P.D.G. Hayter Esq
Clerk Assistant
House of Lords
London SW1A 0PW
29th May, 1998
Dear Mr Hayter,
I have been asked to reply on behalf of the Bar Council to your request for views on the format of legislation. I must emphasise that the views I express are my own and not necessarily those of the whole of the Bar Council.
Your Working Group is concerned with the format and layout of Bills and Acts, or rather the original printed versions of those documents. It can be said that the layout of these documents does not matter, since very few people now use the Queen's Printers versions of Bills and Acts: sales of, for example, the Finance (No 2) Bill 1998 must have been significantly less than they would have been if it had not been published on the Internet.
Further, individual publishers tend to format statutory material in their own house styles rather than in the format used by the Queen's Printer. For example, the version of Section 77 of the Income & Corporation Taxes Act 1988 which appears in Butterworth's Orange Tax Handbook differs from the version attached to your Paper in that marginal notes appears after the section number in the place of the emdash--
(1) Subject to subsection (5) below, in computing the profits or gains to be charged under Case I or II of Schedule D there may be deducted the incidental costs ...
| 77.--(1) Subject to subsection (5) below, in computing the profits or gains to be charged under Case I or II of Schedule D there may be deducted the incidental costs ... | Incidental cost of obtaining loan finance. |
Indeed I believe that even the version printed by the Queen's Printer and published by the Incorporated Council of Law Reporting differs in some respects from the official Queen's Printer's edition.
However, it was pointed out in Chapter 3 of Tax Law Rewrite -- The Way Forward that--
4. Other publishers, including HMSO on behalf of the Inland Revenue, will continue to display the text of legislation in the way they think best, but we would hope that if we are successful in our aim, the rewritten legislation presented in a new typography will provide the standard for others to follow.
The Tax Law Rewrite Project has set out in Technical Discussion Documents proposals for the formatting of taxing statutes. The most obvious difference (apart from textual changes) between the new version and the original version is that the former uses "computer numbering" rather than the traditional form of numbering of sections, the numbers in question being the number of the Part of the Act, the number of the Chapter of that Part and the number of each individual Section in that Chapter. It is proposed that each Chapter should start with a table of Sections and that the Sections themselves should be in roughly the following form --
It deals with trading losses from the point of view of a single company; Chapter 12.2 deals with group and consortium relief.
Some people like this form of numbering, others do not. I myself much prefer the traditional form of numbering, mainly for aesthetic reasons but also because I feel that it would be easier to refer in Court to "Section~393, subsection (1)" rather than to "Section 12.1.2, paragraph 2)". Of the various alternatives annexed to your Paper the variant of the Northern Ireland (Emergency Provisions) Act 1998 is in my view by far the best looking.
The other proposed alterations are set out on the second page of your Paper. The first two of them are comparatively minor, relating to the size of the typeface and linespacing and the use of ragged right margins.
It cannot be denied that many documents are produced using larger fonts than used to be the case and that often full justification is not used. I believe that this is the result of the vast increase in the use of laser printers and wordprocessing rather than of any inherent merit in the change. Most laser printers print at a far lower resolution than a typesetting machine and as a result documents printed on them looks better if a larger font is used. Further, many word processors are not capable of good justification and a ragged right setting looks better.
A Statute will be printed on a typesetting machine using software used which is capable of proper justification. Properly typeset justified text looks immeasurably nicer than text which is printed with ragged right margins. Annex 2 to \bo Tax Law Rewrite---The Way Forward\ok (Extracts from earlier redrafts of Tax Legislation) contains some examples in a "before" and "after" form, the latter using ragged right setting. Two of these relate to roll-over relief for capital gains tax. To my eyes (and ignoring the textual changes) the "before" version looks much better than the "after" version.
Another small change relates to indentation. The new versions use less indentation, mainly because of the way in which the text has been rewritten and the different numbering system used.
The remaining alterations are less cosmetic than those mentioned above. They are in the main aids to navigation through the text and I feel that the Working Group needs to give them very careful consideration. If any new layout is to be adopted by other publishers, commercial or otherwise, then care must be taken to ensure that the layout will be suitable for the sort of publications that those publishers will be producing.
