10th anniversary celebration - clarity-international.net · 10th anniversary celebration The Law...

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Advertisements 26-28Awards (Michigan) 3Back numbers 28Committee 26,28Commonhold proposals .2Conferences

Gotcsburg, August 1993.................. 27London, May 1993 27Ottawa, May 1993 27

Drafting points...... . 4-5,16Hansard Commission 2,6-12Inland Rtwenue efficiency scrutiny 20-22Law Society...... .. 2Lawyers' attitudes to plain legal language

(Bron McKiIlop) 23-25Legislation (Britain).......... ....... 2Letters .. 4-5,12Memher!> .27-28News

Britain 2Canada 2-3United States 2

Plain Language Bill (David Elliott) 13-15Poster 26Readership ofLegal Texts (Francis Bennion) .. 18-19Research 1,3,23-25

Michigan , 3Review (Michigan) 2Seminars 28

Press date for the next issue:9th June

Contributions would be welcomed,especially if accompanied by a copy on 3.5"

Macintosh~readable disc usingReady Set Go, Microsoft Word, MacWrite 1

or Teachtext.

A movement to simplify legal English

Patron: Lord Justice Staughton

No 27: Aprill993

10th anniversarycelebrationThe Law Society's Hall

113 Chancery Lane, London WC2

Tuesday, 8th June 1993

6.00 - 7.00 pm

CLARITY was founded by a letter which appeared inThe Law Society's Gazette on 8th June 1983.

To mark our 10th anniversary, we are holding a shortceremony on the evening of Tuesday, 8th .June. We are!,'Tateful to The Law Society for their kind hospitalityin offering us a room without charge.

Apart from members, we are inviting prominentmembers of the legal profession, a few others in publiclife who may be interested, and the press.

To save the work and expense of a separate circular,would members please accept this as their onlyinvitation'? If you would like to come please contactour Surbiton office as soon as possible, and preferablybefore 24th May, so that we know how many toexpect. We hope many of you will be able to come, butare asking for a contribution of £5 toward the cost ofthe evening.

During the ceremony we will review CLARITY'sachievements, publish the results of our currentresearch projoct, announce our plans for the future, andhonour the foundet, John Walton. Light refreshmentswill be provided.

Members are invited to send a brief, quotable note toSurbiton, explaining why they joined C;LARITY orwhat it has done for them. A seloction of these will beincluded in the press pack.

2 Clarity 27

Britain

Law Society calls forplain English

In its evidence to the HansardSociety Commission on theLegislative Process, the Law Societywrites that it:

would wish to see legislationthat is 'user friendly'; clearlydrafted in plain English andintelligible both to the lawyerand layman.

Meanwhile, the Law Society iscontinuing work on improving itsmany documents, and is from time totime consulting CLARITY.

Plain Language Bill

The second reading, scheduled forJanuary, was postponed, and we arewaiting for further news. However,Mr Brandreth's promotion to a jnniorministerial post may affect theprogress of what was a privatemember's bill.

Meanwhile we have passed to MrBrandreth the drafting suggestions ofthose CLARITY members respondingto the item in the last issue.

Commonhold and longtenancies

The Housing and Urban Development BiB now before parliament willgive most residential long lease-

holders the right - in each case as agroup comprising at least two-thirdsof those qualifying to buy thefreehold of their building andgrounds. However, this will affectonly the identity of the landlord andnot the terms of the leases.

However, the commonholdproposals have not been abandoned.These were welcomed in Clarity 20(April 1991) as the answer to ourplague of badly drafted leases, andare to be the subject of separatelegislation. Details are availablefrom:

IanJohnson

The Lord Chancellor's DepartmentSouthside, 105 Victoria Street

London SWIE 6QT071210 2108

Insurer's progress

Guardian Royal Exchange hasrecently announced changes to itsrenewal documents for householdand motor policies. A circular totheir agents says:

Research has shown that simple,concise renewal documentation isappreciated by both client andintermediary.

As a result of this, we are pleasedto announce major changes to theformat of our renewal packs (all ofwhose documents are) clearly andconcisely written.

Canada

British Columbia's PlainLanguage Institutereplaced by governmentprogram

The Government of British

Columbia has reduced its plainlanguage budget. This forced theclosure of the Plain LanguageInstitute on 31 st March, after threeyears in operation and only fivemonths after its successfulconference. Another victim is PegJames' Plain Language Project.

The province will now have noplain language initiative directedspecifically at the legal profession.

But what funds remain weretransferred on 1st April to a plainlanguage program run by theMinistry of Government Services.Philip Knight, the executive directorof the PU, will work as advisor tothe the new project until the end of1993. Meanwhile, two branches ofthe Ministry of the Attorney Generalhave joined CLARITY in the last

few weeks.

United StatesJoseph Kimble writes:

Thomas Cooley to updateits review of plainlanguage worldwide

Later this year I will be updatingthe summary of worldwide developments in plain language published inthe 1992 Thomas M. Cooley LawReview (Vol. 9, no. 1).

Jwould·1 ike to receive a one- or twopage summary of its activities fromany organization involved in plainlanguage (or clear communication)projects. Please write to:

Thomas Cooley Law SchoolBox 13038

LansingMichigan 48901

USA.

Michigan bar introducesplain langage awards

The Plain English Committee ofthe State Bar of Michigan hasintroduced what it calls a ClarityAward for organizations that havetaken steps to remove legalese fromtheir documents.

So far six awards have been made:

• The Michigan State CourtAdministrative Office, for courtforms;

• Lawyers' Cooperative PublishingCompany, for a volume of civilpractice forms;

• The Michigan Judicial Institute,for its opinion-writing seminarsand its manual for trial judges;

• The Legal Drafting Division ofthe Michigan Legislative ServiceBureau, for its generally modemapproach to legislative drafting;

• The Michigan Special Committeeon Standard Criminal JuryInstructions, for revising threevolumes ofjury instructions intoplain English; and

• The Committee on PatternCriminal Jury Instructions forthe United States Sixth Circuit,for writing new criminal juryinstructions in plain English.

News 3

We have started to sample lawsuit documents for legalese.

We did a rough survey of 30 complaints, 30 judicial orders, and 30 affidavits,

all filed in Michigan courts. Results: 24 of the complaints begin Now comes; 29

of the complaints begin the last paragraph wi th Wherefore; 19 of the orders use

the word hereby; and 25 of the affidavits are marked Ss.

These results are preliminary, since I am working on a more detailed study.

But they do suggest some conclusions:

• What should be the easiest step towards plain English - giving up archaic

language seems to be the hardest step to take. We all know that, taken as a

whole, plain English is devilishly hard and involves more than just getting rid

of herebyand the like. Cutting the archaic language should be the easy part

intellectually, at least. But emotionally, it seems to be the hard part.

• The research suggests a wide gap between preference and practice. My

earlier research, reported in Clarity 24, p.ll and 25, page 18, showed that

judges and lawyers overwhelmingly prefer to read plain English. In fact,

one of the choices in my study was between starting a complaint with the

old formalism Now comes the above-named plaintiff.. and starting with The

plaintiffsays. Abont 75 % of readers preferred the simpler version. But now

it seems that writers do not practice what they prefer as readers. Nor can

lawyers claim that it would be difficult or expensive to change this one line

in their complaints. In short, you can add hypocrisy and inertia to all the

other reasons for legalese. It is probably no surprise.

Obscure Clarity

John Fletcher

Thanks for the poster, but is

CLARITY going to issue themagnifying glass in their logo to allpostmen?

There was much predictablebarracking about the microscopicaddress labels under whose cover thelast issue was distributed.

After several weeks during whichcommitments to family and clients weresubordinated to the preparation of thejournal, the editor was left with scantpatience for the temperamental shortcomings ofa database which refused to

fit addresses onto labels unless theywere printed in 5-point type. Therecame a stage when either the editor orthe postmen had to have a nervousbreakdown. We opted for the postmen.

Nicholas Mc Farlane- Watts, amember who writes legal software forthe Macintosh, has kindly beencustomising a database to replace theone which so disgraced itself. 1 hope itwill be installed before this issue isready, and that the labels this quarterwill be written in headltne type.

Ms Lang has sent a traditionalversion oJthe type ofcontract she has inmind, but at 7 single-spaced pages it istoo long to reproduce; copies areobtainable from her orJrom SurbiJon. ItcOJ'ers the export oJ machinery, andincludes sections on:

with international trade. So far I havebeen unable to find an internationalcontract ofsale written in plain English.Would you have either a model draft or,better still, a genuine one (identifyingwords deleted, of course), which Icould use for teaching?

Please contact me at:

Department of EnglishVienna University of Econ &

Business Admin.Augasse 9, A-WOO Vienna, Austria

Tel: (010) 43222313364717Fax: 36 740

4 letters

Copyright notices

John Fletcher

One tiresome piece of legalese is thatnotice on the copyright page of manybooks. It is so widespread I presume itcomes from the Publishers Associationwith legal support. The 1992 ChambersPocket Dictionary, for instance, says

No part of this publicationmay be reproduced, storedin a retrieval system, ortransmitted in any form or byany means, electronic, mechanical, photocopying, recording or otherwiSe, without theprior permission of the copyright holders.

According to the dictionary itself, inthe ordinary meaning of those wordsyou need permission to read it aloud(reproduce), shelve it or retrieve it fromthe shelf, or send it through the post.

The right of John Smith to beidentified as Author of this workhas been asserted by John Smithill accordance with the Copyright,Designs and Patents Act 1988.

It would haJ'e been more sensible lftheAct had permlJted this unsurprising inJormoJion to be impliedby the appearanceoJthe author's name underthe title. -Ed.]

Tasmanianstudies

Veronika MaddockDeputy Chief Parliamentary Counsel

I would appreciate a smallparagraph being published in thenext issue of Clarity asking anyonewho is carrying out research or otherstudies on plain language in the areaof legislative drafting or statutoryinterpretation to contact me at

Goodspackingguaranteeclaimslate delivery and

paymentdocumentation

inspectionJorce majeure

arbitration.

Can any members with copyrightknowledge suggest something bothmore accurate and more readable?

Robert Swift, a copyright

specialist at Linklaters &

Paines, replies:

Copyright notices are often written injargon. In fact, the copyright laws ofmost countries do not require a notice atall. But there are some advantages to asimple, easily understandable notice,both legally (in giving rise to statutorypresumptions) and practically (bywarning people against infringement).

I suggest something like this:

Copyright {name of owner] 1993.Copying all or part of this bookby any means, including electronic storage, is prohibitedwithout prior written consent.Copyright infringement maygive rise to criminal as wellas civil liability.

[We now have:

Office of Parliamentary CounselGPO Box 1409P

HobartTasmania 7001

Australia.

I would be happy to pass on anyinformation or experience I have inthe field to anyone who may beinterested.

I am planning a visit to the UK towork on my thesis, probably in1994/95, and hope to meet you andother members then.

Internationalcontract of sale

Sandra M.Lang

Towards the end of their studies ourstudents are expected to be able tounderstand legal documents connected

And/or

Robin Towns

In re Lewis (] 942 2 All ER 364) thecourt had to construe a gift in a will"to X and/or Y". The Crown arguedthat the gift was void for uncertaintyand that there was thus an intestacy,but the court held that X and Y shouldtake as joint tenants and that if onlyone had survived the testator theproperty should go to the survivor. Inthe then rarified and uncommercialatmosphere of the Chancery DivisionFarwell J. was able to observe of"and/or" in that case that "It is anunfortunate expression which I havenot'met before and which, I hope, Imay never meet again."

