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CHAPTER 2
DRAFTING LEGISLATION IN PLAIN LANGUAGE
Audience
The focus of plain language writing is the reader. Anticipated readership will influence the author of any document when choosing linguistic style and in deciding how best to set out text. Specialist writings (such as medical or architecture journals) will often adopt language with a meaning which is self evident only to those with knowledge or experience of the topic in hand. It is generally accepted that only a relatively small proportion of the public ever read Bills or Acts and those that do usually appreciate the need to consult a legal expert in order to understand them. Public law nevertheless has the potential to, and in many cases does, affect the rights of every citizen. It is for that reason that the case for the average person with no specialist knowledge being able to understand legislation is compelling.
Legislation differs from many other types of formal writing in that it has a very disparate potential audience. It is also unusual in that it has two distinct stages of existence, as a Bill and as an Act, and its readership differs at each stage. Bills are read by parliamentarians and others skilled in the ways of parliament. Parliamentarians come from a wide range of backgrounds. Not all have formal legal training or experience. But they should all be able to make sense of the laws they are being asked to enact. The increasing involvement of lobby groups and interested individuals, during both pre-legislative consultation and parliamentary scrutiny, means that a drafter may also have cause to consider the needs of those likely to participate in the legislative process when deciding the form and content of a Bill.
It is the practitioners in the field regulated by a Bill who will read and use it once it becomes an Act. Drafters must in all cases assume that legislation might at some point become the subject of litigation and for that reason the needs and practices of lawyers and judges are always considered. Designing legislation primarily for those who may be involved in litigating on its terms may however reduce the chance of it being understood by the persons it will affect directly. Some laws are unlikely ever to face challenge in a court and will have most practical impact on practitioners in a field or on those who are required to administer. The people administering legislation or seeking to operate in accordance with it may include such diverse groups as the police, health inspectors, planning officers, school inspectors, trade unionists and company directors.
Drafters who consider who can reasonably be expected to read and make use of legislation are more likely to strike the appropriate balance. Style and language can be varied to suit the topic of a particular piece of legislation. Certain legislation will be more relevant to particular types of bodies or individuals and, where it is, the needs of those particular users should have more weight. Doing so may allow drafters to assume a commonly held knowledge of the topic of the Bill and, in some cases, of the legal rules which underpin it.
Clarity and accuracy
The main purpose of legislation is to create or amend law in a manner which implements policy accurately and effectively.
The precise nature of legislation in the UK is a reflection of the historical and cultural context within which it has been enacted. The style contrasts dramatically with the more generalised drafting approach adopted in European nations with legal systems rooted in civil law. The expansive and detailed UK statute book reflects the Westminster Parliament's traditional dual desires to impose an effective shackle on the executive's power and to ensure that those affected by the law know how it applies in differing circumstances. And the judiciary's tendency to interpret legislation narrowly means drafters throughout the UK have long followed Lord Thring's observation that they must seek to attain a degree of precision which a person reading in bad faith cannot misunderstand and that it is even better if they can prevent the reader from being able to pretend to misunderstand 13.
Although Scots common law has much more in common with continental civilian tradition than its English counterpart the fact that responsibility for legislating for Scotland lay with the Westminster Parliament for almost 3 centuries means that the degree of precision in Scottish Acts reflects that which appears in Acts which apply to other parts of the UK (not least because many Acts apply to the UK as a whole). The establishment of the Scottish Parliament has presented an opportunity for divergence in the style of Scottish legislation and it has been noticed that Acts of the Scottish Parliament seem to be remarkably short and succinct compared with legislation enacted at Westminster albeit that factors other than drafters drawing on the civilian traditions of Scots law may be at least partly responsible for this shift. 14
The desire for legal certainty and the accompanying pressure to legislate for every imaginable scenario means that the need for absolute precision has become paramount. The statement made in the Renton Committee's Report that a drafter "must never be forced to sacrifice certainty for simplicity" 15 still holds good today. But the once commonly held view that the principles of plain language conflict with the need for accuracy has now lost much of its credence. Clarity and certainty are now more accepted as comrades rather than as enemies - a drafter striving to make elaborate propositions as clear as possible need not compromise one for the other.
It is a common misunderstanding that plain language drafters prefer to legislate in general principles rather than by elaborate detail. Plain language drafting need not be any less precise in its substantive effect. Seeking ways to make the law clearer and more comprehensible will often reveal flaws which may otherwise remain hidden beneath the surface of more obscure provisions.
