At a conference on trends in legislative drafting organised at Dublin Castle by the Attorney-General on 6 October 2000, I was invited to present a paper on "A view from the Seanad". This is the text of that paper:

Perhaps I may usefully begin with a few ruminations about my role here at this conference. Because today is somewhat of a new experience for me: I am used to addressing groups of grocers, and indeed groups of legislators, but I don’t think I have ever been at a gathering before where I was the only person without a law degree!

And that unusual situation leads me to suggest a role for myself here today – as spokesperson for the ordinary person, the “customer” as it were for the laws the draftsmen write and on which we legislators deliberate.

I would like to begin by posing seriously the question “Whose law is it, anyway?”

It’s commonplace to associate the concept of democracy with the notion of a state that is ruled by laws, but I would like to suggest that simply having laws in place, and even abiding by the rules set down by those laws, is not in itself sufficient to make a State truly democratic.

After all, as the people who are trying to bring former President Suharto of Indonesia to trial are finding out to their cost, it is all too easy to turn the whims of a dictator into the law of the land.

Neither is it enough, I suggest, as a test of democracy that every citizen is treated equally before the law. That is indeed a central pillar of public acceptance of the law, and anything that raises doubts about the concept of equality before the law, as we have seen with the fall-out from the Sheedy case here in Ireland, creates quite fundamental worries as to the democratic legitimacy of the laws that rule us. But even given unquestioned performance on this issue, more still is required.

That more can be encapsulated in the concept of “access to the law”, and it is this that I want to relate to the question of how we frame and draft our laws. By access to the law I am not talking about access to the legal process – that’s important, too, and an increasingly relevant one in an era where legal costs keep sky-rocketing. But that again is another day’s work.

What I would like to focus on is access to the laws themselves.

I believe that, to put it at its most simple, it’s fundamentally incompatible with the notion of a democratic society to have a body of law that is largely incomprehensible to the vast majority of citizens.

A body of law which binds them and to which they must adhere, but is guarded by a high priesthood who clutch the holy writ tightly to their own bosoms and claim an exclusive right to interpret it.

Now let me rush in here at once to reassure you that I am neither naïve nor unrealistic.

I am not trying to do lawyers out of business, nor to deny their important and fully legitimate role in a democratic society. Nor am I trying to deny that a great deal of law must be highly technical in nature, nor that the process of law-making requires a degree of precision that is probably not called for in any other human endeavour.

I give you all that, but I pose again the question: “whose law is it, anyway?”

Is it the people’s law, or the law of the high priests?

Let me suggest how we might tell the difference between the two approaches.

If our law is to belong to the high priests, then we should find it couched in language that is deliberately obscure and technical, even when that it is not called for by the circumstances. If the high priests want to keep the law to themselves, they will make it difficult to get hold of in the first place, difficult to follow the structure of, and simply difficult to understand.

If our law is to belong to the people, on the other hand, then we should find it couched quite differently.

The people who write the laws would see as their challenge not simply to express the provisions of the law in terms of legal correctness, but to do so in a way that reached out as far as possible to their end-customers – the ordinary citizens.

In the truly democratic approach, the parliamentary draftsman should have, I suggest, two masters, two loyalties, two responsibilities: one to the legal process, and one to the people who will be governed by that legal process.

It is the view of this one person from the Seanad that the kind of laws we make today are much more laws for the high-priests than they are for the people. And I would like to see any changes in the practice of parliamentary drafting lean away from the priests and lean instead to the people.

Let me look at some specifics.

First, before we approach the issue of language at all, let’s consider what I might call the structure of legislation.

The high-priests’ approach could be summed up in the commandment “always amend; never consolidate”.

A huge proportion of bills that come before us in the Oireachtas are structured as amending legislation. It is as if the high-priests will do anything to avoid weaving a new rug, but insist of endlessly patching and repatching the old one.

This single strand of the high-priests’ approach is enough in itself to deny access to the law by the vast majority of ordinary people.

Let’s take it that a concerned citizen is interested in a new law that is proposed. He or she gets a copy of the Bill – only to find, typically, that it’s completely incomprehensible without reference to a whole clutch of previous Acts.

When I say completely incomprehensible I don’t exaggerate, because often the context of cross-referencing between the different Acts gives no clue as to what the referenced meaning is.

You can have a Bill with definitions like:

“In this Act, the term ‘reserved decision’ shall have the meaning it is given in Section 3 of the Such-and-such Act, 19- whatever”.

There’s no clue as to what meaning might be hidden in the reference; there’s no avoiding looking it up.