It is said that about the same timeanother Chancery judge, Bennett J.,stated that he would deal with theexpression "by making someone paythe costs of an affidavit framed in

that way".

It is a "bastard conjunction" which"has become the Commercial Court'scontribution to basic English", according to Lord Simon L.C. in Bonitto v.Fuerst Bros (1944 AC 75, 82).

Continuing LegalEducation Society

of British Columbia

Peg JamesDirector, CLE Plain Language

Project

As the CLE Plain Language Projectwinds down, I want to thank you forsupporting our activities. Yourinterest in our work motivated us tosuccessfully complete all of ourprojects, which were aimed athelping lawyers write more clearly.

The book we produce for baradmission students, called ModernWriting for Lawyers, is availablethrough CLE, as are plain languageretainer agreements, a will precedent,and two booklets of plain languagetips. Our foreclosure precedents willbe distributed under the direction ofthe Judges' Practice Committee.Other precedents that we reworkedappear in bar admission materialsand some CLE publications. Formore information please call KarenImeson at(010 1 604) 893 2110.

Although the project ends March31st, CLE will continue to offer aplain language writing course, calledClear Legal Writing AContemporary Approach, in severalforms. The course is offered in-houseover one or two days. We alsorecently taught it as a five-part breakfast series that was over-subscribedand so became a lunch series as well.Now the course is scheduled in a 1.5day form, and is to be held inKamloops, Victoria, Surrey, andKelowna in May and June.

CaU Phil Knight at 604 687 8895 ifyou want to join the mailing list ofthe Vancouver or Victoria plainlanguage groups.

A franchiseecomplains

Clive Cassel MSc

Nippers UK Franchising Ltd

We recently received from a newfranchisee a photocopied extractfrom the agreement prepared by ourlawyers, with the words mutatismutandis highlighted and a sarcasticnote asking for a translation.

Only one of my fifteen lawbooksexplained the phrase, but after someresearch I was eventually able toreply that it meant with appropriatechanges.

Why could the drafter not say so inthe first place?

Successors in title

I have been trying to find a clearequivalent of "successors in title" foruse in a lease, but can find nodefinition, plain or otherwise. Anysuggestions?

Richard Castle replies

In view of section 79 of the Law ofProperty Act 1925 [in the nextcolunm], you may not need to usethe phrase at all.

Trevor Aldridge in Practical LeasePrecedents (an admirable work) has"whoever for the time being isentitled to the property under thislease". I like that and adopt it myself.

Although context is capable of

Letters 5

changing virtually anything, asub-tenant can not normally beregarded as a successor. A sub-tenantis a person who derives title from (or"under" or "through") the tenant. Thedistinction between successors andpersons who derive title fromanother is frequently made andreasonably clear, I think.

You might be able to get round theproblem by the phrase "any personwho derives title from the tenant,including an assignee".

::-: ':i::':'::::;:~:;:~:,:~::·~',:/:~)\::::::::::~:;::: ',)i:i: " ,:",,:'.•m.)·.A•. CQVertaotffllatlng.to·.··anylandofacovenantor or()<lpableofbelngllound bytllm,stl~H.Onle$sU ·a •• contraryintflll1~iM i$U expr~ssed.i bed;eernEld·· to bemage>~ytheCOvetlal'ltoton behalf oftlimselfblSsuccesson~111 tlrteQrldUlepersons.detivil1g.tit~Ul1d~(hil'n

of'ttlem....

.(~)For tne purpOses o11hiS

.section In connexlonu withCQvenantsrestl'iCllvE!of. tileuser .otland"suceessors JI'1title" .shall bEl.··deemed.JOInclude ttle. ·owtlersaodoccupiers for tllenms being ofsl.lchland.

Clarify 26

Joseph KimbleThomas Cooley Law School,

Lansing, Michigan

First a slight correction. The"WGAS" story (Clarity 26, p. 36) was

• not mine. It was told by one ofmy fullowpanellists at Vancouver, Andrew Siros.

But my compliments on issue 26.David Elliott and Martin Cutts have

contined on page 12 » ..

6 Clarity 27

Is there somethingbetter?

• make data retrieval moreconvenient (brackets andletters would not be used)

help provide access tolegislation in electronicform

..

» »

Say for example thatcomprehensive tests showedthat readers were able to locateinformation a second taster ifmarginal notes were placed astrue headings to sections. Or

• that the placement of sectionnumbers alongside sectionheadings speeded sectionlocation (or vice versa) thinkof the cost savings that couldbe achieved by everyonereading the statute book.

27

If just one or two changes ~ould hemade to improve the design of thestatute book think of the tremendoussavings of time that could beachieved throughout the statute bookon an ongoing basis. And thoseimprovements could be used forstatutory instruments, localgovernment bylaws, company

It is time for a thorough review ofthe way in which the page of thestatute book is designed. The resultswould surely be worthwhile. Whatefficiencies and economies can beintroduced? What changes wouldimprove ease of reading and improveunderstanding? Is the typeface, linelength, page colour, numberingsystem, margin line and margin noteplacement the best it can be? Weneed that research to be conductednot in isolation but in cooperationwith other professionals who designtexts to help readers.

• make reading easier from ascreen (numbers replacingletters). 26

• leave less room forambiguity when retrieving asection

Law Retonn Commission ofVictoria: Access to the Law,the structure and format oflegislation (May 1990). Buteven so the Commission thinksletters are needed in somecases where Canadianjurisdictions would use".l or.2". The jury is out on theCommission's suggestion butit is worth studying.

then give to each item a separateline, preceded by a numericalfigure.

• reflect an internationaltrend towards the adoptionof decimal numberingsystems

26

Our numbering system for statuteshas served us well. But is theresomething better? - something thatwould work more conveniently with acomputer? The Victorian Law ReformCommission of Australia thinks so.They suggest that a modification of theintemational standard for numbering(a decimal system) would

After the verb governing,interpose between it and the list ofsubstantives governed, the words"as follows" with a punctum;

Denominate, enumerate andtabulate principles. Tt facilitatesreference, and thereby contributesto conciseness ...

25 Jercmy Bentham: OfNomography,p.265.

Henry Thring is usually creditedwith developing the structure andlayout of legislation. He first used anew format in the 1854 MerchantShipping Bill which he was retained todraft. Thring continued to develop thenumbering system used in statutesafter the Office of the ParliamentaryCounsel to the Treasury wasestablished in the United Kingdom in1869. He was appointed the firstParliamentary Counsel.

Development of thestructure and format

Although Thring was the first touse a new format and numberingsystem, the idea of breaking up thetext of Acts and legal documents hadbeen promoted by Bentham over 50years earlier. Bentham suggested 2'i:

Using Plain English in Statutes 1

bylaws, collectiveagreements and club rulesas well as otherdocuments. 27

Typography 28

Another aspect to improving thereadability of texts is by the use oftypographical devices. With therange of typographic tools nowavailable is there any reason why weshould not use them much more inlegislation? Why not emphasizecritical provisions or those that mightbe misread, for example, byunderlining or italicising orotherwise emphasising a word orphrase? Typographical devices areone more tool drafters can use.

* * *

appreciate that a number of themhave other ramifications. Forexample, one considerationParliamentary Counsel apparentlyhave in drafting Acts is to reduce thenumber of clauses so that theopportunity for debate in Parlia-mentis reduced. The more clauses themore possibility for debate, the fewerclauses the less possibility. In ourview, that approach to draftingshould be disregarded. The numberof clauses in a bill should bewhatever number the drafterconsiders necessary to achieve theobject with a view to making thelegislation as understandable aspossible. If a rule change is neededto make this happen then obviouslywe would urge a rule change. Manyof the following suggestions are notnew.

(a) Long title

technique that should continue.Having said this we must also saythat we found no gross examples ofthe long unbroken sections in the1991 U.K. statutes - so perhaps theproblem is no longer prevalent.

(c) Cross-references

Although we have pointed to someuseful Canadian drafting practicescross-referencing in Canadian legislation is overdone and oftenunnecessary. Rarely are the crossreferences helpful.

For the most part there is adifferent problem in the 1991 U.K.statutes. In an attempt to explain thecross-reference the text tends to givetoo much information. By the timethe explanation about thecross-reference is absorbed, thesense of the text is lost.

In making these suggestions we

Some observationson the 1991 statutes

We have already suggested that adrafting manual be adopted by tht:Parliamentary Counsel Office. Someof the following suggestions mightbe included in it.

The point we want to make hereabout numbering systems, pagedesign, and typographical devices isthat drafters should at least be awareof them and have an open mindabout their use. If new techniques,devices, or ideas will helpcommunication, assist in aspects ofcomputerization, help amendments,make consolidations easier, or helpreader then drafters should at leastconsider them.

For example, in the Statutory SickPay Act, 1991 (1991 c.3) section 1reads:

(1) /n section 9 of the SocialSecurity and Hou:.;ihg Benefits Act1982 (recovery by employers ofamounts paid by way ofstatutorysick pay) in subsection (/)

(1) The Social Security andHousing Benefits Act 1982 isamended

(a) in paragraph (a) (whichrequires regulations to makeprovision entitling an employerwho has made a payment ofstatutory sick pay to recover theamount so paid by makingdeductions from his contributions payments) for the words".from payment" to "by making"there shall be substituted. ..

(a) in section 9(a), by strikingout . .. and substituting:

In Canada, the actual amendmentwould be quite separate from theexplanation. The equivalentamendment in Bill form in most

•Canadian jurisdictions would read:

Sentence length for legislationshould be short. Where it is notpossible to be short the clausesshould be tabulated.

We would eliminate them. Theygive legislation an unhealthy lookand serve no useful purpose thatcannot be achieved in other ways.

There is a division of opinion inlegislative drafting circles on thispoint. Documents must be read in thecontext of the whole document. Inmost cases it can be assumed thatone thought leads to another, andvarious techniques can be used toindicate that. The use of the longsentence without tabulation is not a

We appreciate that ont: purpose forlong titles in the United Kingdom isto limit the amendments that can beintroduced to a Bill. To eliminatelong titles may require other rulechanges. The point is that the ruleabout amendments to a Bill shouldnot limit needed improvements to thelegis-Iative product. The rule shouldbe designed to facilitate improvements in the product, not impedethem.

(b) Sentence length

J Hartlcy: Designing instructional text (2edn) (1985) NicholsPublishing.

28

8 Using Plain English in Statutes

reads: ...

The extract of the legislation wouldbe included. An explanation of theamendment might then follow. Whenthe Act is passed the explanatorynotes are dropped from the printedAct.

While the U.K. approach appears togive more information at first sight itin fact gives less because it does notexplain the effect of the amendment.More helpful would be anexplanation of what the amendmentdoes.

The other advantage to the Canadianapproach is that amending Acts are,for the most part, purely a means ofmaking a change to the principal Act.Once the amending Act is passed itsjob is done, it merges with theprincipal Act, it does not continue tohave a life of its own (there are someexceptions to this but they arelimited).

Several Canadian jurisdictions areworking on computer systems totrigger automatic amendments toprincipal Acts once the amending Actcomes into force - so having an up todate statement of the statute lawavailable as soon as possible.

