My post on contracting by the US states (here) prompted @CherylStephens to inform me on Twitter of this post from a couple of days ago on the UK government blog Digital Marketplace.
It’s by Jason Waterman from the Crown Commercial Service and Warren Smith from Government Digital Service, and it’s entitled Working together to design government contracts for the digital age. It’s commendable, and it says the sorts of things you’d expect. Until we see some examples of what they come up with, there’s not much one can say in response. [Updated 17 July 2016: Well, I’ve learned that we do have an example; see Mark Anderson’s comment. If I had seen that example previously, I wouldn’t have written this post. Mr Waterman and Mr Smith are in need of a serious reality check.] But the following thoughts came to mind:
- Throughout their post they refer to “users.” It might be helpful if they were to be clear who they’re referring to. I suggest that anyone who’s involved in drafting, reviewing, negotiating, enforcing, or even just reading a contract is a “user.”
- It’s all well and good to talk about clarity and simplicity, but no one would confuse even modern business contracts with other forms of writing—the prose of business contracts is more limited and stylized. So the GOV.UK style guide would be of strictly limited use. And even when you eliminate jargon and unnecessary terms of art, you’ll be left of terms of art that you can’t avoid without adding a lot of explication. So what’s required it a style guide for contract language. A Manual of Style for Contract Drafting is the only serious attempt in that direction, but it’s too exhaustive to act as a broad-based style guide. You can expect something more manageable from me in the next year or two.
- Jason and Warren should be prepared to question all their assumptions and terminology. For example, they use in their post the phrase terms and conditions. It’s a phrase used by contracts people the world over, but it’s an unnecessary “doublet”—a condition is a kind of term, so just say terms.
- I wish Jason and Warren luck in purging UK government contracts of a tendency that English courts and lawyers are particularly prone to—the urge to attribute occult meaning to everyday words and phrases. For more on that, see this item in The Lawyer.
- When it comes to drafting, I hope that instead of relying on static standard forms, the UK powers that be consider using automated contract creation, with users creating a draft by answering an annotated online questionnaire.
I look forward to seeing how this project progresses.
There is a hint in the post that the team will pay attention to the document format (open source) not just content. The “coding” of documents (that is, the way the document is stored, tagged, and can be accessed) is a big issue in advancing our ability to use computer analytics on documents. Obviously, what the document says is important. But, if we ignore accessibility and usability, we will find lawyers slipping farther behind other knowledge based professions. Whether we like it or not, computers are here to stay.
The intention is commendable. Sorry to pour cold water, but the execution is dire. Their contract is here: https://www.gov.uk/government/publications/digital-outcomes-and-specialists-framework-agreement/digital-outcomes-and-specialists-framework-agreement
Problems include:
(1) Terrible design – just a very long web page with primitive formatting.
(2) Mixture of contractual obligations and descriptions of ranges of services. Should separate out different categories of material into separate documents or sections.
(3) Still uses lots of legal jargon, eg “warrants, represents and undertakes”.
(4) Too much computer and business jargon, eg “agile” and “waterfall”.
(5) Far too long for what seem to be small scale contracts.
(6) Inconsistent language, eg “must” and “will” both appear.
It appears that this is an initiative that doesn’t directly involve lawyers. It shows, sometimes in a good way, often in a bad way. Redesigning government contracts needs more firepower than the good intentions of a procurement manager and a “content” specialist working together.
Gawd help us.
Mark:
Also, as is typical of government contracts, they mix terms that govern the process of requesting and providing proposals that lead to the contract with the terms of the contract itself. If there is one thing that I could make procurement people stop doing, that would be it.
Chris