The Coroner Reform Bill is the first to be translated into Laymen’s language – but lawyers are divided on whether plain English bills are the way forward. Grania Langdon-Down reports

While the government is patting itself on the back for producing this month the first plain English version of a bill to run alongside the traditional format, the reaction among lawyers to the concept is mixed.


One solicitor who will not be giving a round of applause for the precedent set by the new Coroner Reform Bill is Heather Gething, head of tax at City law firm Herbert Smith. While the addition of plain English has driven the Coroner Reform Bill to 128 pages, that is as nothing compared to the government’s attempts to make tax legislation more readable, she says – with one new Act taking 533 pages to set out the taxation of income and pensions.


‘People complain about jargon but what they mean is technical language, which has a very precise meaning which is acknowledged and known. Words like 'emoluments', which originally meant fees paid to a miller and came to mean fees paid for services, have gone from more recent, “simplified” tax legislation. When you replace legal terminology, it can make for very long sentences.’


The Parliamentary draftsmen who worked on the Coroner Reform Bill were initially reluctant to try to decipher their work, they confide to the Gazette, concerned that an accurate clause-by-clause translation would be impossible. It took them ten days to translate the 81 clauses and ten schedules of the Bill, spelling out all the relevant sections of previous legislation to provide a complete picture of what is changing for the first-time reader, double and cross-checking all the details. According to one, translating the part on coroners' responsibility for inquiring into treasure finds was one of the trickiest sections. But in the end, the task was ‘challenging but manageable’.


So did they do a good job? Dave Smith, spokesman for the Plain English Campaign, says: ‘The plain English version is a significant step forward. However, having read it, while it is easier to understand, it could have been done better. We would also have preferred just one bill, which is clear for everyone. But it has planted a seed, which we hope will grow bigger.’


Mr Smith says that, despite improvements since the Woolf reforms, lawyers still top the campaign’s league table of complaints, in a close-run competition with those in the financial sector, particularly pensions. ‘With lawyers, I think people feel frustrated because they have to pay a lot of money to have something translated, which, by rights, they should be able to understand because it affects them.


‘One of our mantras is – when you write something, write to inform, not to impress. Laws are written on our behalf and I don’t see the point if I can’t sit down and read them.’


Ian Kelcey, chairman of the Criminal Law Solicitors Association, agrees. ‘Why do we need a legalese version? Every subject is supposed to be aware of the law and it is not a defence to say you are ignorant of the law. Doesn’t the government, therefore, have a duty to make the law understandable?


‘Anyone looking at the criminal justice acts – particularly some of the sentencing legislation – wouldn’t have a hope in hell of understanding them. It is no wonder we have had the recent example of the media and politicians getting hot under the collar about paedophiles only getting five years’ imprisonment, when they don’t understand what is written in the Crime (Sentences) Act 1997.’


Mr Kelcey says the complexity of drafting can lead to hours spent in the Court of Appeal deciding on the construction of the language. ‘In R v Bradley [2005] EWCA Crim 20, the Court of Appeal was tied up for two days looking at the issue of bad character applications and whether or not the legislation that introduced them was retrospective. All that was needed was for the Act to have been properly drafted in the first place.


‘Sometimes you can’t get away from jargon but, in the main, I think you can and should. Too often there is a desire to hang on to the old terms because they have always been there. There is also a tendency, as with doctors and other professionals, to wrap yourselves in mystique, though less so with criminal lawyers as they are more used to dealing with the mere mortal in the street.’


Louise Restell, project manager for consumer group Which?, is leading its campaign for legal services reform. Feedback from consumers is that legal jargon makes them feel disempowered and patronised, she says.


‘We are working on the Legal Services Bill and, not being lawyers, it is very difficult to pick up all the nuances. A lot of consumers who have had bad experiences with lawyers want to read it to see what the government is proposing, but it is not clearly written.’


She adds that while producing bills in plain English will not necessarily lead the public to start packing the latest statute along with their Dan Brown novels this summer, campaign groups interested in a particular area of the law will find the development very useful.


But if domestic legislation is difficult, spare a thought for those dealing with European Directives. Jonathan Goldsmith, secretary-general of the Council of Bars and Law Societies of the EU, says there is a whole raft of Euro-English words to get to grips with, such as ‘double deontology’, the anglicised version of a French word meaning that a lawyer is subject to the ethics rules of two countries.


‘Shorthand terms to describe complex notions are useful, but there is a whole terminology which only people within a small clique understand,’ Mr Goldsmith says, adding that while the English joke about mistakes or mistranslations, the French are quick to complain. ‘We don’t have the equivalent of the Academie Francaise to protect the language.’


European documents are examined by lawyer linguists, but problems still remain, he says. ‘One example where language can cloud rather than clarify is in the controversial Services Directive. The Parliament passed an English amendment, which said lawyers are excluded from the directive ‘to the extent that’ they are covered by their own sectoral directives. To any Anglophone, that means you are only partly excluded. It was translated into French to mean lawyers are excluded ‘because’ of their sectoral directives, which has the opposite meaning. After big arguments, we declared victory that “to the extent that” means lawyers are excluded altogether.’


Back on the domestic front, family law continues to provide a mixture of ancient and modern – decree nisi and decree absolute remain, while the document to end a marriage still reads ‘the petitioner therefore prays that…’ However, Jane Craig, a family partner with Manches in London, says that while the phrase 'ancillary relief' can cause confusion, much of the terminology involved is now more modern and user-friendly, such as ‘first appointments’ for the initial meeting with the judge.


That idea has not taken off north of the border. In Scotland, lawyers still use such arcane terms as ‘pursuer’ and ‘defender’ in divorce cases. Scott Cochrane, a leading family lawyer and partner with Brodies in Edinburgh, says another term that causes confusion is ‘aliment’, maintenance paid to a wife before the divorce comes through. ‘Most clients mispronounce it as ailment. On the plus side, you just get a decree of divorce.’


Mr Cochrane anticipates that the Scottish Parliament will take up the idea of plain English bills. However, he says, rather than do a ‘text for dummies’ alongside the traditional format of the coroners’ bill, ‘I wish they had gone the whole hog and just printed a plain English version. Human rights principles include the fact that the law should be accessible to everyone.’


Grania Langdon-Down is a freelance journalist