As a landlord and tenant solicitor, part of my life’s work has been ‘translating’ legal rules so they can be properly understood by non-lawyers.
This is important. Ignorance of the law can not (in the vast majority of cases) be a defence to rule-breaking.
But how can you prevent inadvertent rule-breaking if legislation is confusing and unintelligible?
For example – the Welsh housing legislation
I spent a large part of 2021 and 2022 studying the Renting Homes (Wales) Act 2016 before its implementation in December 2022. Even for me, accustomed to reading legislation, it was not an easy task.
It was not so much the actual language that was the problem but the excessive cross-referencing.
I have three monitors for my work computer, but I really needed about six to be able to follow the legislation properly!
The unfair contract terms rules
We have since 1994 had legislation to compel draftsmen drafting consumer contracts to use ‘plain English’.
Surely we should have something similar for our legislation? Arguably more important than contracts as it applies to all of us.
I suspect much legislation would be deemed unenforceable under the plain English rules, now part of the Consumer Rights Act 2015.
I discussed this previously on this blog in 2006 and in 2010.
Government guidance
In recent years new legislation has come with helpful government guidance, which explains the legislation and how it is intended to be used.
However, this guidance, although it has some legal force, is not necessarily binding on Judges. If they consider that the guidance is wrong, this will not stop them from making a contrary decision.
Which will justifiably annoy those who have followed its advice!
Would it not be better to make our legislation clearer in the first place?
Making legislation clearer
I appreciate that this is not an easy matter.
Legislation needs to be consistent – which is why we have all that cross referencing
It also needs to be couched in language which makes its intention clear – and often this is considered easier if wording is used which has been approved by Judges in previous cases.
However, this is writing legislation for lawyers rather than for ordinary people.
Then there is the fact that our language is exceptionally rich, with many words having multiple meanings—one of the basis of our humour. This means it is a tough ask to draft a sentence that will only have one meaning in all circumstances.
But all this notwithstanding, surely it must be possible to create legislation which is clear, consistent and comprehensible to non lawyers of average intelligence?
Some suggestions
- Definitions are important, but maybe they should be confined to just one part of the act so all cross-referencing will go to the same palace. This is often done but not always.
- Cross-referencing should be avoided if at all possible and only used if absolutely necessary
- Simple language alone should be used. With short sentences. A practice, incidentally, of the late Lord Denning, one of our great legal writers.
- There should be legal notes drafted for the lawyers making it clear how the legislation is intended to be interpreted, which should also have statutory force.
- Legislation should be stress tested by panels drawn from the public, who should be asked to comment on the draft legislation.
- Maybe they could answer a multiple-choice questionnaire with different interpretations of the wording to see how many choose the correct answer.
- Finally – most legislation is followed by secondary ‘statutory instruments’ which explain in more detail how the ‘top level’ law is intended to work. However it is not always easy to find them. Can the government’s legislation site provide, alongside the main legislation, a list of all the statutory instruments which relate to it. This will make it much easier for people to find the details that they need.
Why this matters
This plea may seen less relevant to many, given all the difficult problems this new Labour government have before them.
However many of these problems are to be resolved by legislation. Legislation, which is clear beyond doubt to all who read it, will be much more effective than legislation which is hard to understand.
Difficult legislation:
- May need a serious of challenges through the courts before it can be properly understood (which could take many years), and
- Like the tenancy deposit rules brought in with the Housing Act 2004, may require further amendments if court decisions go against government intentions.
Something I am sure this government will want to avoid.
Clarity in legislation – a human right?
This new Labour government is a government for ordinary people. People who, in most cases, can’t afford lawyers to explain the law to them.
Surely it is only right that our legislation, which is binding on us all and which we are all expected to know and abide by, should be clear beyond doubt?
The post Message to Government – Legislation needs to be clear and understandable by ordinary people appeared first on The Landlord Law Blog.