Christopher Jenkins CB QC, First Parliamentary Counsel
(This article originally appeared in The New Law Journal of 28 May 1999)
Since the beginning of the 1998-99 Parliamentary session, there has been a change in the way in which Bills are presented. The explanatory memorandum which used to accompany them has been replaced by a much fuller document, 'explanatory notes'. Moreover, unlike the memorandum, the new notes are also being published alongside Acts. This paper summarises the background to these developments, which are designed to improve the accessibility of statutes.
Clarity must always be the aim of anyone who drafts legislation. If the meaning of a provision is not clear, people cannot be sure of complying with it until the courts have interpreted it following litigation. So in drafting Acts of Parliament 'it is not enough to attain to a degree of precision which a person reading in good faith can understand; but it is necessary to attain, if possible, to a degree of precision which a person reading in bad faith cannot misunderstand. It is all the better if he cannot pretend to misunderstand it.' 1
Clarity will, of course, be enhanced if legislation is kept simple. But legislation about a complex topic is bound to be complex. And even in simple areas the law sometimes has to be set out in considerable detail. As the Renton Report stated in 1975, '... the draftsman must never be forced to sacrifice certainty for simplicity, since the result may be to frustrate the legislative intention. An unfortunate subject may be driven to litigation because the meaning of an Act was obscure which could, by the use of a few extra words, have been made plain.' 2
There are reasons other than complexity why Acts of Parliament can be difficult to understand. One set of reasons relates to the conditions under which Acts are prepared. The time available for drafting is rarely enough to permit the constant examination and re-ordering of ideas and words which is necessary for maximum clarity. And many Acts are amended, either during their passage as Bills through Parliament or by later Acts, in a way which subverts their original structure.
Sometimes an opportunity arises to review the language of an Act and to restore to it a coherent structure. This is the aim of consolidation or codification work undertaken by the Law Commission and by those involved in the Inland Revenue's present Tax Law Rewrite project. But these are luxuries not routinely available.
There are other constraints which are not the result of political or Parliamentary pressures but which are inherent in the nature of legislation. The only task of legislation is to change the law, to be the law. Explanatory material, highly desirable though it may be, is not intended to have legal effect. It has no place in the legislation itself, and including it introduces a risk of changing the meaning.
This factor means that the drafter of legislation cannot generally make use of a number of techniques which are used in other forms of communication to make the message easier to grasp. For example, one of the quickest ways of demonstrating the intention behind a technical or mathematical proposition may be to give worked examples. Or, if a provision is difficult to understand because it is a small part of a larger legal or administrative picture, a short passage setting out some of the background to the provision can make its purpose readily intelligible. Again, mere repetition can be helpful: when presenting a complicated idea in everyday speech one often finds that simply saying it more than once in different ways helps people to understand it.
None of these techniques can ordinarily be attempted in legislation. They introduce into the text words which are not strictly required for changing the law, and are therefore unsafe. There will inevitably be real or apparent differences between a proposition and examples of its effect, or between phrases used in background explanation and in the operative provision, or between different statements of the same idea. These will cause people to misunderstand the law, or may at least supply material on which to base arguments in litigation. The courts will be urged that Parliament must have intended different things by using different words in different places. But any legislative meaning which the courts ascribe to 'extra' words will necessarily be wrong, since none at all was intended.
So where does this leave users of legislation? There is no doubt that they deserve help in reading legislation, because of the constraints under which legislation is drafted. The means of helping them can be made available and, from the beginning of the current Parliamentary session, they are being made available. As a result of a recommendation made by the House of Commons Select Committee on Modernisation, and adopted by both Houses, explanatory notes are being prepared for all government Bills.
The new notes replace both the previous (usually brief) Explanatory and Financial Memoranda published with Bills, and the notes on clauses which departments generally distributed to MPs and peers. They are published alongside Bills. They are prepared when the Bill is first introduced and are revised when it moves to the second House and again when it receives Royal Assent. They are available both in printed form and on the Internet.3
The notes do not form part of the Bill and do not claim to be authoritative. They are produced by the government department responsible for the Bill and do not receive Parliament's approval. This means that there is freedom to use techniques which cannot generally be used in Bills for the reasons I have given. The notes can explain the background to a measure; they can summarise its principal provisions; they can give worked examples; they can explain difficult concepts by setting them out in different ways; and they can set out the full wording of provisions that are being textually amended by the Bill. They will be short where a Bill is not particularly complicated or difficult to understand; but in other cases they will be more discursive and have already in more than one instance exceeded the length of the accompanying Bill.
Two aspects of the notes will be particularly important in ensuring that they are useful. First, they must be written in clear and simple English, using as few technical terms as possible (and then only with adequate explanation). Secondly, they must be neutral in political tone rather than argumentative: they are there to explain the effect of the enactment, not to justify it. They are not propaganda. They are not the law. They are simply aids to understanding.
The notes are still in their infancy, but initial reaction to those which have accompanied the first Bills introduced this Session has been encouraging. I hope they will continue to be found useful and that in time they will be successful in making the effect of new legislation easier to ascertain for a wider range of readers.
1. Practical Legislation 1902 (by Lord Thring, the first holder of the office of Parliamentary Counsel, quoting Stephen J).
2. The Preparation of Legislation 1975, Cmnd. 6053, para. 11.5.
3. Explanatory notes for both Bills and Acts are published by HMSO. The notes are also available on the Internet at http://www.parliament.uk for Bills and http://www.legislation.hmso.gov.uk for Acts.