ birthday parties and found a quiet corner in a soft play centre to work on NoAs.
Governments have majorities on Commons committees, so the risk of losing a vote is low - though one of the rare occasions it happened was on the Ofqual Bill, when at the start of the day the Opposition realised that not enough Government MPs had turned up (President Lyndon Johnson said that the first rule of politics is to be able to count), allowing them to win a series of votes to remove clauses completely. As the committee started taking chunks out of the Bill, I was sitting next to the committee chair in full view of the whole room, trying to look appropriately neutral as the whips - the political side of the Government operation - scrambled to try and find the missing MPs and minimise the damage. It was at once funny and infuriating. The lost clauses were later reinserted, but it was embarrassing for the Government, and an unnecessary waste of time.
Even when the Government - as it should - comfortably gets a Bill through Commons committee14, the quality of the debate matters, both to the individual Minister and the Government as a whole. Ministers want to show they are on top of the detail of their Bill, and able to defend it convincingly. And Governments want to be able to demonstrate that their legislation has been properly thought through and supports their wider policy ambitions. More practically, if a Government struggles to defend its provisions in debate in the Commons, the Opposition will scent an opportunity to cause problems when the Bill gets to the Lords15.
So committee really matters. It is where I felt that sense of responsibility to my Ministers most acutely: they were the one in the frame, and it was their policy that was being debated; but when MPs started discussing the detail of the provisions or asking how they were going to work, that was my and my team’s work being scrutinised. One of my memories of committee stages for the Ofqual Bill is the team printing reams of documents, often working late into the evening, and then dragging a trolley full of paper across the road to the Palace of Westminster, so that we had with us pre-printed, legally sound answers to every possible question we could think of16. Occasionally, though, a question was raised we hadn’t predicted, and I had to rapidly hand-write the answer, as legibly as possible, clear it with the lawyer next to me and hand it to the Minister (or in the Lords, find someone to take it to them); moments of intense stress, but satisfying when things went well, and I felt like I’d given my Minister the support they needed. In my experience Ministers were almost always grateful, and recognised the hard work teams had put in.
The House of Lords is different, because Governments don’t have majorities there, as there are large numbers of crossbench peers, so getting a Bill through will involve some negotiation and engagement with peers, both in the chamber and behind the scenes. Governments sometimes have to make concessions - agree to change policy in order to win votes, or avoid votes altogether. Sitting in the Lords box (or more recently in a virtual box) trying to work out whether the Minister is carrying the House, and so will be persuasive enough to avoid a vote on some tricky issue, felt like accountability - and political judgement - at its most raw. I always found it particularly satisfying when I managed to help a Minister to navigate rough political seas and get a clause safely into harbour unscathed.
Government amendments can result not only from concessions, but also changes in Government policy, or a realisation behind the scenes that there is a technical problem with the Bill. Once Counsel noticed late on in the process that one paragraph in a schedule17 didn’t achieve the effect we’d intended. After putting a towel over my head I just about understood the issue. We had to give the Minister a deeply technical speech to explain and justify the amendment, which we made as short as possible, but I suspect neither they nor any others in the chamber understood it (it was a paragraph that would almost certainly have got no Parliamentary attention had we not needed to amend it). Bill work can swing wildly between such technical complexities and big politics, often at vertiginous speed.
Inevitably Parliamentary work has its own language: when I found myself discussing stand-parts, double insistence18, transitional and savings provisions19, delegated powers memoranda, explanatory notes, programme motions, reasoned amendments, Sewel motions20 or the Salisbury convention21, or advising on some arcane bit of Parliamentary procedure, I would realise that I was irretrievably embedded in the work of the Bill - and probably enjoying it…
Writing this, I’ve been reflecting on how I feel about the legislative process - not as a civil servant now, but as a citizen. It’s imperfect, of course: legislation is usually complex and often it must be difficult for Parliamentarians, even those with legal or relevant policy experience, to understand what a Bill is saying and what to be concerned about. Generally speaking, debates I watched focused on the principles - whether this was the right policy - rather than the details of how the provisions would work; and when Parliamentarians did the latter they sometimes got bogged down, or saw conspiracies that weren’t there. ‘Ask us this and you’d really have us on the ropes’, I would sometimes think during debates, but they rarely did. And even when Parliament was being particularly forensic and awkward, creating difficulties for some piece of legislation I was working on, I always managed to feel glad that we live in a system where Governments have to work hard to get their laws agreed. That doesn’t happen everywhere.