(d) Formulae

The 1991 U.K. Statute Book showsextensive use of formulae andParliamentary Counsel should hecongratulated.

(e) Archaic words

Needless to say, archaic wordsshould be eliminated. On the wholewe did not find this to be a majorproblem in modern U.K. statutes.

(f) Unnecessary words

In the 1991 U.K. statute book morewords are used than are necessary.

For example, when an internalcross-reference is made in an Act it isusually followed by the word "above"

or "below". But this is not consistentand we see no need for it. (Thispractice is better than saying "of thissection" or "of this Act" after everysection reference.) The drafter of theRegistered Homes (Amendment) Act1991 gave precise one wordamending instructions, for example:"substitute", "add", "omit". Contrastthat style with most of the otheramending Acts in the 1991 statutebook which say "there shall beinserted", "there shall be substituted", "there shall be added", and soon. (See the Crofter Forestry(Scotland) Act 1991 for example.)

To summarize: we think usefulwork could be done to standardizeamending instructions using theprecise model of the RegisteredHomes (Amendment) Act.

As mentioned earlier the U.K.drafting style still clings to theoutmoded "shall".

For example:

(i) "This Act shall come into forceon...."

(Why not "This Act comes intoforce on .. ."'1)

(ii) "Paragraph (b) of subsection(2) above shall not applywhere ...• (s3 1991 c25)

(Why not "Subsection (2)(b)does not apply when ..."'1)Earlier in the same section thefollowing words were used:"This section applies·, not"shall apply".

(iii) "... a person shall he entitledto the care component of adisahility living allowance"(s37ZB 1991 ell)

(Why not "a person is entitledto the care component ... '''!)

There are many other examples.Drafting in the present tense wouldnot be a difficult change of draftingstyle to make hut would improve thetone of the Acts considerably (as

well as saving words).

(g) Using examples

The United Kingdom has been theleader in using examples inlegislation. The technique is notoften used, but has been applaudedby academics and the judiciary alike.More use could be made of them.

(h) Tone

A more conversational tone couldbe used in statutes.

For example:

•A person who is under 18 yearsold"

instead of

"A person who has not attained theage of 18 years".

(i) Definitions

Definitions tend to be scattered allover the place, and difficult to followal1dfind. .

(j) To summarize

Many of these suggestions mayseem "picky", but combined theywould lead to improvement indrafting.

The real test of course is to take acomplete recent Act and try toredraft it in a plainer style and getthe same legal effect in the rewrite.That would be a challenging projectbut probably the only way of provingwhat can be done. Unfortunately,time did not permit us to attemptthat.

Computers and thedrafter

No doubt the Hansard Society willbe familiar with what "the computer"can do to help drafters. But too

III


the collective knowledge andexperience of the Office. lt can, ofcourse, be modified from time totime as necessary.

The system can be seen as thecollective wisdom of the Office inasking the questions to get the factswhich can then be turned intoclauses, reflecting the office draftingstyle. 29

Because the questionnaire iscomputerized it can be structured inthe form ofa logic tree. This means theanswers to certain questions automatically cause the system to moveinto specifically selected lines of otherquestions - questions that might nothave been raised without the help ofthe computer. Alternatively, thecomputer will automatically eliminateother questions which are not relevant(a bit like the typical passport formwhich allows you to skip severalquestions if, for example, you are notmarried or have no children). By thissophisticated branching system theParliamentary Counsel is led throughall the questions necessary to get adetailed description of the law to becreated. For many questions thecomputer provides a suggestedanswer - if the answer is accepted thereturn key is tapped - variations tothe answer are also given ifrequested and problems highlighted.

many drafters either don't know, orworse, don't seem to care. Becausethe computer can be so helpful tolegislative drafters in a variety ofways we touch on some of them here.

It goes without saying that the soonerlegislation in all its forms is on a readilyaccessible database, and in its most upto date form, the better. We assume thatthe Parliamentary Counsel Office hascomputerized facilities which allowsthem to search the statute hook to helpwith consequential amendments toother Acts, and to store and retrieveup-to-date versions oflegislation.

The typical functions of a wordprocessing system are well known:the capacity to move text around, tosearch and replace words and phrases,to spellcheck, to check the occurrenceof words and of their use in definedsenses, are all particularly helpful tolegislative drafters.

But there are a number of facilitie..<;that are not as well known and notused as much as they might be indrafting.

These include

• automatic numbering andrenumbering systems

• creation of tables of contents

• a program that will automaticallymarlc all additions and deletions toa previous draft (extremelyhelpful for readers vvho just want tocheck the changes made from onedraft to another)

• programmable programs whichcan be designed to automaticallypoint out errors or inconsistencies,overlong sentences, overuse of thepassive voice, and so on

• other editing functions.

Helping to design a precedent

bank of questions and clauses

But a computer can do more thanthis. It can help drafters significantly

improve the quality of their work.

(i) drafting the law

Not only must legislation be legallysound but possible alternativeapproaches, solutions or options to agiven problem or issue need to beconsidered. The traditional precedentonly gives a standard form answerit does not exercise the mind. If thedrafter does not think of analternative a precedent will not help.

(ii) knowledge of the facts

Knowledge of the facts is based onasking the right questions. Again thetraditional precedent does not help it gives answers without necessarilyknowing all the relevant facts.

(iii) integrating the law and

the facts

The aim of drafting legislation is toachieve a client's purpose in the bestway without unforseen consequences.Computer software programs are nowavailable to help with the task.Computer programs can be developedto help draft the simplest to the mostcomplicated legislation but theprogram would take some time todevelop.

(iv) the program

The program builds on whatParliamentary Counsel already havein a written questionnaire form(standard questions to ask) or whatthey have learned to ask clientsthrough years of experience.Typically asked questions are redesigned and loaded into thecomputer program. Any particularanswer to a question will initiate awhole new series of questions. Allthe variations, options and alternatives Parliamentary Counsel wouldnormally ask a client are put into theprogram. Each Counsel in the officewould be asked to participate in thequestions, variations, options andalternatives. The result is a verycomprehensive program containing

29 This description is based on an11 November 1985 NationalLaw Journal article called Helpin drafting complex documents.The article dcscribcd a programcalled "Workfonn" available atthat time in the United States.

There are other programs similarto this on the market and someword processing systems allowthis fonn of program to bedeveloped. (See The Lawyer'sPC, 1 October 1987 issue,describing Wordperfect as alegal systems engine.) We do notknow of any legislative draftingoffice that has experimentedwith this program. It is beingused in some private law fInns.

10 Using Plain English in Statutes

Accessible statute law

General

The accessibility of statutes, that is,being able to get a copy of the law inits most up to date form, is obviouslyan integral part of having accessible

Vetting of drafting style

The statutes have been framedextemporaneously, not part of asystem, but to answer particularexigencies as they occurred.

The French have a system by whichthe COllseil u'Etat have oversight ofstyle and this system of audit issupported by some.

A department by which bills, afterthey have passed Committee,might be supervised and put intointelligible and working order,and then submitted for finalrevision to Partliament beforethey are passed into law.

There have from time to time beensuggestions that some form ofvetting procedure be put in place toensure consistency with otherlegislation and adequacy of draftingstyle. Some have suggested theHouse of Lords might perform thatfunction, others that a specialcommittee be established for vettingby experts. This proposal was madeby Lord O'Hagan in 1877:

The Statute Law Society made thesame point in its memorandum to theRenton Committee in 1973.Although improvements have beenmade in recent years much moreremains to he done. For example, asystem of statute revision alongCanadian lines should he consideredin association with computerizationof statutes and an automatedamending system.

and understandable law. This is not anew issue. In 1835, the Statute LawCommissioners said in their firstReport,

A project of this nature couldbe Commonwealth in scopeperhaps in one sense pickingup on the suggestion made byFrancis Bennion in 1980 inStatute Law (p.24):

3l

The best statutory drafting is nowvery good. See for example, the LocalGovernment Act 1988 and the draftbill attached to the latest Law Commission report on land registration. Somelegislative drafting is bad: see thenotorious Leasehold Reform Act1967. Many problems remain withstatutory amendments.

To the extent that they are not nowthe practice in the ParliamentaryCounsel Office, Clarity endorses therecommendations of the Statute LawSociety Memorandum of October1973 to the Renton Committee.Virtually all of those recommendations are part of normal practice inCanadian jurisdictions and have beenthe practice for many years,

There seems to me to be aconsiderable opportunity to improvesubstance, style and consistency oflegislation with this kind ofproject. 31 We suggest the HansardSociety recommend it.

Obviously computer programs thatdevelop questions can also proposeprecedent clauses. Whether for lawfinns or Parliamentary CounselOffice standard clauses 30 can provideconsistent style and quality. If adrafter proposes a variation to thestandard, justification for the changecould be required, or approval from asenior member of the office.

The advantages of this kind ofprogram to lawyers in private practiceare obvious. Even the most junior oflawyers has the benefit of the programwhen asking questions and thinking ofthe kinds of questions to ask. Asimilarly structured program todevelop legislation seems to be equallyadvantageous. Parliamentary Counseldo not use precedents - certainly not inthe same way or to the same extent aslawyers in private practice. The drafteris often left to his or her own devices.The dangers of the drafter not asking allthe right questions, or ofnot thinking ofall the options, are very real. Withprograms designed to ask the rightquestions the drafter has a helpfulsupport system.

Drafting precedents

Over time it should be comparatively easy for the ParliamentaryCounsel Office to pool its collectiveknowledge about the questions thatshould be commonly asked and thethings that should he consideredwhen designing particular pieces oflegislation or elements of them.

30 The great fear of precedentclauses is that once a precedentis estahlished it stagnates.

Parliamentary Counsel eanavoid this hy periodic review.

Standardization is an areawhere cooperation hetweenCommonwealth countrieswould be fruitful. Modelclauses on topics like strictliability or powers of entrycould bc drawn up in uniformterms applicable to anyeommo'n law country.

The question of auditing bills hassome intrinsic difficulties but inconcept has some points torecommend it. This cannot replacethe attempt at the earlier stages ofdrafting for clarity. An auditcommittee might be linked to thegeneral concern about lack of properconsultation with those most affected


We can all improve ourcommlll1ication if we adopt the lateDr Elmer Driedger's philosophy,which is valid for all legal writing, 33

the centuries and in differentCOlll1tries attests to the correctness ofthat view. Each in their own waycreate law. Each in their own waymust be interpreted by those whomust administer them, the publicaffected by them, the parties boundby them, and by judges who mustmake decisions about them.

a writer of laws must have thefreedom of an artist, freedom touse to the fullest extent everythingthat language permits, and (thewriter) must not be shackled byartificial rules or forms,' andfurther, laws should be written inmodern language and not inancient, archaic or obsolete termsorjorms.

by new law. Once again quoting theStatute Law Society:

We think it essential that ways arefound whereby users can so far aspossible be properly consulted

(a) before a bill is drafted,

(b) when it is being drafted, and

(c) at all stages of its passagethrough Parliament.

That consultation could well includeissues of clarity.

As Francis Bennion has said

/t is timefor heads to go down andfor close attention to be paid ... tostatute law.

Earlier we suggested that aCommittee of both Houses ofParliament might be involved inauthenticating a drafting manual forguidance of Parliamentary CoUnselOffice. The same Committee mightalso be given oversight of Bills froma drafting perspective.

