Update | Contract: can the Good Law initiative make the law more accessible

Richard Heaton is optimistic about ?the future of law: "your experience [of law] is about to get much better", he believes. He is the permanent secretary to the Cabinet Office and the First Parliamentary Counsel. In the latter role he is responsible for drafting statutes and delivering government business in parliament. Speaking at Tedx Houses of Parliament, a conference on the theme of democracy, he drew a parallel between the law as the story of our nation and as "our operating system". "But," he asked, "look what happens when you try to use it? When you want to check the law to see if you are complying? Then it is a misery. It is complicated, difficult to navigate, confusing and hard to understand. What virus has infected our operating system?"

One only has to look at the new Companies Act, enacted as recently as 2009 long after the concept of plain English and the importance of accessibility were widely accepted, for an example of what can go wrong. It was then the longest act in British parliamentary history with 1,300 sections, covering nearly 700 pages and containing 16 schedules - the list of contents alone was 59 pages long. More egregiously, it was not a total codification of the law.

Mr Heaton's central contention is that we are using insufficient tools to express complicated concepts. The only tools we use are words, sentences and paragraphs "which are added at the expense of readability". He estimates that there are about 50 million words on the statute book with around 100,000 words being added each month - the equivalent, he says, of adding the complete works of Shakespeare every six months. Full of sound and fury, signifying nothing?

"We are calibrating an operating ?system which in complexity, form and architecture is a million miles away from what it is usable to the average citizen", Heaton argues.

Simplicity and data

The solution is a long way off - but the tools of that solution are available. One starting point is the Good Law initiative, which was launched on 16 April this year. This aims to engage partners from a range of disciplines to use some simple rules to put law "at the service of people".

Simple is an understatement. The first rule is not to make it worse. The second is to make it better. The third rule is to treat law not just as language but as data - "to present it, manage it, manipulate it and make it available". The architects of the Good Law initiative want the draftsmen of law to take lessons from design and technology and move away from sequential time-stamped documents - to use hyperlinks, colours and symbols, to replace paragraphs with pictures, graphs and data, to illustrate, exemplify and demonstrate. Mr Heaton points out the irony that "law is only modern discipline that doesn't use symbols, sounds or pictures".

The rapid development of awareness of, popularity of and software for infographics can only help. Consider how Florence Nightingale used information in the Coxcomb chart to persuade Queen Victoria to improve conditions in military hospitals. Using stacked bar and pie charts she depicted the number and causes of deaths per month in the Crimea. Consider, the Pioneer plaques - the pair of gold-anodized aluminium plaques bearing pictorial messages to extraterrestrial life about the earth's location and inhabitants - carried on the Pioneer 10 and Pioneer 11 spacecraft.

Consider the London Tube Map. How useful and transparent than these three examples are the black and white verbiage ?of statutes? Mr Heaton's optimism is less futuristic - for now: "our operating system is in our hands". He argues that because over two million are accessing that "brilliant website" legislation.gov.uk and that "law is no longer imprisoned in law books, libraries and advocates' chambers", access by individuals to law means that citizens will innovate and put pressure on draftsmen to make that legislation better.

Already improving?

Can we see any signs of this? The Department of Business, Innovation and Skills published the Consumer Rights Bills on 12 June 2013. It shows signs of better, more naturalistic language and presentation. Each chapter is introduced by a question, for example in Chapter 2: "What goods are covered?". Supplementary questions separate the sections - so, for example, sections 8 to 25 of chapter 2 are now covered by the sub-question: "What statutory rights are there under a goods contract?" The section headings also contain more information as to what law can be found in that section. For example, section 8: Goods to be a satisfactory quality; section 17: no other requirement to treat term about quality or fitness as included".

Some of the questions preceding some of the parts of each chapter read like FAQs - as examples, "What remedies are there if statutory rights under a goods contract are not met?" and "Can a trader contract out ?of statutory rights and remedies under ?a goods contract?"

The text itself is presented in a plain, logical and encompassing style. Consider, for example, section 1 which is preceded with the heading "Principles of this Part". Section 1(1) reads: "This Part applies where a trader supplies or agrees to supply goods or provides or agrees to provide digital content or services to a consumer…"

Section 1(2) then reads: "It applies whether the contract is made in writing or spoken or partly made in writing and partly spoken or is implied from the conduct of ?the parties (but that does not affect any rule that requires writing in order for a contract to be made)."

Some of the definitions are presented in a different fashion from that we traditionally expect definitions. Say, for example, section 7(2) explains, rather patiently that: "A contract for a non-money transfer under which ownership of the goods is transferred from the trader to the consumer is referred to in this part as a 'transfer'". These are examples of admirable clarity and are characteristic of the entire bill. This is just an indication of what Good Law might be able to achieve.

The overriding principle is that the user (note, not the "reader") should experience law that is necessary, clear, coherent, effective and accessible. Having considered the many causes of complexity in legislation in a report which is worth reading (using?) - especially for its use of infogaphics ("When laws become too complex" published on 16 April 2013 at www.gov.uk/government/publications), the Good Law initiative asks draftsmen to focus on and answer a number of questions (see box).

The initiative is at the moment about greater openness about how laws are drafted, about alternatives to legislation, about improving explanatory materials, about making the user's experience better. Imagine how more effective and accessible would be, say, the unfair contract terms legislation were the laws to encompass the sorts of colourful logical flowcharts, graphs and infographics that we are used to seeing in text books, journals and online publications. Freed from their formulaic black and white, single font, sequential format (and colours and other visual aids cannot lawfully appear on the statute book currently), Acts and statutory instruments could ease the reader to the answer more quickly, more clearly and more effectively. If parliament permits itself to harness the power of web publishing, data management and intelligent software, new and better ways of preventing and arranging laws could enhance understanding, hugely reduce costs, avoid disputes and promote freedom and learning.

 

QUESTIONS FOR DRAFTSMEN Content – how much detail? Is this law necessary? Does it complicate or conflict with another law?  Language and style – do we know what the likely readership is?  Is the language easy to understand?  Architecture of the statute book – what should determine the hierarchy and structure of statute law? What should go into Acts and Regulations?  Publication – how will law appear to the online user? What can be done  to improve navigation? Should we draft law to be machine readable? Compare your reaction to the above paragraphs to your reaction to figure 1 (below). Which inspires greater engagement and understanding?

 

Long way to go

Change may be slow in coming though. There are no plans to review any existing legislation and therefore any effects will only be in relation to new legislation. The Law Commission, not the Office of the Parliamentary Counsel, generally has responsibility for keeping law under review and recommending reform. Its aims are to ensure that the law is "fair, modern, simple" and "as cost-effective as possible". Its aims are not to maximise accessibility or harness all that technology and design can bring.

I understand that there are some specific projects underway which are not on the public record yet - but there are no specific projects to change commercial contracts so far. But this may yet be in the offing.

In 1959, parliament enacted 1,163 pages of new laws. In 2009, it had managed to increase that figure to 2,247. It is believed that there are more than 30,000 changes to black letter law each year. The previous government allegedly created a new criminal offence for every day it was in power. In 2002 a European directive setting caps on pesticide residues in food had 1,167 words; the UK regulations implementing those caps goldplated them to 27,000 words. On average, the UK produces 2.6 pieces of black letter law for every Brussels directive - whereas Germany makes do with one. For all the optimism surrounding Good Law, for all its potential, there is a long way to go.