The Scottish Government

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CHAPTER 3
INTERNATIONAL COMPARISONS

The plain language movement has begun to influence the way in which legislation is drafted across the world. Many jurisdictions are now publicly committed to producing legislation in clear and concise language. In some cases the impact has been more significant than others.

United Kingdom

A glance at recent Acts indicates that UK legislation is drafted in plainer language than was once the case. One of the most significant developments has been the establishment of the Inland Revenue's Tax Law Rewrite - a major project to rewrite almost all tax legislation in language which is plainer, and in a simpler structure, than that adopted in the legislation it replaces. The project has been ongoing since 1996 and has produced numerous draft Bills, three of which have been enacted ²⁰, which aim to make direct tax legislation clearer and easier to use without changing the law. ²¹

The Scottish Parliament adopted a design for its Bills and Acts which is similar in style to that used in the Tax Law Rewrite Project and is more user friendly than the form previously used for Scottish legislation enacted at Westminster. The UK Parliament also adopted a new more readable format for UK statutes in November 2000, although it is worth noting that the typographic font chosen was a compromise between the Lords and the Commons and is not the preferred choice of either.

The Scottish Law Commission and the Law Commission for England and Wales both strive, sometimes working together, to recommend ways to improve, simplify and update the law. The Scottish Law Commission considers that outdated or unnecessarily complex law makes for injustice and inefficiency and leads to the law being out of step with the needs of ordinary people. It considers consolidation to be a vital element of law reform.

The ability of the law commissions to reform the law free from many of the political and parliamentary pressures on style and time allows them to take a more systematic and coherent approach to law reform and many consolidations have begun life as Commission Bills. Both law commissions regularly produce draft legislation and recommend it to the government. ²²

Ireland

In December 2000 the Irish Law Reform Commission, in its report "Statutory Drafting and Interpretation: Plain Language and the Law", recommended that "a comprehensive programme of reform of Irish law, with a view to replacing existing statutory provisions with alternatives expressed in plain language, be undertaken". The report encourages the use of familiar and contemporary language and shorter and less elaborate sentences but recognises that "this aim should not be achieved at the expense of legal certainty". ²³

The Irish Government had already recognised the need to modernise the Irish statute book. It issued a report in 1999, "Reducing Red Tape - An Action Programme of Regulatory Reform in Ireland" ²⁴, as part of its "cutting red tape" initiative. The Government supplemented that report in the detailed action programme set out in its 2004 White Paper, "Regulating Better", which proposes clarity and accessibility of regulations as the key to better legislative regulation. ²⁵

The Irish Government also established a Statute Law Revision Unit in 1999. It forms part of the Office of the Attorney General and has legislative drafters assigned to it from the Office of the Parliamentary Counsel in Dublin. The SLRU's aim is to consolidate, streamline and simplify Irish statutes and to make legislation more accessible to the public. ²⁶ The SLRU's programme of statute law restatement gives priority to groups of connected statutes which are considered most likely to benefit from being restated in a more simple and coherent manner.

The first of the SLRU's recommendations paved the way for the Statute Law (Restatement) Act 2002 ²⁷. That Act allows Ireland's Attorney General to consolidate and restate legislation in a more readable format, and to make those restatements available in printed and electronic form, without having to guide a Bill through the Irish Parliament. Administrative restatements prepared under the Act are " prima facie evidence of the law contained in the provisions to which they relate" ²⁸ and must be judicially noted. Restatements do not however alter or otherwise affect the substance or operation of those provisions.

Jersey

The Jersey Legal Information Board was established in 1998. One of its main aims is to make the law and legal processes more accessible to the public. To this end it engaged an Australian Law Revision Commissioner to revise all legislation in force. The first revised edition came into force on 1 July 2005 and is arranged in 26 chapters by topics such as Courts and Legal Services, Crime and Sentencing and Financial Services. The intention is to update the revised edition on an annual basis. ²⁹

The Law Revision (Jersey) Law 2003 provides that the revised version is the "sole authentic edition of the laws of Jersey". That Law gave power to render all enactments gender neutral, to renumber frequently amended text, to update cross-references and to correct typographical and similar errors of no substance.