Other odds and ends

There are a multitude of other thingsthat could be said; a newInterpretation Act; further support for

recommendations of the RentonCommittee that have not beenimplemented; support for Bennion's"Keeper of the Statute Book"; theuses of computerization of statutes;and so on.

The present statute law system hasgrown up to serve the legislators notthe legislated. The whole movementfor reform should be based on theprinciple that the legislative processshould be concerned with the endproduct, and the ultimate users of it.While this may be oversimplistic, webelieve that goal must be kept inmind by reformers or else there willbe a real danger of getting boggeddown in apparantly mind-boggling,if not mindless, detail. Readers maynote that we have not dermed "plainEnglish". We do not need to - we areconfident that readers will give theterm a purposive interpretation.

Last words

Parliamentary Counsel and otherwriters of law don't write forthemselves; they write for others.The essence of writing law iscommlll1ication.

There is no special languagegrammar, syntax, or composition, forstatutes. 32 The form of statutes over

32

33

Next issue: Appendix

So wrote Or Elmer Driedger inA Manual of Instructions JarLegislative and Legal Writing.

Driedgcr's manual, p.4.

The aspects of legislation on whichthe Commission commented are:

consultation;drafting;

parliamentary processes;access to the statute book;

parliamentary progranuning; andthe impact of EC legislation.

The Commission welcomedCLARITY's "critical and constructive" arguments, published with otherselected evidence as an appendix tothe report. Although it does not agreewith' everything in our submission, itcommends it to all those interested inparliamentary drafting.

Points made in the report

• Parliamentary drafting hasimproved to some extent since theRenton Committee reported in1975 "widespread and deepseated concern about the style inwhich Acts were drafted,especially about lack of simplicityand clarity in their language."

• There has been someimprovement, notably in theadoption of textual amendment.

• According to Lord Renton, two ofthe most important points made inhis report had not been

12 TOp: "Making the law": The Hansard recommendations. Bottom: letters

implemented. They were that billsshould not attempt to cover everycontingency (which is any case animpossible task), and that theyshould be less detailed, and moreconcerned with principles andpurpose (which can begeneralised to cover unforeseencontingencies).

• The general tenor of most of thecomments we received on thismatter WaS of continuingdissatisfaction about the style inwhich UK Acts of Parliament aredrafted.

• Critics of the complex or obscurelanguage included

The Law Society;The Bar Council;

The National Audit Office;The National Consumer Council;The mstitute of Public Relations;The Association ofChief Police

Officers;Various local authority

associations;Shelter; and

Lord Howe, the former deputyprime minister.

• Statute law ought to be draftedprimarily for the convenience ofthe user (who is not necessarilythe man in the street).

• Drafters in Australia, Canada, andNew Zealand have reviewed theirstyles and practices and come upwith some interesting innovations.Further consmctive ideas havebeen put to us by CLARITY andothers.

» .. contined from page 5

done us a great service with theirwork on legislative drafting. And I

enjoyed the articles by Barbara Childand Jeanne Pasmentier. Pasmentier'sreport, short as it is, is the best

evidence I have seen that plainlanguage acts are working.

Selectedrecommendations

• The Legislation Committee of theCabinet should always ensure that"bills conform with the bestconstitutional principles and,where appropriate, that they havebeen prepared after full andgenuine consultation".

• The Attorney General should takeover ministerial responsibility forthe work of the ParliamentaryCounsel Office, and particularlyfor oversight of the draftingmethods employed and scmtiny ofthe drafting ofall government bills.

• The Attorney General'sDepartment should watch, andwhere necessary seek toharmonise, the drafting styles ofstatutory instruments.

• We should study Canadian andother overseas methods ofrecruitment and training ofparliamentary counsel, and weshould study their draftingprocednre.

• We need more parliamentarycounsel to avoid the draftingdefects caused by lack of time.

• Before parliamentary counselbegin drafting a bill, or adepartmental lawyer drafts astatutory instrument, a definitedecision should be taken by thedepartment and drafter concernedas to who are to be considered the

Clarify's layout

Anthony Wickens

There appear to he seveningredients of the criticism in thesecond par,agraph of J.B. Stutter'sletter (Clarity 26, page29): (I)

main users of the legislation. Thedrafter should then adopt a styleappropriate for those users.

• Drafters should always seekclarity. simplicity. and brevity intheir drafting, but certainty shouldbe paramount.

• Parliamentary counsel take toheart criticism of their style.

• Ministers. civil servants, andparliamentary counsel should doall they can to eliminateunnecessary and complicateddetail in the bills for which theyare responsible.

• Citizens, their lawyers, and thecourts should be of the intentionunderlying the words of a statute.Every Act and statutory instrumentshould be accompanied by notesexplaining the purpose andintended effect of each section.Courts should he allowed to usethese to resolve problems arisingfrom the wording of thelegislation.

• Acts should he kept as short,simple, and clear as possible, withdetail supplied by delegatedlegislation.

• Henry VIII clauses (which permitamendment of primary legislationby secondary) should notnormally be used.

• Getting a bill right should alwayshave priority over passing itquickly.

presentation; (2) layout (which to apublishing layman like me isdifficult to separate from presentation); (3) typography; (4) paper; (5)boxes with round corners; (6) shadedboxes; (7) absence of cover.

1do not see the connection betweenthe alleged "faults" and clarity of

contined on page 15 ....

Clarity 27 13

Contents

Section

1 Purpose of this Act

2 Plain language in legaldocuments

3 Obligation for creating plainlanguage documents

4 The cost of using gobbledygook

5 Legal liability and defence

6 Additional court powers

7 Declarations of non-compliance

8 Agreements cannot prevent thisAct applying

9 Crown must comply with theAct

10 Application of the Act

I I Definitions

12 Repeal of the Act

13 Coming into force

Schedule

Gobbledygook fee scale

Gobbledygook list

2 Adding gobbledygook to thelist

I David Elliott is a biurister andsolicitor. Comments and8uggt:Stions on the draft are mostwelcome and can be sent to him at:

313 LeMarchand Mansion11523-100 AvenueEdmonton, Alberta

Canada T5K OJ8

Plain Language Act

WE, THE PEOPLE OFCANADA,2 MAKE THISLAW:

1 Purpose ofthis Act

The purpose3 of this law is toimprove the language and design oflegal documents by

(a) changing attitudes andapproaches to writing legaldocuments so that the

2 This draft is compiled as a resultof conversations and commentfrom people across Canada. It isa fIrst attempt to bring the viewstogether in the form of draftlegislation.

The Act is designed so that itcould be introduced in theFederal Parliament, a Provinciallegislature, or a TerritorialLegislative Assembly.

3 Many people oppose purposesections in legislation. 1 supportthem in appropriate cases because,as Sir William Dale put it:

An enunciation ojprinciple giveslO a statule ajirm and intelligiblestructure. It helps to clear themind ofthe legislator, providesguidance to the Executive,explains the legislation to thepublic, and assists the courtswhen in doubt about the application ojsome specific provisions.

In this Act it is important tostress its prime purpose tochange attitides and approachesto official writing.

documents communicate theirmessage as clearly as possible;

(b) putting the obligation for clearcommunication on the writer orperson responsible for the legaldocument;

(c) imposing legal consequences ifthere is not a genuine attempt tocommunicate clearly;

(d) supporting the research andservices provided by the PlainLanguage Institute4 inimproving business, govemr.nent, and legal communication.

2 Plain language in legaldocuments

Legal documents 5 must

(a) be written in as understandablelanguage as the subject matterallows, and

(b) be designed6 in a way that helpsreaders understand thedocument.

4 Since this draft was written theInstitute has closed because ofwithdrawal of its funding.

Obviously another entity could benamed, a special fund created, orother ingenious idea designed tosupport research and practicalimprovements to legal, government, and business documents.

5 "Legal documents" are defined insection 11.

6 "Design" is defined in section 11.

14 David Ellion's draft Plain Language Act

3 Obligation for creating 5 LegalliabUity and defence public, rewriting legalplain language documents documents in plain

(1) A person, government, or entity language, or providing

(1) The obligation to comply with that does not comply with this another service to the

this law is as follows: law is liable for any loss public.sustained by another person

(a) for Acts, the obligation is because of that non-eompliance. (2) An order of the court may be

on the Crown; made subject to conditions.(2) It is a defence if the defendant

(b) for regulations, the can show that 7 ~clarationsofnon-

obligation is on thecompliance

(a) reasonable efforts wereMinister, person, or entity

made to comply and A not for profit corporation maymaking the regulation; maintain compliance with bring an action for a declaration that

(c) for municipal bylaws, thethis law and that, when a legal document does not complyappropriate, the results of with this law and, in addition to the

obligation is on the those efforts were used in declaration, may ask for an ordermunicipality making the the legal document, or under section 6.bylaw;

(b) the language and design of 8 Agreements cannot(d) for other legal documents, the legal document in prevent this Act applying

the obligation is on question cannot besignificantly iInproved. An agreement that tries to limit or

(i) the person who writes prevent this law from applying to a

it or is primarily 6 Additional court powers legal document is against public

responsible for its policy and of no effect.

contents; (1) In addition to or in substitutionfor any other remedy a court can 9 Crown must comply with

(ii) the corporation, impose, the court may this Actgovernment, or entity

(a) order a defendant who is This law binds the Crown.that uses the documentor proposes its use;

responsible for an Act,regulation, or bylaw to 10 Application ofthe Actreview it with a view to

(ui) the person who rewriting or redesigning it; This law applies to legal documentspublishes the document created after the date this law comesor who otters if for (b) tor legal documents other into force.sale. than Acts, regulations and

bylaws: 11 ~finitions

(2) When 2 or more persons,governments, or entities are (i) order a defendant to In this law

obliged to comply with this law, rewrite or redesign it;

the obligation is joint and "design" includes the legibility and

individual. (ii) order a defendant to layout of the document'stop using. publishing,

4 The cost ofusing gobble- or selling it; "legal documents" means

dygook(iii) order a person to take (a) Acts, regulations, and

(1) Those persons, governments, courses or training to municipal by-laws.

and entities that are obltged toimprove theirknowledge of written (b) agreements,

comply with this law must pay communication orto the Plain Language Institute documents design, or (c) wills prepared by onethe fees set out in the Schedule. both; person for another,

(2) The fees payable are a debt due (iv) order a person to (d) forms containing ato the Institute and can be provide community certification, declaration,collected by legal action for debt service explaining undertaking, or affirmation,if they are not paid voluntarily. complicated texts to the or forms that are intended to

David Elliott's draft Plain language Act 15

1

create a legal relationship,and

(e) every other document that isintended to create a legalrelationship,

unless a particular document orclass ofdocuments is exceptedfrom this law by regulation ofthe [Governor General][lieutenant Governor][Conunissioner] in Council, butthe definition does not includecourt judgements, arbitrationawards, or other decisionshaving legal effect.

12 Repeal ofthe Act

This law is repealed on 1st January2003. 7

7 No law should stay on the statutebook without a regular review.This section proposes repeal ofthelaw about 10 years after it comesinto force. The section will forcean evaluation of its effectivenessif the law works, it can beextended.

"" contined from page 12

expression, and the letterwriter doesnot explain the point. The lettercertainly suffers from lack of clarity.

