Some notes from the first gathering of Cabinet Office’s Good Law working group – scoping the challenges.
Some of you will be aware of the Government’s new “Good Law” initiative – see the webpage here. Since its launch in April that I attended with Puffles, I was invited to join a large high-level working group to scope the challenges. By ‘high’ I don’t mean in terms of management grades, but rather that we’re not into the complex details of the problems that we’ll inevitably face. We had our first gathering on 16 September, divided into four groups: Content, style & language, architecture and finally publication. Given my background and interests, I was in the publication group. Further information on what the working group is doing can be found via Cabinet office at the foot of this webpage.
The purpose of this blogpost
As well as collating the views of the publication group, we also wanted to get some input from other interested parties. I’m saving my own observations for a separate blogpost to reduce the inevitable risk of me writing my own views and saying that they are those of the group. As I mentioned at the meeting, if anyone involved in the Good Law programme would like a guest blogpost to air their views, please let me know. For those of you not currently part of the programme, feel free to get involved – whether posting comments in response to this blogpost, commenting on the hashtag #GoodLaw or contacting Cabinet Office directly via the links mentioned earlier.
Before I go further, let’s recap the aims of the Good Law Programme
“The Office of the Parliamentary Counsel (OPC) would like the user to experience good law – law that is:
The themes that emerged
Apologies for the quality of the photograph – I was standing on a chair when taking it!
Listening to the feedback from all of the groups, there was inevitably a great deal of overlap. For example language and style will inevitably impact on publication.
Where does central government’s obligations start and end?
This is just as much a policy question as it is a publication question – and one dealt with by one of the other groups. Laws, guidance and rules are similar but not the same. Think school uniforms. Do you want central government tabling legislation in Parliament on the detail of school uniforms? Or is it better to have the law saying it’s up to schools to decide, government guidance perhaps advising schools to consider affordability when drawing up their rules, and leaving schools to decide on the detail themselves? Worth considering given what’s been in the news recently.
Simplified numbering and formats – adopting some basic principles
Let’s take a piece of legislation that several readers of this blog will be familiar with: The Freedom of Information Act 2000. I’ve linked straight to the first section of the first part of the Act. The numbering conventions could easily be simplified. Let’s take the basic right – the right to know whether information requested is held by the public body, and if so to have that information communicated. The reference to that right when spoken aloud reads as “Part 1 section 1 sub-sections 1a and 1b” (or words to that effect). Wouldn’t it be easier to have a numbering convention such as 1.1.1 – 1.1.2 or something similar?
Also, does the law have to be in a free text format? Referring back to OPC’s aims earlier on, there will inevitably be occasions where for purposes of clarity, alternative means are more suitable. A table for example. Are there others you can think of?
Do I want the original statute or the law as most recently amended?
When legislation is passed through Parliament, it inevitably contains lots of clauses that amend previous pieces of legislation. The Piracy Act 1837 for many years carried the death penalty until Section 36 of the Crime and Disorder Act 1998 formally changed that. But rather than having references to amendments after amendments, would it not be better to have the primary documents saying ‘This is the law as it currently stands, incorporating all of the amendments’? Thus replacing entire sections in one go rather than having lots of linked references all over the place? Worth considering given that people today still get convicted for committing very specific offences criminalised over 100 years ago. Perhaps it depends on the user…
Who are the users?
This perhaps was one of the things I wanted to see some data behind. Hence suggesting at the meeting a need to disaggregate both the audiences and the contexts in which those audiences access and use law. I’ve seen a limited but very interesting example of such an exercise – I’m just awaiting permission to see if I can link it to this blogpost.
In the meantime, to illustrate my point, some people need to access the law when out and about in the community – such as trading standards officers. That’s just one example of people far away from Westminster needing to have the law accessible to them in a mobile context. People who work in the Health and Safety Executive, or for the Environment Agency. You then have people who work in those communities that perhaps cannot access commercial professional legal advice. Or people who need instant access to the most up-to-date statute book because they work for a high profile commercial legal firm. What about campaigners or researchers? By referring to the law – the Freedom of Information Act again, I was able to force the Home Office to concede that it had not met its duties under the Act on three occasions. (See the final document of the five at the end of here).
Making the law easier for lawyers to understand too?
I was surprised at the extent to which this might be a problem, assuming that the core principles of legal training should be enough to allow legal professionals of whichever specialism to provide a reasonable opinion. But such is the growing complexity of law – especially in this globalised social media age of ours. Perhaps it’s worth considering asking one legal specialist (e.g. planning law) in one area to comment on another legal specialism (e.g. libel law) is like asking an optician to comment on neurosurgery. Alternatively, we might consider that law is too important to become compartmentalised into specialist silos. The challenge of information overload – the sheer volume of laws and legal information legal professionals have to consider, was also raised. To what extent do these burdens conflict with the aims as set out by the OPC at the top of this blogpost.
Primary and secondary legislation all in one place
I first found out about the difference between primary and secondary legislation during my university days – and have pondered about parliamentary scrutiny issues ever since. Taking the controversial topic of university tuition fees, Section 26 of the Higher Education Act 2004 (see here) gives powers to the Secretary of State to set tuition fees. In 2010, under secondary legislation, fees of up to £9,000 were brought in. (See here).
The reason why having this information in one place might be useful is that you see both the enabling power in the Act of Parliament, and the details of any secondary legislation that has been approved by Parliament subsequently. The challenge is what to do with primary legislation that has many of pieces of secondary legislation stemming from it – such as primary legislation relating to European Union treaties.
You might say that in an ideal world, if the law is clear enough then few explanatory notes should be needed. Where should explanatory notes sit within a publication framework?
Hyperlinks and references
One of the group said that the way the UK does legislation was made for the social media age with all the hyperlinks and references. This is all well and good if you can access them, but it still leaves you with the challenge of piecing potentially disparate pieces of legislation together. Does this raise accessibility issues? It certainly does if you cannot access the internet – something that is an issue not just for elderly people as reported in the news recently (see here), but also people on low incomes and/or in rural areas.
Once the method of publication has been agreed, then what? What are the best methods of publicity? Is this something that requires a high impact launch, or is this something that requires a more nuanced approach to get Good Law built into the systems and processes of institutions. For example should Good Law be part of citizenship education? If so, how? Which are the groups, networks and institutions that have an interest and influence in this?
Can we have a feedback button please?
This was one of the best responses to a point made about feedback loops. However splendid your publication tool or method, we’re in a world where people want to engage in a meaningful conversation. We have the social media tools that allow us to do this. Gov.UK websites now have a standard ‘Is there anything wrong with this webpage?’ links at the foot of its web pages. Should we have something similar with Good Law? If so, what then happens to the feedback that is given?
Such feedback is likely to fall into two main categories:
- The user has issues with the language and application of the law concerned
- The user has issues with the policy that the law is implementing
For the first point, it might be that the way a clause has been drafted has unintended consequences, or perhaps does not achieve the desired effect that an improved clause might have. What direction does that feedback go to? For the second point, that is a policy and politics issue. Think the privatisation or nationalisation of a key industry or firm. What structures and processes are needed to take those queries away from those dealing with legal queries, so as to point them to policy teams in Whitehall?
Food for thought.