By Sean Coughlan
BBC News Magazine
Legal language can be baffling
Even MPs struggle to decipher the laws of the land. Why doesn't legislation make much sense?
The "application cy-pres of gifts by donors unknown or disclaiming" - is it part of a crossword puzzle? The end of a medieval hymn? The dodgily-translated small print from something bought off a market stall?
No, it's on the way to becoming the law of the land, because it's a phrase from the current Charities Bill making its way through Parliament.
But the bizarre situation where proposed legislation is written in language incomprehensible to most people - let alone the ministers and MPs who vote on it - is about to end.
The Constitutional Affairs Minister, Harriet Harman, has asked for the next Bill to be published to have an accompanying plain English commentary.
How can you have an informed debate when no one knows what's really being proposed?
Long time coming
"Bills need to be understood by the people who will be affected by them - but that's not possible when they're often unintelligible," says a spokesperson in her department.
CHARITIES BILL - SAY WHAT?
Application cy-pres by reference to current circumstances
1) Section 13 of the 1993 Act (occasions for applying property cy-pres) is amended as follows
2) In sub-section (1) (c), and (e) (iii), for "the spirit of the gift" substitute "the appropriate considerations"
3) After subsection (1) insert -
"(1A) In subsection (1) above "the appropriate considerations" means -
a) (on the one hand) the spirit of the gift concerned, and
b) (on the other) the social and economic circumstances prevailing at the time of the proposed alteration of the original purposes"
The Coroner Reform Draft Bill will still be written in a legal language, as it's going to be interpreted by the courts, but with simultaneous translation of what it all means.
And any efforts to encourage more people to vote and participate in politics are going to be stifled if people can't even understand what their MPs are discussing, says the Constitutional Affairs spokesperson.
This won't be a one-off, as there are plans for more legislation to have an accompanying translation - a move the Plain English Campaign has been advocating for years.
It's not just that the language is baffling. Published Bills often cross-refer to other documents, such as existing legislation, without giving the reader any indication of what this means. It's like hearing only one side of a telephone conversation and having to guess what's being discussed.
Ben Beer, spokesperson for the Plain English Campaign, says that the incomprehensibility of published Bills means that "people have to get their opinions from how it's reported - because they can't decipher the Bills for themselves.
"They're very exclusively written - it's difficult to comment on legislation when you can't understand it."
The campaign's founder, Chrissie Maher, says: "We have been banging at the doors of Parliament for decades, trying to convince ministers to make their legislation more accessible. I hope that this historic step marks the start of a renewed commitment to plain English and an end to indecipherable documents."
Can ignorance of the law being no defence be overturned under Art 5.2 of the Human Rights Convention, "Everyone who is arrested shall be informed promptly, in a language which he understands, of the reasons for his arrest and the charge against him." and further, Art 6.3(e): "Everyone charged with a criminal offence has the following minimum rights ... to have the free assistance of an interpreter if he cannot understand or speak the language used in court."
How many legally-qualified Mediaeval Franglais interpreters are there?
My parents worked for the civil service and both tried to get policy documents straightened out by the Plain English Campaign but they were always thrown back by the department lawyers for not being convoluted enough. I suppose if your entire profession depends on the general public not being able to understand a word you say, you probably are going to get a bit defensive about it.
Why do laws have to written in a way that makes them hard to understand? And who will be responsible for ensuring that the commentary is an acurate reflection of the proposed law? Doesn't seem like that big an improvement to me. The real problem is that far too many laws are being passed, parliament should be passing fewer but better considered laws.
Robert, Zurich, Switzerland
Hmm. Let's see if I have this right. Laws are drafted by lawyers. People/corporations are then judged against the written law and the appropriate case law (and most law in England is actually case law, not statute law). This judgement happening in courts presided over by judges (ex lawyers) and 'fought' by lawyers. The judge decides what the law means (or defers to an earlier clarification by a higher court). Sometimes his/her judgement is checked in a higher court (court of appeal) or in the highest court(House of Lords). In all cases, lawyers and ex lawyers are the only people involved. Someone more cynical than I could be forgiven for concluding that what we have is a job creation scheme for lawyers.
Chris Millar, Farnborough
I was hoping there would be an explanation of why they aren't written more plainly in the first place. The only justification I can think of is that the confusing legalese is required to be precise, but it never seems very precise when it comes to trying to apply the law.
Add your comments on this story, using the form below.
The BBC may edit your comments and not all emails will be published. Your comments may be published on any BBC media worldwide.