The law is complex, but the unnecessary layer of complexity that exists in most legal drafting can and should be removed. This would facilitate access to justice – a fundamental human right.
So, the law (legislation and judgments), contracts and legal advice should be as clear as possible to all readers – not just lawyers.
Even lawyers do not find the law clear!
In his report, “When Laws Become Too Complex”, Mr Heaton says “Unexpectedly, even barristers, judges and academics may find legislation unclear and, occasionally, quite problematic“.
Richard Heaton is First Parliamentary Counsel and Permanent Secretary of the Cabinet Office. In 2012, he commissioned a review of the causes of complexity in legislation. The resulting report, published in March 2013, is called “When Laws Become Too Complex”. In the Foreward, Mr Heaton states “The digital age has made it easier for people to find the law of the land, but once they have found it, they may be baffled“.
In April 2013, the UK’s Office of Parliamentary Counsel launched a “Good law” initiative: https://www.gov.uk/good-law. Mr Heaton refers to this in his report’s conclusion: “We are asking our partners and colleagues to agree that statutory law should be necessary, effective, clear, accessible and coherent. As drafters, we play an important part in reaching that goal. We are always looking for better ways to write laws, and we would like to see more feedback from readers and users on what we do”.
Much is said about clear writing, without showing how to ahieve it. Clear legal writing is not just about changing a few complex words and inserting bullet points. It requires understanding the legal content and putting that into an order and form that the reader can understand more easily.
In 2010, President Obama signed into law the Plain Writing Act. Its purpose is “to improve the effectiveness and accountability of Federal agencies to the public by promoting clear Government communication that the public can understand and use.”
What are lawyers in the UK doing about improving access to justice by making the legal documents that they produce clear?