This isn’t the kind of reading that appeals to an ordinary person. This approach is the very essence of user-unfriendliness. It provides a very effective way of putting people off accessing the law.

I think we have to ask ourselves: was this the intention?

If we replace the high-priests with a people-centred approach, there are at least three ways I can think of that will improve this particular aspect of the problem.

The first very simple and low-tech approach is that each new Bill would incorporate an appendix which would carry the full text of each citation made in that Bill.

This would have the advantage of making a Bill a self-contained document in itself – once you had that in your hand you would have everything you need. You would still have to jump backwards and forwards to look up each reference, but it would be a great improvement on jumping backwards and forwards between several documents.

The second, more high-tech approach is something that is already being put in place, and that is having the Statute Book available in hypertext format, either on a CD-ROM or on the internet.

I regard making the Statute Book available digitally as a massive step forward in general accessibility, but it has a special value in the area of cross-referencing between Acts. Following a reference digitally can be faster and easier to do than wading through a stack of thick volumes.

There is also a third approach, which I call “repeal and renew”.

It entails the weaving of a new rug, rather than the repeated patching of an old one. And in considering this we uncover a fundamental difference between the legal mind and the ordinary lay citizen’s mind.

The legal mind will say “legislate only for what we are changing”, and in strictly logical terms they are quite right.

But the citizen’s mind says: “Let me see the big picture, the totality of what the changes will bring about.”

The difference between these two approaches creates a gap which is all too often unbridgeable.

Let me give an example from Europe.

As the European Union evolves, it has periodic inter-governmental conferences the aim of which is agree new rules for the way the Union operates. Each one results in a new Treaty, such as the Treaties of Maastricht and Amsterdam. In some countries, such as of course this one, any such new treaty has to be ratified by the people in a referendum.

With each successive Treaty the selling of the proposal to the people has become more difficult. One factor in this, which I would argue is not a negligible factor, is the incomprehensibility of the Treaties that approval is sought for.

Because when the concerned citizen opens the text of the Treaty of Maastricht, or Amsterdam, or, as we hope, of Nice in the months ahead – that citizen gets a shock. Massive and all as these treaties are, they are merely amendments to the earlier treaties, going right back to the Treaty of Rome itself. None of the treaties is complete and self-contained in itself.

And when one adds to this the legalese in which they are inevitably couched, the road to obscurantism is already half-travelled.

So if I were allowed to make only one appeal today to those who draft our laws and those who oversee the drafting, it is this: the democratic accessibility of new laws would be immeasurably enhanced by seeking, where possible, to create self-contained legislation rather than amending legislation.

Sometimes this will involve repealing and re-enacting provisions as part of the new measure, something I know goes against the legal grain. But I appeal to you to consider it, because by so doing you can reach out to the citizens, the customers for our laws.

Again, if we want to reach out to the people, we should make more use of consolidating legislation. I have been in the Seanad for over seven years, and the only Consolidation Bill that I can honestly remember is the consolidation of the Finance Acts. There is apparently an established practice of consolidating Finance Acts every decade or so.

I would say, first of all, we should consolidate more frequently – but more fundamentally, I would argue that we should extend the principle of consolidation to other areas, in the interest of creating greater accessibility.

Two examples come to mind.

In the past two decades, we have passed a whole raft of legislation relating to employment matters. It would be of great use to those dealing with the area, both employees and employers, if all the relevant legislation was consolidated in one place.

Equally, we created a raft of legislation piecemeal in the family law area. Proceeding step by step was probably the right thing to do for tactical reasons, but now the whole fabric of the structure is in place, surely the time has come to consolidate it.

So far I have been talking about the structure of our legislation. But when we come down to the nitty-gritty level of the language used, the problems relating to access are highlighted once again.

If you are reaching out to the people, you search for words that will communicate to the people.

If you a high priest clutching the sacred books to your bosom for dear life, then you will take refuge in words and phrases that the ordinary person may find it difficult or even impossible to understand.

Which have we got?

My impression is that parliamentary drafting too often uses terminology that relies on antiquated legalese, rather than on modern, everyday language that could be equally precise.

I am not looking to “dumb down” legislation, or to make dodgy law. What I am seeking to do is make it a central part of the parliamentary draftsman’s challenge to build a bridge between what is legally necessary and what will succeed in communicating to the ordinary concerned citizen.

I believe that bridge can be built, if the will is there to do it. And I think it is very worthwhile to make an effort to generate that will.

Of course, the problem is not just with terminology. Of equal importance is grammatical structure. Too often, Bills use constructions that are unnecessarily complex and tortuous, creating clauses whose meaning can be grasped only after careful study – and sometimes not even then.

