Thursday, December 07, 2006

One rule for treasury draftsmen ...

In these days of plain English and legislation against unfair and unclear terms in consumer contracts, one can’t help wishing that there was something similar which applied to statutory instruments.

I have been trying to make sense of The Disability Discrimination (Premises) Regulations 2006 but I have to say that so far I have found them almost wholly impenetrable. Of course this may be because their general literary style is so deeply boring it is difficult to work up much interest in mentally cross referencing the necessary three or four sections so you can work out what the section you are looking at is talking about.

If this sort of thing was printed in a consumer contract it would be slated by the OFT as unfair and be unenforceable. But although this is not a contract, it is relevant to consumers, as presumably not only lawyers will need to know about disability discrimination in premises. But it is drafted in such a way that most ordinary people will never be able to understand it. Even the explanatory note at the bottom is not wholly clear. Would that treasury draftsmen were subject to the same drafting rules as the rest of us!

Stumble Upon Toolbar


MarkP said...

I couldn't agree more.

I work as a paralegal, giving advice under the legal aid scheme. When I find myself unable to decipher particularly poorly drafted legislation, it often strikes me how the law is needlessly made so inpenetrable to the man on the street.

But as I'm sure your aware Tessa its not just a problem of the language used by parliamentary counsel when drafting legislation.

When I got my current job and started giving legal advice I thought 'great, the Office of Public Sector Information provides the texts of all legislation on the net!'

But only Acts and regulations from 1988 onwards are provided online. Which begs the question, why haven't they added earlier legislation?

And hang on, the versions provided online are the unamended versions, i.e. the original version when the piece of legislation was originally enacted, which doesn't include all the amendments made to the wording of an Act by subsequent Acts. Which means, yes readers, the version online is usually obsolete.

And in these days of a new Act of Parliament or regulation for every Daily Mail headline, that's a hell of a lot of amendments to track down.

I'm lucky. I work for an organisation which pays for a legal encyclopeadia which provides the up to date wording of housing legislation together with an explanatory commentary, and also court judgements. But how is a member of the public, who perhaps can't afford a lawyer, or who just wants to find the relevant law, supposed to access it? Well of course the simple answer is they usually can't.

Also, given that much law is judge made law, why not provide all reported court judgements online while we're at it. If the law affects everyone shouldn't we all have access to it?

Before we try to make parliamentary counsel use plain English perhaps we should start by actually making the law available to the public. It wouldn't actually cost that much, but would provide real benefits to the public.

Tessa said...

There are actually quite a few initiatives. The most important perhaps is BAILII which is gradually getting more and more cases online. I believe that there is also a Statute Law Database in development which will show amendments, and which will be f.o.c. to the public.

Head of Legal said...

Those regs will have been drafted by a DWP lawyer, Tessa: Parly Counsel only draft a limited amount of secondary legislation - things that substantially amend primary legislation, for instance. I'm sure these don't come into that category. These regulations will already have been looked at by the Joint Committee (of both Houses of Parliament) on Statutory Instruments, but you might want to contact them if you want to have a moan about the drafting of any regulations in the future!