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Law drafters shocked that readers find their work unclear

[17 June 2014] The drafters of UK law say they are flabbergasted after a research study found that people visiting the legislation website regard their handiwork as hard to understand.

Writing in The Loophole (May 2014, pages 25–49, published by the Commonwealth Association of Legislative Counsel), deputy parliamentary counsel Alison Bertlin said: ‘It would be difficult to overstate the profound sense of realisation with which drafters observing the user testing sessions came to recognise the difficulties that ordinary readers have in reading ordinary legislation.’

Bertlin said her office (the OPC) had used plain-language techniques for many years to make laws clearer than they used to be. The National Archives, which looks after the legislation website, funded the latest study. It comprised an online survey and face-to-face user testing, aiming to find out whether some kinds of drafting techniques and styles are better understood than others.

Bertlin reports the findings in great detail and her candid article is recommended reading for anyone interested in the clarity and quality of statute law. She says:

‘The dominant, and unexpected, finding was the striking level of difficulty that users of legislation have in making sense of it. This greatly outweighed any observations about how one drafting style compared with another. Readers seem to have very little grasp of how legislation is structured and organised. Their “mental model” of it is simply not very good. This was true not just for members of the public but for participants of all types, including some of the lawyers. The sessions certainly challenged a drafter’s assumptions about the audience for legislation.

‘For example–

• there was very little understanding of what it meant for a provision to have been enacted but not be in force, or of what the term “commencement” meant; [cont]

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