The Civil Servant as Legislator: Law Making in British Administration
| Published date | 01 December 2003 |
| Date | 01 December 2003 |
| DOI | http://doi.org/10.1111/j.0033-3298.2003.00366.x |
| Author | Edward C. Page |
ARTICLES
Public Administration Vol. 81 No. 4, 2003 (651–679)
© Blackwell Publishing Ltd. 2003, 9600 Garsington Road, Oxford OX4 2DQ, UK and 350 Main Street,
Malden, MA 02148, USA.
THE CIVIL SERVANT AS LEGISLATOR: LAW
MAKING IN BRITISH ADMINISTRATION
EDWARD C. PAGE
How are government policy commitments converted into legislation and what
happens in the conversion? The role of civil servants in preparing legislation is far
more important than is generally assumed. By looking at the work of four recent
bill teams in Britain – teams of civil servants given the task of developing Acts of
Parliament – their crucial roles in initiating policies, placing them on the political
agenda (even helping secure their place in a party manifesto), developing them,
making sure they pass through parliament and enacting them once they have
reached the statute books are assessed. The article explores the composition and
working methods of bill teams. These teams work with considerable autonomy in
developing legislation, but it cannot be assumed that they operate outside ministerial
control. Teams see themselves as reflecting the priorities of the government in
general and their ministers in particular. Yet ministers typically know relatively little
about the law they are bringing in until they receive the submissions and briefings
from their officials. Perhaps the biggest danger for democracy is not a civil service
putting forward proposals which a minister feels forced to accept, but rather that
ministers do not notice or fully appreciate what is being proposed in their name
despite having the political authority to change it and a civil service which bends
over backwards to consult and accommodate them.
INTRODUCTION
When governments have majorities, as they generally do in Britain, they
give the impression of being able to formulate policies and put them on the
statute book, as the comedian and conjurer Tommy Cooper would have
said, ‘just like that’. But it is not as easy as that. The language of party
government that produces broad strategic policy steers is not the same as
Edward C. Page, FBA is Sidney and Beat rice Webb Professor of Public Policy in the Depart ment of
Government at the London School of Economics.
padm81(4).book Page 651 Friday, November 14, 2003 10:29 AM
652 EDWARD C. PAGE
© Blackwell Publishing Ltd. 2003
the technical legal language that produces the detail of an Act of Parliament.
At a very minimum civil servants work as translators. How far their contri-
bution is largely limited to such translation and how far they participate in
shaping what may be termed ‘policy’, or broader strategic issues behind the
legislation, is, despite all the academic studies of policy-making in Britain
and the role of parliament, almost entirely unknown. The question is rarely
asked about how legislation comes to be written (except in the limited sense
of drafting, see Renton 1975; for an exception see Crow 1973 esp. pp. 35–94).
The purpose of this article is to help fill this large gap in our knowledge
about the involvement of the civil servant in the legislative process.
When asking how something works about which we know virtually nothing,
one must almost unavoidably take an inductive approach. It would not be
hard to tweak the usual-suspect theories to address the role of civil servants
in the legislative process – including neo-institutionalist, rational choice,
network and principal-agent models. To explore the full range of hypotheses
or expectations that could be based on such theories on a trial-and-error
basis would not only be tedious, but would also drown a limited volume of
empirical observation in a sea of apparently technical jargon and fail to provide
a coherent account of what goes on in government. The approach taken in
this paper aspires to neo-realism of the kind associated with De Sica (1948).
By first offering an essentially narrative account one is not claiming to explain
‘just the facts’ and ignoring the broader implications for our understanding
of the role of bureaucracy, but rather laying some substantial foundations
for a wider discussion of the role of bureaucrats in the policy process.
In keeping with these two ambitions – to describe the role of the bureau-
crat in the legislative process and to assess the wider implications of the
pattern that emerges for our understanding of the policy process – this
article is based on evidence gained from talking to the civil servants who
produced four recent Acts of Parliament. There is always the possibility that
respondents will seek to exaggerate their role in the policy process. How-
ever, the fact that legislation is a public and highly documented process
means it is possible to cross-check most of the statements made by the civil
servants interviewed. The four bills examined, all passed as Acts in 2002,
were Employment, Adoption and Children, Proceeds of Crime, and Land
Registration (hereafter labelled ‘Employment’, ‘Adoption’, ‘Crime’ and
‘Land’). Thumbnail sketches of these bills are set out in the Appendix (for a
detailed discussion of the relevant bills, see Blair and Broadbridge 2001;
Lourie and Vidler 2001; Roll 2001; Wilson 2001). The role of bureaucracy in
developing legislation is set out by first discussing which particular bureau-
crats we are talking about – primarily but not exclusively officials who are
part of the bill teams charged with producing the legislation. Next, the expos-
ition deals with the roles of officials in the process of legislation: how they
help place items on the political and legislative agenda, their contribution to
policy development and their work on the legislation when it is in its parlia-
mentary stages. The article goes on to deal with the post-parliamentary
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