(3) Who thinks the type isunattractive? For ease of reading,the present typeface seemsadmirable. "Pretty-pretty" is notappropriate, and may we be

. spared the uncomfortable-toread sans serif. type facesfavoured by some of the trendies.

(2) I think I know what "bitty"layout is, but do not know howto avoid it when there are a lotof short pieces (which are often

more likely to be read thanfewer long "solid" sections).

13 Coming into force

This law comes into fOrce [1 yearafter it is passMJ. 8

Schedule

Gobbledygook fee scale

1 Gobbledygook list

(l) For each of the following words,phrases, or abbreviations used ina legal document there must bepaid to the Plain LanguageInstitute the amount indicated:

For each

said._ .. _ $75aforesaid £150

herein $125

8 This section is designed to givepeople a reasonable chance to getlegal documents in shape.Altematively, the law could bedesigned to apply to differentdocuments over a 2-3 yeaqx.nod,phasing in its application.

(7) What is a cover! Does the criticismrefer to the gauge of the paperfOrming the outside, or does it reterto the absence ofan outside frontpage on which none of the"content" of the journal is printed?Ifthe latter, has the inside front alsoto be kept bare, and what about thetwo sides of the back? This is ajournal to be read, not one whichneeds to look "attractive" (ugh!) onthe bookstall.

(4) With the exception of the cover,the criticism of "too shiny"paper presumably does notapply to that issue. This is theone criticism with which Iwould have agreed. [No-one hada good word for the shiny insidepages, which originated as a resultof a misunderstanding with theprinter and has now been

hereinbefOre $200hereinafter _$175heretofore _ $150

hereunto $125

whereoL $75wherein $75

AD (Anno Domini) .$1,000

(2) If the word, phrase, orabbreviation is repeated in a

legal document 10 times or morethe fee for each use in the

document is tripled.

2 Adding gobbledygook tothe list

The [Governor General J [Lieutenant

GovernorJICommissioner] inCouncil may, by regulation,

(a) add to the listed word...,

phrases, and abbreviations,

and

(b) set the fee payable to thePlain Language Institute for

use of the wOfd, phrase orabbreviation.

aboUshed. The shiny outside pagesform the cover. -lld,J

(6) Shaded boxes contrast withboxes with white space, and this

probably helps to emphasise thedifference in status.

I do prefer the left-justifiedheadings adopted in the last issue tothe centred ones previously used.

And I do not know why you shouldbe defensive about justified type.

I have thomughly enjoyed readingClarity 26 (I usually do, but evenmore this time) and found all thearticle... except one most readable. Nodoubt that one was valuable andwell-written, but for some reason itwas low on my readability scale.

16 Clarity 27

Ambiguousinstructionspenalised

In Wormall v. RHM Agriculture(1987 3 AER 75) the Court ofAppeal upheld the trial judge'sfinding that a buyer WlL.'l entitled toreject goods as being not ofmerchantable quality (under the Saleof Goods Act 1979) because theinstructions which came with themwere ambiguous.

Long clausepenalised

In Stewart Gill v. Horatio Myer(1992 2AER 257) the whole of aclause was disallowed asunreasonable under s.11 (1) of theUnfair Contract Terms Act 1977, andnot just the unreasonable part.

Stuarl- Smith U said (at page 262):

In my judgment it is the termas a whole that is to bereasonable and not merelysome part of it. Throughoutthe Act the expression usedis "by reference to anycontract term......

The offending clause read:

The Customer shalt not beentitled to withhold paymentof any amount due to theCompany ... by reason of anypayment credit set-offcounterclaim allegation of

incorrect or defective goodsor for any other reasonWhatsoever....

A plainly drafted version, with eachitem a separate sub-clause, wouldhave had a better chance of survivingin part. This dedsion also supportsmy personal view that (instructionspermitting) we should exclude froma draft anything to which we wouldobject as unreasonable if we wereacting on the other side. This view isnot shared by many CLARITYmembers, but I have found it worksto the benefit of clients (most ofwhom do not want unreasonableclauses) by reducing the length ofnegotiations (so speeding agreementand minimising legal costs) and byreducing the badwill generated byunreasonable solicitors exceedingtheir instructions.

Unclear guaranteefails

In Houlahan, an Australian caseheard in October, the hank lost itsclaim for a full indemnity fromsureties who had thought they weresigning only a limited guarantee.

The court found that:

• some parts of the guarantee wereffcouched in incomprehensiblelegal gobbledygookff;

• some parts ffwould only be understood by a commercial lawyerwith time and patience to readthem carefullyff;

• the bank's counsel had beenunable to construe one clause;

• neither the sureties nor the bankofficers had understood the guarantee; and

• the sureties had not read the guarantee (and because they would nothave understood it, it would not

have made any difference if they haddone);

• the bank officers must have knownthat the sureties' acknowledgementthat they had read and understoodthe guarantee was false.

Criminal JusticeAct 1991

John Richman, clerk to the Sheffieldmagistrates, has complained in aChannel 4 programme (not yetscreened) of the time he wastesstruggling to construe badly draftedlegislation.

He gives as an example s.29 of theCriminal Justice Act. This has beenwidely criticised for its lack ofcommon sense, and the Home Officeis to review it after a publicdenunciation by the Lord ChiefJustice. Mr Richman points to thedifficulty of reconciling subsections(1) and (2): .

(I)An offence shall not be regardedas more serious for the purposesof any provision of this Part byreason of any previousconvictions of the offender or anyfailure of his to respond toprevious sentences.

(2)Where any aggravating factors ofan offence are disclosed by thecircumstances of other offencescommitted by the offender,nothing in this Part shall preventthe court from taking those factorsinto account for the purpose offorming an opinion as to theseriousness of the offence.

Twisted passives

We sometimes distort our meaning,

I

+

when using the active mood to avoidthe passive, by making the wrongnoun the subject of the sentence. Touse an example I heard recently:

Change is needed

becomes

Change needs to happen

instead of

We need change.

It is we, not the change, which hasthe need.

The diffident"perhaps"

"Perhaps" is often used arbitrarily,either modifying the wrong phrase orword, or inserted in a sentence where

it has no business at all.

This morning I heard

The accident was not soserious as had perhaps beenfeared.

Or perhaps not? In which case

The accident was not soserious as had not beenfeared

which is meaningless. And if theopposite of an expression ismeaningless, so must the originalexpression be.

Over-emphasis

Few things these days happen by

Drafting snippets 17

halves; everything is "very much"something, regardless of the meaningof the words or the structure of thesentence.

It began when interviewed"personalities" fell "very much inlove", as opposed to "just a bit in love".The extra depth of their emotion didnot seem to inhibit early separation.

"Very much" has spread like DutchElm Disease.

We might have, for example:

This argument is very muchcircular.

This is as ungrammatical as

This argument is muchcircular

and the argument has the samecircumference - I might say "verymuch the same circumference" - asan ordinarily circular argument.

Here is an extract from the lease ofa flat in a Surrey block:

2. The Tenant hereby covenants with the lessor and with and for the benefit of the owners and lessees from time totime during the currency of the term hereby granted of the other flats comprised in the Building that the Tenant and

the persons deriVing title under him will at all times hereafter observe the restrictions set forth in the First Schedule

hereo

3. The Tenant hereby covenants with the lessor as follows:-

(1) H'

4. The Tenant hereby covenants with the lessor and with and for the benefit of the owners and lessees from time to

time during the currency of the term hereby granted of the other flats comprised in the Building that the Tenant will

at all times hereafter during the said term so repair maintain uphold and keep the Flat as to afford all necessary

support shelter and protection to the parts of the Building other than the Flat and to afford to the lessees of

neighbouring or adjoining flats or premises access for the purposes and conditions set out in Clause 3(9) hereof

You are invited to list the faults. One point will be given for each, with the more ingenious defects weighted with one, or(exceptionally) two, bonus points. The winner will be the person with the most points (but if there is only one entrant mustearn 40 points). The prize is one choice from the following books (subject to availability):

Dictionary ofModern Legal Usage by Bryan Garner

Drafting legal Documents by Barbara Child

The Language ofthe Law by David Mellinkoff

18 Clarity 27

I believe CLARITY will be helpedin achieving its aims by havingregard to the intended readership oflegal texts. The requirements differas the readers differ. What would beclear to an adult might not be clear toa child. What would be clear to alawyer might not be clear to a layperson. And so on. In this article Iparticularly have in mind legislativetexts.

Some definitions

CLARITY describes itself as "amovement to simplify legal English".Let's start by looking at somedefinitions.

The OED defines "simplify" as "Tomake simple; to render less complex,elaborate, or involved; to reduce to aclearer or more intelligible form; tomake easy". It defines "simple" as"·Free from duplicity, dissimulation,or guile; innocent and harmless;undesigning, honest, open, straightforward". Another OED meaning of"simple" is "Free from elaboration orartificiality; artless, unaffected;plain, unadorned". So we mightexpand "to simplify" as meaning toput into a form which is as clear (thatis intelligible and free fromelaboration) to the intended reader asis practicable.

The word "practicable" is definedby the OED as "Capable of being putinto practice, carried out in action,effected, accomplished, or done;feasible'. Here it is useful toremember that apart from differencesin readership there are limitations onclarity imposed by the nature of theEnglish language. Often particularwords do not have a clear meaning,or have several meanings. Alsothere are broad terms used to confer

discretion on the interpreter, or toauthorise the exercise of judgment inchoosing from a range of meanings.Another language problem is that ofdifferential readings, where differentpeople legitimately and genuinelydiffer in their perception of themeaning of a passage. As LordDilhorne said, "due in part to thelack of precision of the Englishlanguage, often more than one interpretation is possible" (BlackClawson International Ltd v. Papierwerke Waldhof-Aschaffenburg AG(1975 AC 591, at 622). So we mighttranslate "practicable" as feasiblehaving regard to the limitations ofthe English 'language, the need tocarry out the relevant purpose(s), andthe need to be understood by theintended reader(s).

Next, what does CLARITY meanby "legal English"? It might beequivalent to "legalese", defined by theOED as "The complicated technicallanguage of legal documents".However, we get nearer the object ifwe equate it to the language of legaldocuments generally. This extends totexts not yet in being, and so not yetcomplicated or technical. (Perhapsthey never need be.) Before evenstarting to draft, we need to have theintention that our product shall be"simple" for the intended reader orreaders.

Legislative texts

So far no one would disagree.However, I now have to tacklematters of controversy. In his UtopiaSir Thomas More said: "All laws arepromulgated to this end, that everyman may know his duty; and,therefore, the plainest and mostobvious sense of the words is thatwhich must be put upon them". In

my textbook Statutory InterpretationI quoted More's statement, adding"This might apply in Utopia, butsadly does not hold good in real life"(2nd edn, 1992, p.21). Was I right?Many CLARITY supporters wouldsay no.

For me, this question goes back atleast to 1966, when I wrote the firstof many articles and books I haveproduced on the subject of statutelaw. All were directed to improvingthe state ofour legislation, but all werewritten on the basis that the legislativereadership is a professional one. Mymain concern, throughout my work,has been to bring about improvementsin the form of legislation, with a viewto helping professional users. (For asummary of users' difficulties andtheir cause see my textbook StatuteLaw, 3rd edn, 1990, chapter 13.)