This has the effect of adding to what some people regard as an overwhelming impression - that the draftsman seeks to represent the world of today in terms of a world that is past. Why should that be so? The purpose of legislation surely is to represent today’s world, and it should do it as far as possible in today’s terms.

I think in any case that if we look back at the legislation of a century ago, we will often be impressed by its directness, simplicity and clarity – even though we will occasionally be pulled up by the odd old-fashioned term.

Directness, simplicity and clarity – yes, and brevity too. Coming to more recent times, I have had recently had reason to read the Arts Acts of 1951 and 1973, because the Minister for the Arts is engaged in a review of legislation on the arts and has published a consultative document on the matter.

Reading the 1951 Act, I was struck by its brevity. The 1973 Act, “An Act to Amend and Extend” the 1951 Act, was much longer. And I venture to bet that the Act of 2001, which the Minister will no doubt bring forward, will be a huge monster of a thing compared to the original Act.

Obviously our lives are becoming all the time more complicated and more bound by technicalities. But I wonder whether that alone explains the increasing prolixity of legislation?

Another point:

Ministers have told me again and again of their frustration in drawing up the heads of a Bill which they are satisfied with, and which they find are subtly changed when the text of the Bill emerges. In the process, they have said to me, the essential point can at worst be missed – and at best obscured.

Small wonder that some of them come to look on the parliamentary draftsman’s office as a kind of Procrustean bed, where the real world of today is stretched or squeezed to fit into a strange, abstract format.

This brings me to some suggestions which I have for changing the actual drafting process of legislation. I believe that, if we are to make our laws truly democratic through making them accessible, then that accessibility should extend to laws as they are being made in the legislature, as well as when they are passed and on the Statute Book.

At the minimum this entails making it easier to follow the course of legislation through parliament. Following debates on new legislation has become much easier with the advent of the world wide web, but we are in this country behind in the way we use this resource. All parliamentary debates go on the web promptly, but they are not always accompanied by a matching availability of what is being discussed. Sometimes not even the text of a new Bill is available on the web, and what the public never gets are the amendments and the revised version of Bills that result from amendment.

In Britain they order things better, as far as following the process of legislation is concerned. Every Bill goes up on the net as soon as it is published, and more crucially so does every proposed amendment. In Britain it is possible for any member of the public to genuinely look over the shoulders of the legislators - not quite in real time but quickly enough to make access a reality.

Clearly, I believe that we in Ireland should fill that gap in accessibility. Ideally, in addition to publishing on the web the text of each Bill at the same time as it is printed, I would favour also hypertexting the references in the web version – and so provide a seamless bridge of cross-referencing between proposed legislation and what is already on the Statute Book.

But this, I believe, is only clearing the ground in regard to accessibility. I believe that we need to revise entirely the way we handle Bills in parliament, so that there is a public consultation on each measure in advance of the parliamentary draftsman getting to work at all.

The reason I believe this is necessary is because of the way control has slipped increasingly away from parliament over the past 15 years or so. This has been an unfortunate, and I think highly undesirable, side-effect of the social partnership process. These days too many Bills come to parliament already as “done deals”, cut and dried and honed as the result of a consultative process that happens mainly behind closed doors and is accountable to no-one.

It is in such an atmosphere that rumours of corruption and cronyism thrive, whatever their basis in fact. Certainly there is ample justification, I believe, for the growing concern about the role of lobbyists in this pre-parliamentary phase of legislating.

My answer is to bring the entire consultative process out into the open, where the public can see it and participate in it to whatever extent they wish. I have in the Seanad proposed that we reform parliament to include an open forum which would be the only acceptable place for anyone to make representations on legislation.

My reason for reverting to that proposal on this occasion is that I see this forum taking place prior to the parliamentary draftsman getting to work at all. But what I would envisage is that the forum be attended by the draftsmen. It would still, of course, be for the Government, after the consultation, to draw up its own proposals and make decisions on them in the form of Heads of Bills.

However, teasing out the issues underlying the legislation in an open forum attended by the draftsmen might have this effect: that when proposals for the eventual Bill came from the Government, the draftsmen would have such a grasp and an understanding of the real-world issues that the Procrustean bed problem would be much less likely to arise.

Whatever about that, let me finish by returning to my basic point: if we want to encourage particular trends in the way our legislation is formulated, I say we should realize we cannot have it both ways.

Our laws must be either for the high-priests, or they must be for the people.

To change the current practice, and make our laws the possession of the people, we must radically improve people’s access to the laws – both after they are made, and also during the process by which they get made.