Plain language therefore has a big role to play when shaping legislation which needs to regulate with pinpoint accuracy. It can, for example, be a guard against what has been described as "false accuracy" 16, a phenomenon which manifests itself when over-precise attempts to cater for every scenario lead to unintentional anomalies or infelicities. General legislative propositions which go on to deal specifically with an improbable case may make courts disinclined to fill the legislative gap when asked to apply the general provision to an improbable case which was not similarly anticipated.
Complexity of law and topic
The law is highly intricate and technical and all legislation requires to be written and read in that context. An individual Bill or Act cannot be fully understood on its own. The law it creates weaves into and must be read together with both the common law and other legislation on the statute book. The myriad of laws with which each piece of legislation interacts consists not only of substantive law but also rules on statutory interpretation which can influence or determine the meaning of a legislative provision.
Some areas of law are particularly sensitive in political terms. This can lead to successive administrations continuously amending certain statutes. Heavily amended legislative text may eventually start to creak under the weight of the extensive change as any coherence in the structure of the original text is lost.
Added to these difficulties is the fact that the subject-matter of legislation can be difficult to understand. There are some laws which can be set out by way of a few simple propositions. Other topics do not lend themselves to being regulated in such a straightforward manner. All but the simplest changes to the law in some areas can often result in an intricate web of linked propositions and exceptions which appear impenetrable to the untrained eye.
The aim of plain language drafting is not to make matters simple but to express them in the simplest way available. This distinction can seem lost to those who continue to argue that loss of accuracy is a fundamental flaw in plain language drafting. Some subject-matters are inherently complex and it must be accepted that it may not be possible to legislate on those matters in a way which everyone can easily understand. Perhaps the main advantage of plain language is that describing certain concepts in simpler ways will increase the likelihood of them being understood.
Despite protestations that plain language cannot be used in relation to the most complicated matters the opposite has been shown to be the case. The topics chosen for plain language rewrites are usually the most highly technical - tax and company law being the principal examples. The general success of rewrite projects demonstrates that using plainer language can make any area of law more accessible. More details of rewrite projects are given in chapter 3.
Precedent and consistency
The key role of legal precedent in the development of any legal system is a major inhibitor to the modernisation of the language used in legal documents. Policy makers, lawyers and others working in a sector governed by a particular area of law tend to be more comfortable with the retention of existing language which has a well established meaning.
Entrenched language gives the certainty which people seeking and relying on legal advice wish to have. This in turn makes lawyers cautious about deviating from long established terminology. The reluctance to modernise established terms is perhaps understandable when considered together with the degree of scrutiny to which words in a legal document may be subjected.
Clinging to the safety blanket of precedent can however be a mistake. The English language is particularly diverse and develops over time. The modern populace is less likely to understand legislation which fails to develop alongside the language. Inertia in changing legal language to suit the needs of the time explains the preponderance of antiquated words and Latin in legal documents.
Drafters can usually devise innovative ways of restating or referring to established rules or concepts which will make them more understandable to the modern day reader but will not change their meaning. But there is always a risk associated with change - there is often much to be said for the continued use of words with a well established legal meaning and any difference in the wording of a law will be analysed closely.
It is often presumed that a substantive reason lies behind every legislative change - Parliament does not legislate in vain. This presumption can result in the courts finding reasons for different approaches which were not in the minds of those who made the changes. But the courts are now more likely to treat a desire to make the law more understandable (or to at least make it as understandable now as it was at the time it was originally created) as a valid ground in itself for change - a trend which encourages drafters to take a more robust approach to modernising legislative texts.
Only those who understand an existing regime fully are likely to benefit from a failure to excise old-fashioned language from legislation or to otherwise improve the intelligibility of the law. And even they would probably agree that the longer term advantages of moving to new prose which is easier to read will outweigh any short term costs incurred in adjusting to a modernised system.
Political and parliamentary considerations
The way in which legislation is made has inevitable consequences. Because of the constraints under which legislation is prepared, and in particular the need for legal certainty, legislation tends to be written in a rather dull style. This does not always complement the fact that legislation can be a vehicle for delivering core political objectives. There can be pressure to ensure that new laws are presented in a manner which best conveys the desired message of the day. Those with an interest in legislation in Bill form are likely to have far sharper political antennae than those who will read and use the resultant Act.
The authors of most written works use language which they hope will captivate and generate interest among their potential audience. The writers of policy documents differ little in this regard from those who produce literary fiction but the techniques commonly employed to harness a reader's interest are rarely available to the legislative drafter. Reliance on examples, metaphors, repetition, nuances or implications to communicate a message would only increase the chances of legislation being misinterpreted. Many plain language techniques will however complement and often improve the sometimes terse style of the more traditional legislative monotone without necessarily making the text any more pleasurable to read.