Commenting on an earlier draft ofthis paper David Elliott pointed outthat legislative texts are notexclusively addressed to lawyers,adding "many professionals in theirfields of practice are able tocomprehend, interpret and applylegislation". I accept that they oughtto be able to do so, but it still leavesthe readership a professional one.What is clear to a skilledprofessional cannot be expected tobe always clear to a lay person.Indeed, if the text is intended for aprofessional audience it would oftenbe inappropriate, and in some casesimpossible, to try to word it as if ala"y audience were intended. Toomuch would need explaining. As theAssociation of First Division CivilServants told the Hansard SocietyCommission on the LegislativeProcess, and the Commissionaccepted, "What appears clear to thelayman may not be certain in

.,

meaning to the courts; and much ofthe detail in legislation, which canappear obfuscatory, is there to makethe effect of the provisions certainand resistant to legal challenge"(cited in paragraph 219 of Making theLaw, the report of the Commission,issued on 2nd February 1993).

One of the inexorable constraintson legal language is the need to fitinto the language of the existing law.An Act intended to amend the law

(as most Acts are) must fit into theexisting corpus juris or body of lawas well as expressing the reformingintention of the legislator. It must fitnot only the existing language(which may well be unnecessarilycomplex if we could start again) butalso the existing concepts. Adocument such as a will or mortgagehas the prime purpose of beingeffective as a legal instrument, that issuccessfully doing what it isintended to do. Where the two aimsconflict, as they sometimes do, it ismore important that the text shouldbe effective than that it should beclear. (1 say this rememberingdesperate occasions when I strove todraft a Finance Bill clause so that itfitted effectively into the frightfulmess that is the Income Tax Acts anddid not cost the country millions inlost tax revenue.)

Another point to note is thatobscurity in legislation is very oftencaused not by unnecessarycomplication of language but bycomplication (whether unnecessaryor not) of thought. When I starteddrafting the Sex Discrimination Act1975, for example, I began by writing"A person discriminates against awoman if on the ground of her sex hetreats her less favourably than hetreats or would treat a man". Theintolerable complexity of that Actarose not from any wish of mine butbecause those instructing me insistedon overlaying it with innumerablerefinements, exceptions, conditionsand exclusions. In doing so they weregenuinely seeking to conform to thepopular will as manifested inrepresentations from trade unions,women's groups, employers' organ-

isations and other lobbies.

There are other causes of legislativecomplication. An obvious one is thata Bill has to run the gauntlet ofparliamentary debate and amendmentin both Houses. This imposesspecific requirements on the drafter.(For the nature of these see myStatute Law, pages 28-40. For adetailed examination of the vices thatblock comprehension of legislativetexts see chapters 14-19 of that book.)The drafter could usually produce amuch better text were he or she free tostart all over again, rejigging thefinished Act. It is for this reason that Ihave advocated improving thepresentation by what I callpost-enactment processing, withoutof course altering the basic wording(see Statute Law chapter 23).

What of the legislator who, likemost, is a non-lawyer? Am I reallyaccepting that Bills and draftstatutory instruments have to bebeyond the understanding of theirnominal creators? This would beparadoxical, if not perverse. There isquite a long history about this aspect,too long to examine here. Untilrecently Bills were drafted accordingto the four corners doctrine, underwhich legislators were supposed tobe able to understand the gist of aBill without going beyond its fourcorners (that is without looking atany other document). Unfortunatelythis distorted the finished product, soa system of textual amendment wasadopted instead (for the story see myStatute Law pp 32 and 228-229).

A Bill or statutory instrument needsto be drafted in the way that is bestfrom the point of view of its ultimateuser. Lay legislators should be toldexactly what it means by explanatorystatements and notes, as they areunder the present system (though thiscould be considerably improved).

Conclusions

I don't want anyone to take awayfrom reading this article the idea thatI am lukewarm about CLARITY's

The Readership of Legal Texts 19

aims. I have tried to present somepractical considerations, distilledfrom the experience of 45 years ofworking in the field of statute law.This has taught me that bringingclarity into the law is a slow job,though it is a very worthwhile one.

One thing I am sure about is thatprogress will be quicker if would-bereformers study the efforts that havebeen made in the past, the results ofthem, and the proposals that havebeen on the table for some time(such as my own ideas mentionedabove). Lt is also necessary to realiseand accept that, whether we like it ornot, law is an expertise. A lay personwould not think they could do betterthan a professional in assessingsymptoms of illness, carrying out adiagnosis, performing a surgicaloperation, and issuing the prognosis.It's just the same when it comes toimproving the products of ourlegislative process.

I end positively with anotherquotation from David Elliott'scomments to me.

[I have difficulty with] the notionthat clarity and effectivenessare, if not mutually exclusive, atleast not of equal importanceand so should not be givenequal attention .... I would likedrafters to go the extra mileand make their drafts asintelligible as possible. Thepossibilities may be limited indifficult areas, but the attemptshould be made, without lossof effectiveness .... If drafting isapproached with a built-inattitude to clarity (whichincludes a knowledge of thosethings which assistcomprehension and of thosethings which impede

• comprehension) 1 think wemight see some dramaticimprovement and some boldexperimentation in legaldrafting.

Those are inspiring words, which Iwould like to endorse.

l

20 Clarity 27

achieve greater clarity as wemove towards forms of selfassessment.

Once again. thank you very muchfor your help.

Clarity members reply

At the beginning of Februarywe received this letter from theInland Revenue:

The aim of this scrutiny is toidentify common causes of error torboth customers and staff and tofind ways to eliminate or reducethem. This is, of course. a vastsubject which goes far beyondsimple counting errors oridentifying individual causes andtakes us into exploring underlyingproblems which may lead tocommon causes for diverse errors.

We are. amongst other things.carrying out in-depth researchwith our own operational staff andit would be immensely valuable ifthis could be complemented bythe views of your members.

One fundamental area we want toexamine is the nature of taxlegiSlation; its construction,ordering, revising and thelanguage used. Essentially, wewant to see whether there areways of making it easier to follow toavoid errors whether of ommissionor commission and whether madeby Revenue staff or customers.

Any comments or representationsyour members may wish to makeare welcome but they may like, inparticular, to consider three areas:

a The use of plain English inprimary legislation.

.b. Continuous consolidation, ieupdating the basic statutesafter every Finance Act

c. Revising whole sections orsub-sections each yearrather than using thetechnique of "add", "delete"."insert", and so on.

Efficiency Scrutinies have very

tight timetables and it has not beenhelped by my belated awarenessof your organisation. I really needcomments by the end of the firstweek in March. However, if yourmembers would like to makepreliminary comments within thattimescale, there will be anopportunity over the followingmonths to develop them.

The letter came from

Terry HawesRoom 416, South West Wing

Bush House, StrandLondon WC2B 4RD(DX 1099 London)

We passed copies to it tomembers known to beinterested in the field, and sentMr Hawes a copy of DavidEIliott's submission to theHansard Society (see page 3).

There was a considerableresponse, and we would like tothank those members whoanswered, and particularly forsending us copies, extracts ofwhich appear oplX'site.

Mr Hawes has since writtento express his gratitude for:

... stirring so many members towrite to me.

I now have a wealth of materialand comments to consider. It isonly fair to point out that thelegislative process is just oneaspect of the Scrutiny and that mypowers of recommendation arelimited given the relationship ofthe Department to ParliamentaryCounsel. Nevertheless, I shall belooking carefully at what theDepartment itself can do directlyand at how it can influence thelegislative process in future to

From Lord Justice Staughton:

May I whole-heartedly endorse yoursuggestion of continuousconsolidation? In the Court ofAppeal, as everywhere else, we sufferfrom the difficulty of finding thewhole of statute law on a particulartopic in one place. In addition, wehave to persuade the Lord Chancellorto pay for the publication whichcontains it. I am sure that continuousconsolidation is the answer.

Needless to say, I also supportplain English.

Dr Robert Eagleson, on behalfof Mallesons Stephen Jaques,sent copies of their recentsubmissions to Australiangovernment inquiries into TheAustralian Taxation Office andCommonwealth Legislative andLegal Drafting. These are toolong to print in full, but makethe following points:

Poorly drafted legislation does notcreate problems of interpretation onlyfor lay people. All users of legislation,including experts. struggle to come togrips with much of our legislation.Indeed, judges have often commentedon the incomprehensibility of legislative provisions they have had toconsider. The problem is even moreserious when one considers that manyof the public servants who have toadminister the law and explain it to thegeneral public do not have legal'training.

Much of the complexity inAustralian legislation and legaldocuments could be overcome by:

• the rigorous and comprehensiveadoption of plain language as a

I

drafting style;

• the participation of expertprivate professional services inthe preparation of legislation;

• the appointment of languageexperts to drafting offices;

• improvement in the training andguidance given to instructingofficers;

• a closer connection between thepreparation of a piece oflegislation and the regulationsand forms that implement it.

The principles of plain Englishhave been endorsed by Commonwealth and State parliamentarycounsel. Plain English preservesaccuracy and precision. Traditionallegalese does not qualify as goodwriting and is not worthy of amodern democratic society. It doesnot guarantee precision as so is sooften falsely claimed of it. Itfrequently conceals error andregularly leads to obscurity.Experience has shown that the use ofplain English in commercial legaldocuments (for example, insurancepolicies) has significantly reduceddisputes and litigation.

The government should considerappointing experts in the field oflanguage and document design todrafting offices. Some Europeancountries, such as Sweden andSwitzerland, already recognise thatpresentation of legislation is notsimply the domain of legislativedrafters, and they draw on theexpertise of non-lawyers.

Parliamentary counsel are solelyresponsible for the preparation oflegislation. This is often not the mostefficient approach. While they arehighly qualified as drafters, theymust be to a large extent generalistsin the law. They do not have theclose experience with its workingsacquired by lawyers who specialisein specific areas. Some of thecomplications and errors inlegislation and the difficulties in itsoperation arise as a result of thislimited experience.

We propose the appointment ofdrafting teams to consist of expertsfrom:

• the office of parliamentarycounsel;

• the relevant governmentdepartment;

• the relevant industry (in the caseof tax statutes, the privatetaxation advisory professions);

• the private legal profession;

• the fields of plain language,document design, and documenttesting;

• systems design..

This level of collaboration goesbeyond simply asking individuals orgroups to comment on near finaldrafts. Whilst opportunities tocomment should still be given, itneeds to be recognised that they tendto restrict observations to individualsections. It is more difficult tocomment on the entire structure orform of a bill. The more activeparticipation of outside expertsencourages that broader perspective.

We recognise that some may beconcerned with confidentiality, butexperience of other governmentprojects shows that this problem canbe overcome with appropriateundertakings.

Parliamentary counsel often receiveinadequate instructions from therelevant government department.Many instructing officers are notlegally trained, and may not occupyany particular position long enoughto develop the necessary skills.

It is worth developing sets ofquestions to guide the instructingofficer. These, and computer-assisteddrafting:

• increases consistency;

• speeds the drafting process;

• simplifies the drafter's job;

• focuses the attention of thosegiving the instructions and leadsto more precise information;

Inland Revenue efficiency scrutiny 21

• leaves the drafter free toconcentrate on the moredistinctive features of aparticular hill.

Acts are usually drafted before theancillary regulations, forms, andother supplementary documents.This can be unfair to those trying tocomment on the drafts.