New Zealand

One of the functions of the New Zealand Law Commission is to advise the government on ways in which the law of New Zealand can be made as understandable and accessible as is practicable. In making recommendations it is required to have regard to the desirability of simplifying the expression and content of the law. ³⁰

The Commission published a report on the format of legislation ³¹ which was advanced and refined by a Steering Committee comprising representatives from the Commission, Office of the Clerk, Inland Revenue Department, Legislative Printers and the New Zealand Parliamentary Counsel Office. It decided that it would be appropriate to survey the views of a broad cross-section of users of legislation before implementing changes. The Parliamentary Counsel Office then consulted users of legislation (including members of the New Zealand Parliament, the judiciary, academics, private and public sector lawyers, librarians, legal publishers, and interested members of the public) on the format of legislation and, after consideration of representations, a new format for legislation was introduced in 2000. ³²

The New Zealand Parliamentary Counsel Office is also committed to improving access to legislation ³³ and one of its objectives is to ensure that legislation is drafted as clearly and simply as possible. The Office also operates a programme of reprinting legislation in consolidated form. Key users of legislation are consulted to identify which laws they would most like to be reprinted. Statutory powers authorise editorial changes to be made in a reprint ( e.g. changes in format and punctuation and removal of referential words) to allow it to appear in a format and style consistent with current legislative drafting practice but changes to the effect of the legislation are not permitted. ³⁴ Reprints are presumed to correctly state the law as at the date of the reprint. ³⁵

The extent of the reprinting programme has become even more ambitious in recent years. The Public Access to Legislation Project is designed to improve the way in which New Zealand legislation (including Bills) is made available to the public. The ultimate aim is to provide public access to up-to-date official legislation in both printed and electronic form. Unofficial versions of legislation have been available free on the internet since 2002. New Zealand's Parliamentary Counsel Office is now undertaking a process under which the legislation is to be given authoritative status. ³⁶

Australia

The various legislative drafting offices in Australia have deliberately manoeuvred away from the drafting style inherited from the UK. They consider that style to place too much emphasis on precision and not enough on simplicity and to be typified by badly constructed sentences and outdated words and phrases. ³⁷

The Victoria Law Reform Commission was one of the main drivers for change in the style of Australian legislation. Its reports in the late 1980s and early 1990s recommended the establishment of a legislation rewriting programme using plain language and proposed changes to the design of legislation. ³⁸

The Australian Parliamentary Counsel Office is committed to drafting Australian legislation in as clear as style as possible and has produced a working guide on drafting approaches and a plain English manual. ³⁹ All of the Australian state drafting offices also now subscribe to the principles of plain language drafting and many have an official plain language policy.

Two major projects, the Corporations Law Simplification Program ⁴⁰ and the Tax Law Improvement Project, were undertaken in the 1990s with the purpose of rewriting and simplifying the legislation governing two of the most complex areas of law. Individual enactments on topics such as social security, care for the elderly and offshore mining have also been rewritten - demonstrating that even legislation in highly technical areas can be translated into a much more readable form. The experience has also demonstrated that even expert readers can benefit from efforts to make the legislation they work with easier.

Canada

The Canadian Legislative Drafting Conventions are designed to standardise the way in which statutes in Canada are drafted. They adopt many of the principles of plain language and state that legislation should be written as much as possible in ordinary language suitable for its intended audience.

The Conventions are sanctioned by the Uniform Law Conference of Canada, a national organization of lawyers, legal academics and judges whose aims are to modernize and harmonize Canadian law. ⁴¹ Most of the drafting offices across Canada, including the Legislative Services Branch of the federal Department of Justice, are guided by the Conventions when drafting and some have policies of drafting in plain language.

Canada is dual lingual and, although the Conventions originally applied only to the drafting of the English versions of legislation, they now extend to the French text also. The experience of trying to use both plain English and plain French has had some interesting consequences - for example, experiments with the technique of setting out headings in the form of questions revealed that it is not particularly effective in French where questions tend to be lengthier.