It may however be crucial in political terms for a Bill to convey the right message. A Bill will not serve its purpose if it does not gain favour amongst those asked to enact it. The injection of politically attractive material can make Bills more attractive to those whose role it is to extol its virtues. There is sometimes little to be gained, and there may be much to be lost, by translating political rhetoric into the plainest possible language. The pressure to use jargon which has become inextricably linked with a policy idea will, for example, sometimes be irresistible. And using previously uncommon words or phrases in legislation can by itself catapult them into the mainstream.
There may therefore be sound political reasons for striking a balance between plain language and language designed to make a Bill appealing to those debating its merits. The political worth of material intended to make a Bill's effect more palatable to legislators and so ease its parliamentary passage is frequently negated by the time the Bill becomes an Act. It is perhaps more important to use plain language in Acts than in Bills but (short of consolidation) there is no scope for reworking legislation once it has left the political arena and entered the statute book.
The necessary exposure of Bills to the parliamentary process can also affect their style. Amendments proposed during parliamentary stages are invariably designed to deal with a specific issue. The increasing involvement of lobby groups and other external interested parties can mean that changes to particular provisions of a Bill may be sought to emphasise the importance of a range of varying agendas. This can lead to certain provisions being developed in a more expansive style. Bills are initially drafted as a whole: they should be internally consistent and capable of being read as a single cohesive document. The tension caused by the political reality of amendments focusing on specific issues has the potential to undermine a Bill's original structure.
Democracy demands that the coherence of a Bill's internal structures must yield to allow Parliament to resolve individual issues as the Bill progresses. The overall structure of most Bills can withstand a few amendments and all Bills can of course benefit from amendments which improve clarity. Accommodating numerous amendments within a Bill is more likely to affect its internal consistency, particularly if those amendments emanate from a variety of sources and deal with topics distant from the original subject-matter.
The way in which a heavily amended Bill hangs together can perplex a reader of the subsequent Act who is unaware of its legislative history. The adverse effect can be alleviated to an extent if the drafter of the Bill prepares the amendments but even then the partisan nature of the legislative process can add pressure to formulate amendments in a way which is more designed to gain approval for the proposed change than to sit easily with the existing style of the Bill.
Legislative timetables can also affect the way in which Bills are drafted. The drafting of Bills is not easy. The high political priorities driving legislation and the desire to publicise and implement swiftly mean that the pursuit of the primary and most important aim - the delivery of legislation which implements policy accurately and effectively - may take up all of the time allocated to the drafter. Extra time might be needed if the drafter is to give added consideration to how effective text can be made plainer: a luxury which is rarely available. The Hansard Society Commission on the Legislative Process observed in 1992 that Bills then being introduced in the UK Parliament were often "half-baked" 17 with a later commentator adding that the partisan legislative process means that Parliament is not usually a competent enough cook to prevent those Bills from emerging still half-baked, or worse 18. There has, since then, been a steadily increasing amount of pre-introduction consultation and scrutiny of Bills with a view to improving matters.
Governments are entitled to expect implementation of their policies without delay and legislatures have the democratic right to the final say on the way laws are expressed. The desire to produce clear, coherent legislation is not the only consideration for either. It is not a mere coincidence that plain language rewrite projects across the globe tend to be shielded from the pressures associated with the highly political process of making law. The substance of provisions is often outwith the ambit of rewrites. The drafters responsible can then be afforded the luxury of control of both timescales and content and need seek parliamentary approval only where the simplification of existing law reveals an ambiguity or error which requires to be rectified.
Textual amendment of existing legislation
One aspect of legislation which distinguishes it from almost all other types of written work is the use of textual amendment as a mechanism to change or repeal existing law. Even if provisions which use this technique are drafted in simple language they will still baffle a reader who does not have access to the legislative text being amended.
This is a good example of different audiences with different needs. A restatement of the law being amended enables the readers of a Bill to understand the changes proposed. Lawyers and others interested in an area of law who read Acts would rather have all related legislation in one place in consolidated form. Navigation through the statute book would be almost impossible if legislation on each topic were to be scattered across it haphazardly.
It is for the drafter to consider, on a case by case basis, whether it is preferable to restate or textually amend existing legislation. Matters which influence this decision will include the amount of new material needed. The language used to express the existing law will also be relevant: restatement can be a good way to modernise outmoded provisions.