I’ve realised that quite a lot of the benefit of Parliamentary scrutiny is pre-emptive: the knowledge of what is to come forces Departments to try and be fully prepared before a Bill is introduced, to avoid embarrassment or worse down the line. Huge amounts of work are done behind the scenes with Counsel, the Bill team, Ministers and the Cabinet Office to make sure that when Bills start their Parliamentary journeys, they are as ready and defensible as possible, and that policy and political risks are identified and prepared for. Even so, there is no shortage of examples of where that hasn’t worked, leading to Bills going wrong, though thankfully not on any Bill I ever worked on. Ministers I worked for always took legislation seriously, and sought to make sure that their Bills were ready in case Parliamentarians spotted the problems and weaknesses, even knowing that often they wouldn’t. In reality, Parliament has to take a lot of the details of legislation on trust, and in my experience they generally can. Nevertheless, Parliament itself sometimes makes arrangements for pre-legislative scrutiny, and a committee reviews delegated powers22. And of course there is wider political accountability: Bills are one part of Ministers achieving the commitments for which they will ultimately be held to account by the electorate. On reflection, I’m not sure I can think of a radically better system.
From a personal point of view, I will always treasure those moments after a debate had finished, leaving the box and walking with my team through Westminster Hall and out of New Palace Yard, often late at night, feeling a sense of exhaustion, relief and pride - sometimes ready for a drink, and sometimes only fit to sleep. Inevitably, a sense of exceptional camaraderie develops among those working on a Bill - when I see people I worked with on the Ofqual Bill we still reminisce about what we went through together all those years ago. And yes, it is a bit sad that I’ll never do that again.
No Ministers have been named in the writing of this Substack.
I have no idea if the box on the other side is available for use by Opposition advisers.
I’m sure different Departments organise Bill work differently - for example, some Departments will have much more regular legislation than DfE - but I assume the broad approach will be similar.
I also worked on emergency legislation under the 1984 Public Health Act when I was part of the Covid response in 2020, but that’s a different story.
A companion agency called QCDA was set up at the same time, but was abolished soon after.
When it receives Royal Assent, a Bill becomes an Act, and the clauses within it become sections.
The first English statute was the 1235 Statute of Merton in the reign of Henry III.
The 1996 Act contains the magnificent section 462(4): ‘In this Chapter references to a public examination (or a prescribed public examination) are references to such an examination as it applies in relation to persons who are entered for a syllabus for that examination with a view to meeting the examination requirements for that syllabus so as to qualify for assessment for the purposes of determining their achievements in that examination on any particular occasion in any year when an assessment takes place.’
I suspect it’s relatively unusual to have that much time to draft a Bill, but it certainly didn’t feel relaxed given the amount of thought required to create such an organisation, and its powers, from scratch.
Even once they have Royal Assent, Acts don’t usually become law until they are commenced, typically by a Ministerial regulation. Some legislation is in fact never commenced - perhaps most famously the Easter Act 1928, which would have changed the date of Easter so it was always the first Sunday after the second Saturday in April: it was passed by Parliament almost a century ago but will never become law.
Despite the name, the Bill of Rights is an Act not a Bill, and may be cited without reference to a year, which for reasons is officially 1688 even though it was passed in December 1689.
64,000 Acts of Parliament dating back to 1497 are held in Victoria Tower at the south end of the Palace of Westminster - see https://lookup.london/parliamentary-archives/
The main stages are normally first reading, second reading, committee stage, report and third reading.
I was never involved in a Bill where there was a Government backbench rebellion, but that must be a particularly stressful experience for everyone involved.
Some Bills start in the Lords, but generally the higher profile ones begin in the Commons.
That all seems quite old-fashioned now.
Schedules are the annexes at the back of Bills/Acts where more detailed, technical provisions sit; they are often ignored during the Parliamentary scutiny process.
Double insistence is when ping-pong goes wrong; ping-pong is the process by which Bills are negotiated between the Houses if they disagree (though I don’t know what it was called before table tennis was invented).
Provisions which allow any awkward changes to be smoothed over when one bit of legislation replaces another.
Relating to the devolved governments.
Under which the Lords will not oppose a measure relating to a Manifesto commitment.
When the detail is left to regulations rather than being on the face of the Bill.