The savings in both public andprivate sectors would be immense.Tests have shown that experts takefar less time to resolve problems ifthey work from documents in plainlanguage. One test with lawyersfound that reading time was reducedon average by 30%.

From Sir Kenneth Keith atthe New Zealand LawCommission:

The use of plain English inprimary legislation

A considerable amount of workhas been done in this area by theLaw Reform Commission ofVictoria. In its RepOrt no.9, PlainEnglish and the Law (1987), itconcluded that the use of plainEnglish would make the law moreaccessible and thus "help membersof the public to comply with theirlegal obligations"; that it reducesadministrative costs and legal costsin general; and that documentsdrafted in plain English by nomeans suffer "a loss of precision oraccuracy". Before it was abolishedthat Commission had also undertaken important work aimed at amajor new tax statute.

The Law Commission thoroughlyendorses these conclusions, and isitself engaged in preparing a Manual

• a/Legislatiall which promotes the useof plain English wherever possible.

Continuous consolidation

The Commission considers that thispractice is desirable largely becauseit facilitates access to the law.

22 Inland Revenue efficiency scrutiny

Annual rewswn of wholesections or sub-sections

The Commission's view is that whilethis practice may make statutes easiec touse, it is essential that amendments donot disturb the integrity of a statute'sstructure as a whole. This principle hasbecome clear in the course of the reviewof the New Zealand tax legislation.

From J udith Bennett onbehalf of the Law FoundationCentre for Plain LegalLangua~e,Sydney:

(a) The use of plain English inprimary legislation

Using plain English techniques inprimary legislation is essential.

Complex, inaccessible laws imposehuge costs on the administrators aswell as the general public.Legislation must be drafted for thepublic first as they have the right,and the need, to know andunderstand their obligations andrights. If the public can understand astatute, the courts will also findinterpretation easier.

This does not mean drafting for"the lowest common denominator"nor omitting technical terms; itmeans expressing ideas as clearlyand as plainly as possible. Complexdrafting and artificial concepts arerarely necessary.

Creating explanations is generally aless efficient method of communicating legal rights and obligations, andincreases the risk of error. But it willbe more convenient in somecircumstances.

Informing the writers of legislationabout plain English principles is alsoessential. Plain English is not just astyle of language; it requires thelogical and convenient layout andorganisation of the information tohelp the reader.

(b) Continuous consolidation

In our Design o/Legislation project

the people we surveyed, includinglawyers and law librarians. constantlycriticised the updating methods as adho,·, difficult to find, confusing, andcostly. Continuous consolidation waswidely supported. Law librarians andresearching lawyers preferredconsolidation on cheaper, computerteclmology, such as CD-Roms.

(c) Yearly revisions

The comments in (b) also applyhere.

The NSW government hasintroduced "sunset clauses",requiring revision ofall regulations.

From Richard Oerton:

(a) The use of plain English inprimary legislation

My own view is that statutes, andespecially taxing statutes, could andshould be much clearer than they are.However:

The Parliamentary Counsel are, inseveral senses, a law untothemselves. No one tells them howto drdft and they have resisted. andno doubt will continue to resist,suggestions for change.

The scope for claritication is notas great as might be thought, andit is not really a matter of "plainEnglish". Parliamentary Counselwould claim already to use plainEnglish, and in a sense they areright. The complexity of statutesarises largely from the need forthem to express complex policies(and if the Inland Revenue couldsimplify their policies, that mightcontribute more than anythingelse to the reduction of error).

I do believe, however, that there isreal scope for improvement in theconstruction of statute..'>, even if thiswere to involve some increase inlength. (By "construction", of course,r mean not the way in which statutesare interpreted, but they way in whichthey are constructed, or built up.)

(b) Continuous consolidation

The statutory code of taxation is ofcourse altered in two different ways.First, by textual amendment - that is,

through the amendment of existingprovisions normally contained in a"main" Act. Second, by the addition of"free standing" provisions. As to thesetwo methods:

There is no doubt that textualamendment is better and should be

used whenever possible. Insofar asit is used. it does already result in aprocess of "continuous consolidation". Every year, Butterworthsand other legal publishers producean updated version of the taxing

statutes, which incorporate all thechanges in text which are made bymeans of textual amendment.

This does not happen with"free-standing" changes. But legalpublishers do include these in theirannual publications. It may be that

more changes which are now freestanding could be made by textualamendment instead. If so, theyshould be. In a sense, indeed, allchanges could be made by textualamendment, even if this were to

involve (for example) the creation

of an entirely new "Part" for themain Act. For the practitioner thiswould be of only marginal

advantage.

(c) Yearly revisions

I am not sure that there is, in practice,

much difference between the twomethods you mention. It may be helpful to see exactly what an amendment

has added to or deleted from the original text, because otherwise its effectl1as to be laboriously disinterred from amuch larger chunk ofwording.

}'rancis 8ennion has arrangeda meeting with Mr Hawesrather than make a writtensubmission.

I

Clarity 27 23

Most Sydney lawyers think that theprofession should be encouraged touse plain legal language. This wasone of the findings of a recent surveyof the attitudes of Sydney solicitors,barristers and legal academics toplain legal language.

The survey was based on aquestionnaire containing 18 questionsI prepared in consultation with the LawFoundation Centre for Plain LegalLanguage at the Sydney UniversityLaw School. The questionnaire wassent to six finns ofsolicitors in Sydney one large firm, three medium-sizefirms and two small firm.<;. Seventyresponses were received. Thequestionnaire was also sent to six floorsof barristers, resulting in twenty-fiveresponses. The questionnaire wasdistributed as well to the academic staffof the Sydney University Law School,yielding twenty-five responses. l

The survey first sought to discoverwhat lawyers understood by theconcept of plain legal language.

The main ways stated of understanding the concept were "effectivecommunication" and "no legalese".

I There arc some 12,000practising solicitors in NewSouth Wales, of whom some6,000 practise in the Sydneymetropolitan area (includingParamatta); some 1,800practising barristers, of whomsome 1,250 practise in theSydney metropolitan area; andsome 50 academics at the lawschool.

1bere is probably a substantial overlapbetween these two expressions. Iflegalese is a form'ofjargon peculiar tolawyers and not readily intelligible tonon-lawyers then the ahsence oflegalese would make communicationbetween lawyers and non-lawyersmore effective. So the lawyerssurveyed saw the use of plain legallanguage as resulting in more effectivecommunication with their readers.This confirms one of the main calls ofthe advocates of plain legal languageand of plain English - first andforemost, consider your reader.

"Clarity" came next in the lawyers'understanding of plain legallangl.l.age.It was also the factor the lawyersconsidered the most important foreffective communication in legalmatters. Clarity must clearly be soughtin the eye of the reader.

The survey explored the benefits thatmight flow from plain legal language.Clients and the public were seen asmajor beneficiaries, but so were thelawyers themselves, indicating thatlegalese was seen as hinderingcommunication within the profession.The type of legal drafting thought mostlikely to benefit from plain legallanguage was that of contracts.

Two types ofcontract, traditional in!>urance policies and commercial leases,were seen as the least comprehensible ina list of eight types ofdocument submitted for a comprehensibility rating.Traditional insurance policies arealready being converted into plainEnglish. Solicitors for commerciallessees would doubtless appreciatereceiving similarly converted leases forperusal, to say nothing of their clients.

One matter of concern for theadvocates of plain legal language iswhether legal terms of art should berendered into plain legal language. Amajority of lawyers surveyed thoughtthat five of the six terms profferedfor consideration (subrogation,bequeath, estop, escrow, primafacie)should be so rendered, and that one(vendor) need not be. Related to thisconcern is the question whether thereare some legal concepts that arebeyond the understanding ofnon-lawyers. The response to aquestion about this in the survey wasthat even those with a non-lawuniversity education would probablynot understand some legal concepts.

Concerns among lawyers aboutmore general aspects of legal writingwere explored in the survey. Thehighest level of concern was aboutvery long sentences (over 100words); the next highest was aboutlong sentences (40-] 00 words). Thishigh level of concern is shared withadvocates of plain legal language.Frequent use of the passive voice,another high concern of the plainlegal language advocates, concernedthe lawyers surveyed much less. Ofmore concern to them were lack ofheadings and minimal punctuation.

A question I though worthexploring in the survey was whether~ny distinction should be madebetween written and oral legallanguage in this context. Each of thethree groups of lawyers was more orless equally divided about making adistinction. Those against making itgenerally thought that written legallandguage could and shouldapproximate oral legal language

24 Lawyers' attitudes to plain legal language

2. Should plain legal language be encouraged'!

• Of the three types of document rated on aggregate themost comprehensible it is salutary to note that two ofthem come from non-legal sources.

• The solicitor rate legislation as the least comprehensible

Sols Bars Acs Tot

Commercial corspdnce 1 2 I 4Judgments 4 1 3 8Letters from govt depts

and agencies 3 5 2 IDStandard contract for sale

ofland 2 4 6 12Court forms 5 3 4 12Legislation -8 6 5 19Commercial leases 6 7 7 20Traditional insurance pols 7 8 8 23

Of particular interest in these responses:

• the perceived benefits of plain legal language forcontracts (including both consumer contracts andcomplex commercial contracts).

• the relative absence of benefit perceived by the solicitors and barristers for legislation.

• the hopes for "everybody>f of the barristers and academics as opposed to the solicitors.

4. Who, in your view, would benefit mostfrom the use of plain legal language?

S2l§ Bars Ag Tot

Clients 70 20 25 115Lawyers 41 44 8 93Public 23 28 42 93Everybody 4 32 25 61

Sols Bars Acs Tot

Contracts 61 44 36 141All 21 48 28 97Client correspondence 19 8 12 39Legislation 4 8 24 36Advice 11 8 19Wills 17 17Litigation 9 4 13

6. [Respondents were asked to rate thecomprehensibility of eight types of document,from 1 (most comprehensible) to 8 (leastcomprehensible.]

Of particular interest in these responses:

• the client orientation of the solicitors as opposed to thebarristers and academics.

5. :For what types of legal work is plain legallanguage likely to be most beneficial?

104lOO847261

4448322020

9184

24163228

8

87Yes

Sols Bars Acs Tot

Clari~ 39 44 44 127Comprehensibility 33 16 12 61Simplicity 21 16 20 57Brevity/conciseness 20 12 12 44OrderlYstructure 16 12 16 44Knowledge of topic 14 20 34Plain language 13 16 29Short sentences 17 17Clear thinking 16 16

2 See David Crystal: The Cambridge Encyclopedia ofLanguage (1987) 179,386-7.

"Clarity" was the clear winner in each of the three groups.The responsents seem to mean clarity of expression ratherthan clarity of thought or concept, as witness the alternative factors of "clear thinking" and "knowledge of topic".The two ~pes of clarity do not necessarily go together.Clarity of expression can mask confused thinking andconceptual error. You can be clearly wrong, clearly.

3. What factors do you consider the mostimportant for effective communication inlegal matters'!

It may be helpful to consider the responses in moredetail. (The percentages in the first five tables are of theitems listed to the number of respondents. As eachrespondent generally nominated several items the verticaltotals exceed 100. The "tots" are the horizontal totals.

which, being close to everyday language, was alreadyplain. Those in favour of making a decision generallythought that language used in writing would always differfrom language used orally because of the differentaudience and processes of communications involved.Linguistic scholars general support this latter view. 2

Effective communication 36No legalese 36Clari~ 20Simple language 24Conciseness/precision 33

1. What do you understand plain legallanguage to be?

Lawyers' attitudes to plain legal language 25

• The solicitors rated lay incapacity markedly higher onaggregate (242/300) than did the academics (207/300)and the barristers (200/300).