The availability of a consolidated statute book will influence the arguments for and against restatement. HMSO now publish all legislation as it is passed in the UK and make it available for free on the internet 19 but there is at present no up to date consolidated version of UK legislation available to the public free of charge. Some commercial organisations provide electronic access to consolidated legislation and some publish printed versions of consolidated legislation by topic. Neither, of course, comes free of charge and unofficial versions of legislation are not authoritative. Until legislation is freely available in consolidated form, added weight will always be given to arguments for restating legislation rather than textually amending it.
Another practical consideration is that restating law may cause it to be subject to parliamentary scrutiny even though there is no intention of amending it. In cases where rules govern admissibility of amendments on grounds of scope, restating provisions can open up topics to parliamentary debate which would otherwise need to be dealt with by way of another Bill. So it is proper to take account of potential handling difficulties and the fact that valuable parliamentary time may be needed to debate law which the Bill's proposer does not wish to change. Politicians would consider it unfortunate, to say the least, if their legislative objectives were compromised solely because of the drafting techniques selected.
Consolidation and codification
The ultimate form of restating legislation is consolidation. Consolidating all existing legislation on a topic brings with it the opportunity to consider how it can best be recast for the benefit of those who will use it. The fact that consolidation does not change the law means that special parliamentary procedures can be used to approve consolidated law; and there is usually some procedural flexibility to make minor changes of substance.
Legislation can also be codified although codification is more usually associated with formalising the common law. Codifying is distinguishable from consolidating in that codification can change the substance of the law on a topic when it brings it together.
There is undoubted value in having all the law on a particular topic included in a single document. The processes of consolidating and codifying can be used to free the law from constrictions imposed by the existing legal framework. There is no need to attempt to fit in with earlier drafting styles or judicial language, some of which may be decades or even centuries old. There is also scope for cleaning up the structure of existing legislation, some of which may be straining under the weight of textual amendments, and for negating doubt over potentially conflicting judicial decisions.
A common drawback to both consolidating and codifying is the amount of resources they consume. It is not just the cost of redrafting which needs to be considered. There are resource implications associated with the parliamentary consideration of the legislation. And advisory professionals, administrators and others who interpret, use or enforce the existing regime will all need to take steps to adjust to the new format even if the rewrite does not change the law.
Consolidation may not of itself deal with the reasons why the consolidation is needed ( e.g. continuously developing underlying policy causing heavy amendment). So the likelihood of consolidated law continuing to be modified, and eventually needing to be consolidated again, is sometimes considered before resources are given to a consolidation project.
Codification of common law carries with it other disadvantages. Despite being drafted with the aim of producing precise and clear law, legislation cannot predict and cater for the minutiae of each potential dispute. The flexibility of the common law is arguably better suited to delivering natural justice in individual cases. So in considering whether to codify common law there is often a fine balance between the advantages of retaining the flexibility inherent in the common law system and those associated with replacing it with more prescriptive legislative rules.
In practice, the democratic nature of legislating may tip the balance in favour of codifying but additional barriers can arise. Although the attraction of establishing a cohesive set of general rules may have obvious benefits, a codification of common law will inevitably be less detailed than the law being replaced and may therefore give the executive and judiciary greater discretion to apply the law as they think fit. The giving of such discretion may not be welcomed by parliamentarians accustomed to legislating in particularities rather than in more abstract principles.
The challenge for legislative drafters
It is difficult to come across anyone, be they a politician, lawyer, academic, administrator or anyone else who deals regularly with legislation, who now disagrees with the main tenets of plain language legislative drafting - that the law should be expressed in the simplest terms available and in a way which communicates directly and effectively with as much of its intended audience as possible.
Trying to express complex legal propositions in language that is both precise and plain is not however a straightforward task. The diversity of the potential readers of legislation, the need for legal certainty, the role of legal precedent and other constraints associated with the peculiar form of writing that is legislative drafting can all conspire against drafters who pride themselves on both the accuracy and lucidity of their texts.
The challenge for legislative drafters is to produce law which not only implements policy effectively but which does so in a manner which is self evident to all those who can reasonably be expected to read and use both the Bill and the Act. Drafters will always need to frame legislation robustly enough to allow it to withstand the intense scrutiny of legal challenge. They should ideally try to ensure that it is incapable of being misconstrued, even in bad faith. Using plain language helps the drafter to create clear, unambiguous law. Good drafters will also try to anticipate the potential audience and adapt style accordingly. Aiming to write and present legislation in a style which makes it accessible to parliamentarians enacting it, administrators responsible for operating it, courts required to interpret it and all others whose rights it may affect means that it will usually have a better chance of achieving its goals.
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