Statutes and subsidiary legislation are prepared in SGML. This contains markup which a typesetting program can convert into the appropriate layout for the printed version or another program can convert into, for example, HTML for display on the internet. A more complicated conversion takes place with the Statute Law Database which will, when complete, enable a user to see what the law was on any particular date and will, as I understand it, contain footnotes linking to other parts of the legislation and statutory instruments.
The SLD will, when complete, be the primary source of legislation for most people. The Northern Ireland (Emergency Provisions) Act 1988 attached to your Paper shows just how useless a Queen's Printer's version of an Act can be. Section 8 (the short title) is the only Section which can be understood on its own; every other Section amends some provision of another Act. It is, of course, also very dangerous to read those other Acts without having access to (or for that matter knowing about) this Act. If the format of the SLD is to mirror that of the Queen's Printer's versions of the statutes then the latter should take into account features that may be present in the SLD.
The Australasian Legal Information Institute has on its Web site much of the legislation of Australia. The software which displays an Act will cause words and phrases which are defined in the legislation to appear as links -- see, for example, Section 6 of the Decimal Currency Act 1965.
The SLD will presumably, when complete, contain similar links which will appear highlighted in the text. If the statutes held in the SLD are to look similar to the printed versions then it would be appropriate for the defined words and phrases to be highlighted in the latter.
Although it is right that the SLD should have footnotes (or notes at the end of each section), the question whether Acts should have such notes is much more difficult. For if it is appropriate to include a note giving details of where a definition of a particular phrase can be found, would it not be equally appropriate to refer to an authority which explains what such phrase means?
To take an example, the Capital Transfer Tax legislation introduced in 1975 used the phrase "interest in possession" but contained no formal definition of it. In 1981 the House of Lords explained what it meant in Pearson v IRC [1981 AC 753 and I think that amending legislation passed after the date of that decision has again used the expression without defining it. Should such legislation contain a footnote referring to the case? If the answer is "yes", then the next question is where do you stop? If it is "no", then the question is whether it can truly be said that the legislation is accessible to everyone.
Headers and footers are other aids to navigation and the more information that can be given in them without making the printed page too cluttered the better. In addition to the Part and Chapter numbers, I would like to see the headers give the number of the first Section on the page (in the same way that the header to a page in a dictionary will include the first word to be defined on the page). It is often the case that sections, and in particular definition sections, continue for more than one page --for an example taken at random see Section 38 of the Drug Trafficking Offences Act 1986 which, in the Law Reports version, starts at page 489 and ends on page 493 -- or start at the bottom of a page. It would make it much easier to find a page quickly if the section number appeared in the header. Such a feature could be reproduced easily in an electronic version of the Act.
On the second page of your paper you ask for a number of matters to be borne in mind --
Legislation is formal. Although it is plainly right for it to be written in language which so far as possible is easy to understand, it should be published in a format which is formal and which shows that it is the law and not just an explanatory memorandum.
I do not think that questions of word-processing arise in this context. All that the draftsman needs to do is to prepare the text and to mark it up with some form of code which shows where a section begins and ends and so on. Since every statute will be in a standard format, the production of the typeset version will be performed by a computer program which will read the marked-up text and convert it into that format. To some extent the same is true with electronic publishing: a Paper produced by the Lord Chancellor's Department on the subject of the SLD points out that the prepartion of the text and the conversion of that text into HTML are separate operations---
[The SLD Enquiry subsystem] is effectively a stand-alone system which uses a copy of the data from the Editorial sub system to build a HTML database. This database can be viewed over communication links using commercially available World Wide Web browsers \dots
The Northern Ireland (Emergency Provisions) Act 1998 is obviously an extreme example of an amending Act. Although probably not within the remit of your Working Group it appears to me that Parliament should consider adopting the procedure which is, I understand, used in Australia where Acts which are amended are republished in their amended form.
The cost of designing a new format and of writing the appropriate software is likely to be broadly the same whatever format is chosen. A format which prints fewer words on the page will mean that Acts will be physically larger and accordingly cost more to produce. I can see no advantage in this.
Such notes may make a difference to the type of footnotes to be included in an Act (or the decision whether there should be any footnotes). But it is hard to comment on this without knowing exactly what form such notes will take.
Yours sincerely