EXPLANATORY MATERIAL

  1. Legislation is often criticised as obscure or in any event difficult to read. There are many factors, apart from the fallibility of the drafters and policy-makers, which contribute to this situation.

-    Certainty is a prime objective: it can make for long and detailed legislation.


-    Society and the economy have become more complex, meaning that legislation has had to become more elaborate to cater for a wider and more complex range of circumstances.


-    The law accumulated on the statute book is long and complicated, which means that legislation to extend or amend it tends to be long and complicated too.


-    Many Bills are produced too quickly to get the policy and drafting right, or to allow time for public consultation, before they are introduced into Parliament.


-    Heavy amendment of a Bill as it goes through Parliament often distorts its structure.

  2. Addressing these problems is easier in some cases than in others. But many of the most promising solutions involve increasing the time and care spent on the detailed development of policy and on drafting; and the establishment of better procedures for examining proposals. There have been some useful recent initiatives.

  3. There is now increased emphasis on the production of draft legislation for consultation and on the practice of announcing in the Queen's Speech not only the programme for the new session but also some of the candidates for the next. Both these developments should help to increase the time available for getting policy and drafting right before Bills are introduced. There will always be situations where legislation cannot be drafted early; but the more regularly that can be done, the better the general quality of Bills will be.

  4. The Inland Revenue has embarked on a major project to improve and simplify tax law. And of course the Law Commission has for over 30 years been making proposals for consolidation and for law reform. The work being done by these two bodies will make existing law easier to use.

  5. However, developments of these kinds will not address directly a crucial factor affecting the readability of Bills. That factor is the unique nature of legislation. Unlike other forms of writing, a Bill is not there to inform, to explain, to entertain or to perform any of the other usual functions of literature. A Bill's sole reason for existence is to change the law. The resulting Act is the law.

  6. A consequence of this unique function is that a Bill cannot set about communicating with the reader in the same way that other forms of writing do. It cannot use the same range of tools. In particular, it cannot repeat important points simply to emphasise their importance or safely explain itself by restating a proposition in different words. To do so would risk creating doubts and ambiguities that would fuel litigation. As a result, legislation speaks in a monotone and its language is compressed. It is less easy for readers to get their bearings and to assimilate quickly what they are being told than it would be if conventional methods of helping the reader were freely available to the drafter.

  7. This difficulty is compounded if drafting and lay-out are poor. But even the best drafting and best lay-out cannot eliminate it. It is therefore important to find other ways of helping the reader.

  8. The Committee may therefore like to consider how Members and subsequent readers of Bills and Acts could be helped by material which does not itself form part of the law, but is provided alongside the law.

  9. Examples of this kind of help already exist. The explanatory memorandum on the front of a Government Bill is one. Notes on Clauses are another, and these are increasingly being made available to Members and sometimes to a wider audience. Again, the Law Commission, when reporting on a law reform project, habitually publishes a draft Bill with notes explaining its provisions. "Explanatory Notes Finance Bill 1997" published by HM Treasury in January illustrates a further approach.

  10. The Committee may like to consider whether any of these examples, or variants of them, could be used more widely and consistently; and whether there are other ways of providing help to the reader. Both conventional and electronic means of doing the job are likely to be within the inquiry.

23 June 1997