The Canadian Government embarked on a pilot project in 1995 to rewrite regulations covering family fireworks in a more reader-friendly form. The resultant Consumer Fireworks Regulations were tested with retailers and consumers to see if they were clear and easy to understand. The project was considered a success and the government are now committed to rewriting all Canadian explosive regulations in a more simple style. ⁴²

The Canadian Government have also embraced an initiative to rewrite the Employment Insurance Act, a statute providing insurance against unemployment which was considered to be one of the most difficult federal laws to understand. The project's goal is to make this important piece of social legislation more user-friendly and easier to understand while preserving its current fundamental provisions and program principles. As part of the project a consulting firm that specialises in graphic design and communication was commissioned to prepare an independent report on design principles and methods used to improve public access to the law. Another independent firm undertook an extensive study on the readability and usability of plain language draft versions of the Act and reported back evidence that showed a clear preference for the plain language versions over the existing Act. Once completed, the rewritten Employment Insurance Act prototype is expected to serve as a model for future drafting of federal statutes. ⁴³

Sweden

Sweden has a long association with plain language drafting. As far back as 1713 the King told the Royal Chancellery to "endeavour to write in clear, plain Swedish". Successive Swedish governments have made using plain language in legislation a high priority for almost 40 years. A recent Ministry of Justice publication pronounced that "a democracy must ensure openness and clarity within the public administration and guarantee that documents are written in a way that meets the readers' needs" ⁴⁴. The Swedish way is to lead from the front - the idea being that modernising and simplifying legislation will have an impact on the language used in all administrative government documents.

The Office of the Director-General for Legal Affairs, which forms part of the Swedish Prime Minister's office, coordinates legal and linguistic issues and is responsible for ensuring that the language used in legislation is as clear and simple as possible. A linguistic expert was first appointed to the Cabinet Office in 1976 and now a team of linguists and lawyers form the Division for Legal and Linguistic Draft Revision at the Ministry of Justice. The Division review and comment on all government Bills and its approval is needed before they can be printed. The Division also produce guidelines on clear writing, provide training to legal drafters and work with law commissions appointed to redraft legislation.

On joining the European Union the Swedes were disappointed to discover how difficult it was for readers to digest the Swedish translations of directives and regulations. The Swedish government swiftly appointed linguistic experts to advise the Commission on how to simplify European laws, or at least the Swedish versions of them. Sweden wishes to instil a new drafting culture within the EU and, in particular, considers that the old tradition of writing for experts rather than for the citizens of the EU must be changed.

European Union

The European Council of Ministers' resolution of 8 June 1993 on the quality of drafting of Community legislation ⁴⁵ states that the general objective of making Community legislation more accessible should be pursued by making systematic use of consolidation and also by implementing certain guidelines. The criteria against which Council texts should be checked as they are drafted are that-

1. the wording of the act should be clear, simple, concise and unambiguous; unnecessary abbreviations, 'Community jargon' and excessively long sentences should be avoided;

2. imprecise references to other texts should be avoided as should too many cross-references which make the text difficult to understand;

3. the various provisions of the acts should be consistent with each other; the same term should be used throughout to express a given concept;

4. the rights and obligations of those to whom the act is to apply should be clearly defined;

5. the act should be laid out according to the standard structure (chapters, sections, articles, paragraphs);

6. the preamble should justify the enacting provisions in simple terms;

7. provisions without legislative character should be avoided (wishes, political statements);

8. inconsistency with existing legislation should be avoided as should pointless repetition of existing provisions. Any amendment, extension or repeal of an act should be clearly set out;

9. an act amending an earlier act should not contain autonomous substantive provisions but only provisions to be directly incorporated into the act to be amended;

10. the date of entry into force of the act and any transitional provisions which might be necessary should be clearly stated.

The interinstitutional agreement on common guidelines for the quality of drafting of Community legislation ⁴⁶ builds on these drafting guidelines. It adopts general principles covering both the drafting techniques to be used within Community legislation and the structure of Community acts. Many of the principles coincide with those of the plain language movement. The first three state that-

Further support is given to the Council's drafting guidelines by the practical guide for persons involved in the drafting of legislation within the European institutions ⁴⁷.

Despite these measures many consider that abstract and baffling provisions continue to plague European Community legislation. The impact of multilingualism on drafting quality should not be discounted but the proliferation of Euro-jargon does not assist the cause. The Swedish presidency in 2001 reignited the drive for use of plain language in European law and in 2002 the European Commission presented an Action Plan for "simplifying and improving the regulatory environment" ⁴⁸. It stresses the importance of transposing Community legislation more effectively and proposes a programme to simplify and update the existing body of European law.

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