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I attended, in 1996, a conference on the drafting of tax legislation. The deputy head
of the United Kingdom Revenue Board gave an address in which he described some
of the features of the tax rewrite project that had just been embarked upon by the
British Government. He spoke to an audience principally comprising lawyers
engaged in the drafting of legislation, most of whom were disciples of plain
language legislative drafting. He said the rewrite was not driven by a desire for clear
and accessible legislation for its own sake, or because British tax law was
complicated and needed to be rewritten in plain language because it was nicer that
way. What drove the rewrite and the commitment of substantial funding was the
need to protect the revenue base. In other words, it was all about money, not
aesthetics. This message came as a shock to some of his audience.
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The greater the importance attached by government to effecting policy change, the
more likely it is that the legislation required to bring about that change will get the
necessary attention within government and Parliament. The result is that the law it
likely to get updated only if there are particular policy objectives driving the change.
Substantive modernisation of the law is a casualty of this phenomenon.
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If the processes of consolidation and reprinting are limited in what they can achieve
in improving accessibility and more extensive reform depends on political will, how
can the law be updated? At various times it has been proposed to rewrite the Social
Security Act 1964 without making any policy change on the basis that it has been
amended often, lacks coherence, and is difficult for users. It has never happened.
Rewriting the Income Tax Act 1994 has taken about 10 years. The Family Courts
Rules 2002 sit somewhere between consolidation and a pure form rewrite. The new
rules incorporated into a single set of rules, all the rules made under the various
statutes applying in the Family Court. Rewriting the Family Courts Rules has also
taken about 10 years and at times involved up to 5 legislative drafters. These
examples illustrate the level of resource and time involved.