The #goodlaw launch: Making legislation more effective and accessible
On Tuesday 16 April the Institute for Government hosted a seminar in collaboration with the Cabinet Office and the Office of the Parliamentary Counsel to launch the Good Law initiative. The project explores how to improve legislation and make it more understandable.
The panel for the event was:
- Richard Heaton CB, First Parliamentary Counsel and Permanent Secretary of the Cabinet Office
- John Sheridan, Head of Legislation Services at the National Archives
- Martin Jones, Director of Law for Life
- The Rt Hon. Andrew Lansley CBE MP, Leader of the House of Commons
- Jill Rutter (Chair), Programme Director, Institute for Government.
Each panellist outlined some of the issues and challenges from their own experience of working with law.
Richard Heaton began by explaining how the Parliamentary Counsel had carried out a consultation to ask members of the public for their views on law. The feedback they received when people read samples of law demonstrated the problems with the status quo.
He outlined the most common complaints:
- Can’t understand it
- Can’t find it
- Too complicated
- Changes all the time
- There’s too much of it
- Have to go back and forth through law in order to understand it.
Although there is an argument that ‘that’s the way it is – life is complicated,’ these concerns are legitimate and do create a burden. Heaton said the frustration could dissuade businesses from taking on new staff as an example.
With 2 million people now accessing law online every month, it is worth seeking an improvement. There is a lot of information, but Heaton pointed out that there are other big piles of data in the world which people and institutions manage to organise.
He listed the aims of the Good Law initiative as to create law that is:
John Sheridan began by explaining how the internet has revolutionised who accesses law and how. Just as people are now more ready to check advice from their GP against medical advice available online, more people are consulting law directly.
Whereas 20 years ago people needed physical volumes to access law, people who type ‘data’ or ‘human’ into Google are now no more than two clicks away from a copy of the Data Protection Act or the Human Rights Act. Approximately 2 to 3 million unique visitors are accessing statutes through the National Archive every month.
A software developer by background, Sheridan argued that we are moving into a new era where law can be increasingly managed as data. The idea of ‘law as code’ provides us with new opportunities to interpret it and understand its impact on society, but it also raises questions. In particular, there is the issue of how computers process and interpret law themselves.
Richard Heaton then concluded their joint presentation by detailing four conversations that needed to be had about law and the challenges they would be laying down to departments:
1. Content: There is very little incentive to simplify statute and every incentive to complicate it. Departments need to consider if they need to legislate and if it is too complicated.
2. Language: There is a new model now of different types of ‘reader’ for law, as demonstrated by the 2,000 who took part in the Parliamentary Counsel’s listening exercise. Departments need to know their reader, who they are writing for, how accessible it is and what mechanisms are there for feedback.
3. Architecture: There is little logic to how law is organised. This raises the question of whether we should adopt a Napoleonic approach and create a new code for our law? This could be beneficial, but would be a never-ending task – re-writing the tax code took ten years alone.
4. Publication: Lawyers need to think more about the usability of law as data, how can it be packaged and personalised, and drafted to help digital archivists.
Heaton concluded by explaining how there were now ‘Good Law Champions’ in every government department, new web-based drafting tools being introduced and an emphasis on partnership, including talking and listening more to users.
He encouraged everyone to read the When laws become too complex report being published that day.
Martin Jones spoke about Law for Life’s work to help equip the public with the adequate knowledge, confidence and practical skills to deal with law related issues.
He argued there was a need for greater focus on prevention rather than cure – ‘a fence at the top of a cliff rather than an ambulance to pick people up at the bottom’ - in the law services provided to everyday citizens. This has been heightened by the cuts to legal aid.
He cited examples of workshops the charity have run with disadvantaged young people in Liverpool and East London which showed that many of the most vulnerable in society not only don’t know their rights, but don’t know that they are afforded any rights under the law at all.
Jones also stressed the need for information about the law that was effective and well presented, showing a brochure produced by the Citizens Advice Bureau for people who need to attend court as an example of good practice.
Andrew Lansley joined the discussion during the Q&A. He welcomed the project and praised the work of the Parliamentary Counsel before making three specific points.
First, that law which is overly complex and not as effective as it could be is not a new problem. He highlighted the ten-year rewrite of the tax code and the 4,000 new criminal offences brought in since the 1980’s.
Second, that the government were taking steps to address this: no gold plating of EU directives and use of programme bills to simplify the legislative process.
Third, that sometimes legislation is the only effective tool to deliver policy and when brought in ‘it has to do the job.’
In the wider discussion, points raised by the audience included:
- Is there a need for a ‘purpose clause’ in legislation? This is used with legislation in New Zealand and with EU Recitals, where a purpose clause sets out the impact the law intends to have. An audience member from the Parliamentary Counsel said that there had long been discussions in government about this and that the best argument against it was that it shouldn’t be needed as laws can be interpreted from the words themselves. A purpose clause requirement could potentially result in the purpose and text of an act not matching.
- ‘How much do policymakers really read this stuff?’ A lawyer from the Cabinet Office, said in her experience policymakers only wanted to know what the “yes/no answer” was when it came to the content of legalisation. Heaton said it was important to engage legislators as in his experience politicians ‘can be just as baffled (by law) as the rest of us.’
- How much can we expect lawmakers to create good law when parliamentary processes are so complicated? Lansley replied that 50% of House of Commons time was spent on lawmaking and that it was ‘a fallacy to expect bills to be introduced to Parliament in perfect form.’ He argued that parliamentarians distinguish between the party political stage of scrutiny and working to make a bill better. He admitted that this could lead to more layers of complexity however as lawmakers attempt to draft in safeguards against ‘everything that could go wrong’ with a bill. This developed into a point about bills being put before Parliament when they ‘weren’t ready’. Speaking from the chair, Jill Rutter said she had found this to be the case with finance bills in the past, with ‘half-formed’ legislation submitted with gaps and then being re-written by government amendments as it progressed. This was backed up by a House of Lords lawyer who said many bills were rewritten and passed too quickly. Despite this Lansley said that he would be resistant to a suggested ‘Legislative Standards Committee’ as it would create ‘new layers of process’ and too much of a ‘tick-box approach’ to legislation.
- The importance and evolution of drafting: Australia was cited as a legislature that produced laws that were very accessible to the ordinary reader. While there was agreement on the need for more simplicity, one attendee pointed out that ‘short sentences are good, but shorter sentences are not necessarily better.’ The role that computers will play in the ‘law as data’ age was also considered, including the reflection that ‘we are currently drafting laws with human beings (as readers) in mind.’
- The actual cost of legislation: One audience member raised the point that how too often lawmakers don’t consider how much the passing and implementation of legislation costs and that this should be more of a factor in the current economic climate. Heaton agreed and said he was keen to communicate that legislation was ‘not a free hit.’