10. To what extent do you think you wouldbenefit from instruction in plain legallanguage?

Sols Bars Acs Tot

Some adult members ofthe community 91 96 83 270

A person who has completedsecondary education 81 56 70 207

A non-law universitygraduate 70 48 54 172

124840

244828

95734

Not at allA littleA lot

academics was initial capitals, and for the barristerssplit infinitives.

• The solicitors had the highest level of concern overallfor the aspects of writing listed (636/900), followed bythe academics (573/900) and then the barristers(5441900).

9. Do you consider that there are some legalconcepts, rules or principles that are beyondthe understanding of

This and !hefollowing tables show !hepercentages answering "yes".

7. Do you think the following terms should berendered into plain language in legaldiscourse?

while rating it lowest of the types oflegal work for whichplain language would be beneficial.

Ofnote from these responses:

• the solicitors were more prepared to change these termsinto plainer language than were the barristers, but lessprepared than the academics.

• A majority of the solicitors and the barristers wouldchange four of the six terms into plainer language,while most academics would change all six.

• There was no consensus on the term most in need ofchange, although on aggregate "bequeath" (clearly outof favour with the solicitors), "escrow" (even moreclearly out of favour with the academics) and "estop"were the top contenders.

~ Bars ~ Tot

Vendor 36 24 52 112Subrogation 46 52 76 174Bequeath 83 60 73 216Estop 69 64 73 206Escrow 70 56 90 216Primafacie 60 48 64 172

8. Do the following concern you in legalwriting?

Sols Bars Acs Tot

Llng sentences(say 40-100 words) 86 76 80 242

Very long sentences(say over 100 words) 99 96 92 287

Frequent use of thepassive voice 57 64 62 183

Split infinitives 61 32 68 161Sentences ending withprepositions 76 40 56 172

Latin words 76 64 48 188Lack of headings 70 64 79 213Minimal punctuation (eg

few or no commas) 77 68 67 212Initial capitals (as in Judge,

Plaintiff, Will) 36 40 21 97

• Very long and long sentences were of most concern byfar to the three groups.

• After that the solicitors and barristers were mostconcerned about minimal punctuation, and theacademics about lack of headings.

• The matter of least concern for the solicitors and

• For each of the three groups, "a little" polled best.

• Asked what form the respondents thought suchinstruction should take, the solicitors preferred seminars(or lectures) and workshops about equally, while thebarristers preferred writte,n instruction and theacademics preferred workshops.

Conclusions

Some tentative conclusions may be drawn from thismodest fo;urvey:

• The lawyers surveyed clearly support the use of plainlegal language. They see effective communication,clarity of expression and absence of legalese asbeneficial both t~ lay people and themselves.

• Whilst they thought that many legal terms should berendered into plain English, they also thought that therewere some which would not be comprehensible tonon-lawyers.

• Lawyers have great concern about long sentences!

LGSM. ALAM. SRD.

offers two 3-hour tutorialsat y~:>ur firm or her London studio

each carrying 5 CE points and costing £120

Professionalpublication of

Clarity

CLARITY's slogan

The change from the reference to"legal English" to "legal language" isproposed to reflect the interests ofmembers in more than a dozen bi- ormulti-lingual jurisdictions.

each (or free if you want to distrihute

them to promote CLARITY).

We had hoped that a puhlisherwould take it on in the hope of sogreatly expanding the membershipworldwide that the price could bekept in bOWlds. But perhaps this istoo speculative.

Tolley's expressed interest inpuhlishing this journal, hutImfortunately the cost is prohibitive.To make the venture commerciallyviable, assuming 300 subscribers (asopposed to 432 as at present, toallow for lapse) they would need tocharge at least £70 a year. Nor doesthat figure allow any contribution tothe expenses of CLARITY (theorganisation).

A numher of extra copies havebeen requested by members, somefor branch offices and some to passto third parties. We are trying toarrange wider distribution aroWldsolicitors' offices and barristers'chanlbers, and amongst law students.

We are considering thesimplification of our slogan from .. Amovement to simplify legal English"to "Improving legal language" .Comments and alternativesuggestions would be appreciated.

Poster

A free copy was distributed to allmembers with the last issue ofClarity, but if you have joined sinceand do not have one please contactus. Extra copies are availahle at £1

We are also sorry to annOWlce thatPatricia Hassett will be going back toSyracuse in July, after 3 years on thecommitte. However, she has agreedto stay as a corresponding committeemember from the United States,where she intends to remain active inpromoting CLARITY.

A second batch of 500 posters hasbeen printed, and we are consideringa half-size version for the future.

0717353156

Voice productionPreparing a talk or speechPhrasingEmphasisModulationDistinctnessAudibilityUse of notesUse ofvisual or audio aidsPlatfornl techniquePersuasion

PUBLIC SPEAKING

Voice productionVowels and consonantsDistinctnessAudibilityInflectionModulationStressingPhrasingBasic public speaking

SPEECH CLARITY

Tel: 0980 620235

...--- Clare Price

26 Clarity 27

Committeemembership

She fills the gap left by MichaelArnheim, whose commitments inteaching, and in his practice at theLondon bar, mean that he is nolonger able to find the time forCLARITY work.

Alexandra Marks, now back atwork, has agreed to come back ontothe committee, on the Wlderstandingthat she will drop out again if itconflicts with maternity.

We would like to thank Michaelfor the contributions he has madesince he joined the committee In

October 1988.

CLARITY's patron, Lord JusticeStaughton, has recently lectured onPlain English for Lawyers atUniversity College, London, theUniversity of Hertforshire, and theCollege ofLaw in Guildford.

Professor John Adams has beenlecturing on the same subject atQueens University, Belfast, and inHong Kong.

Trevor Aldridge QC is leaving theLaw Commission at the end of theyear.

Martin Cults has just returned from atour-week lecture tour of South India,sponsored by the British Council.

Professor Patricia IIassett and acomputer programmer are designingsoftware to make bail decisions morerational. At present, she argues,decisions are hasty, arbitrary, andcause injustice beyond the temporaryimprisonment of untried defendants.The system, with minor variations,will fit the legal requirements of theUK, Canada, the United States(except Louisiana), Australia, NewZealand, Hong Kong, Singapore, andIndia. Her working paper, UsingExpert System Technology to ImproveBail Decisions, is available from TheInstitute of Advanced Legal Studies(17 Russell Square, London WC I B5DR) at £5.50.

Associate Professor JosephKimble starts his sabbatical year thisautumn with two months at theCentre for Plain Legal Language inSydney.

Donald Revell will be chairing thesession Legal Drafting: Biases andLegal Ethics at the CIAJ's Ottawaconference (for details of which seeopposite).

Canadian Institute for theAdministration of Justice

Legal Drafting: ChangingTimes

The Radisson Hotel, Ottawa

6th-7th May 1993

Registration fee: $495

(simultaneous translation service)

Discussions will include:

• Readers I Expectations hy GeorgeGopen, Director of WritingPrograms, Duke University, NC;

• The Language ofthe Law and theLaw-Maker by Jean-ClaudeGemar, Director, Department ofLinguistics and Translation,University of Montreal;

• Gender Neutrality in French byGerard Bertrand QC, Director,French Legislative DraftingProgram, University ofOttawa;

• The Political Nature ofDraftingby David A. Marcello, ExecutiveDirector, Public Law Centre,Loyola & Tulane Law Schools.

Further details from:Faculty of Law

University of MontrealPO Box 6128, Stn A

Montreal, Quebec H3C 3J7Tel: 010 1 5143436157 (Fax: 6296)

Plain English Campaign

Queen Elizabeth 11 Conference Centre

London

24th-26th May 1993

The Campaign does not want us topublish details.

Clarity 27 27

For all theright words

Seminars and courseson advanced writing skills(including plain English

for lawyers)

Editing and designof plain legal documents

Martin Cutts69 Bings RoadWhaley Bridge

Stockport SK12 7NDTel: 0663-732957 Fax: 0663-735135

University of Gotesburg

Professional Language andCommunication

12th-13th and16th-20th August 1993

This course is part of theUniversity's second annual SummerAcademy. Its purpose is "to increaseteacher readiness to develop modelsfor new courses in their respectiveteaching institutions. The course willbegin with a two-day symposium,where international guest lecturerswill provide the theoretical basis forfurther discussion. The following;week will offer ample opportunityfor practical training and theexchange of ideas."

Further details from:EvaHood

Goteborgs Universitet, VasaparkenS-411 24 Goteborg, Sweden

Tel: 010 46 31 773 1862 (fax: 4660)

28

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Austria

Sandra Lang; lecturer, English Dept, University ofEconomics & Business Administration; Vienna

Canada

Alberta Law Refonn Institute; Edmonton

Law Reform Commission of Nova ScoUa; Halifax

Ministry of the Attorney General (Law ReformCommission); Vancouver, BC

Ministry of the Attorney General (LegislativeCounsel); Victoria, BC

Senate of Canada; OttawaJoy Tataryn; editor, writer and communicator; Vancouver

England

Christopher Hall; solicitor; CirencesterStephen Levinson; solicitor, Paisner & Co; London EC4

John Richman; clerk to the justices; Sheffield

Richard Thomas, an early member ofCLARITY, hasrejoined. He is now director of the Public Policy Group at

Clifford Chance.

Malta

CLARITY SEMINARSon writing

plain legal English

We have now given nearly 30 seminars to a selectionof firms of solicitors, to law societies, and to thelegal departments of government departments, localauthorities, and other statutory bodies. Delegateshave ranged from students to senior pa:.'1ners.

The seminar has slowly evolved since we began twoyears ago, but it remains a mixture oflecture, draftingpractice and discussion. It is accredited under TheLaw Society's Continuing Education scheme.

The fee is £500 + expenses + VAT for a haIf-day,with long-distance travelling an extra.

Contact Mad<: Adlcr at the address below.

BACK NUMBERS

of Clarity are available at the following prices:

Or David Fabri; lawyer; general manager, MaltaInternational Business Authority; consumer protection

consultant to government

Thailand

Issues 1-45-1112-2425-26

£1 each£1.50£2£3

David Lyman; lawyer, TiIleke & Gibbins; Bangkok

CLARITYnow has 432 members in 19 countries

Please add 20% for handling and postage[or supply sae or OX envelope (inland)

or send international postal coupons (overseas)]

Mark Adler (chairman)

Prof Patricia Hassett

Alexandra Marks

Justin Nelson

Mrs A1ison Plouviez

28 Claremont Road, Surbiton, Surrey KT6 4RFOX 57722 Surbiton

837 Millbank Tower, Millbank, London SWIP4QU

Linklaters & Paines. 59 Gresham Street. London EC2V 7JA ,OX 10. London

Meridian House, St Oavid's Bridge, Cmnbrook, Kent TN17 3HLOX 39008 Tenterden

The Law Society, 50 Chancery Lane, London WC2A ISXOX 56 London/Chancery Lane

0813399676Fax: 0813399679

071217 4282Fax: 0712174283

071606 7080Fax: 071606 5113

0580714194Fax: 0580714909

0712421222Fax: 071 831 0057

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