« Previous | Contents | Next »
Listen
CHAPTER 4
PLAIN LANGUAGE TECHNIQUES
This chapter sets out numerous techniques currently associated with plain language drafting. Legislative drafters adopt many different techniques and approaches in searching for the plainest possible approach. There are few techniques which all drafters agree to be of benefit in every circumstance. Some are almost universally approved, some are used occasionally and others have been considered but mostly rejected as incompatible with the drafting of legislation. There is agreement in one respect - applying plain language techniques is not intended to change the substance or accuracy of text. It just makes it easier to read and understand.
Most of the world's legislative drafting offices encourage the use of plain language and support the use of many of the techniques set out in this chapter. A few of those offices have produced drafting manuals aimed at harmonising the way they draft legislation but opinion on whether drafting manuals are useful is sharply divided. Some drafting offices take the view that manuals can restrict a drafter from attempting experimental drafting techniques for fear of being accused of diverging from best practice. It is arguable that it is such barriers to innovation that have given the law a reputation for being unable to adapt to the times.
Plain language is only one aspect of drafting - no manual can ever predict all of the scenarios which drafters will face. Manuals which attempt to be comprehensive can edge towards being unwieldy. Some drafting manuals are more prescriptive than others but, although lists of techniques can resemble a rulebook, it is generally accepted that they should never be viewed as more than an indication of good practice.
Drafting legislation will always be an art rather than a science. Each proposed law requires to be considered individually and according to specific circumstances. It is ultimately for the individual drafter to determine the words, grammar and style to be used in each circumstance. There may be strong reasons to depart from rules of thumb in particular cases: justification for doing so may stem from political priorities or there may simply be a better way of achieving a clear and effective result. Most drafters agree that, manual or no manual, the only edict which a drafter should ever be true to is that nothing should hinder the drafter's flexibility in deciding how best to implement a legislative goal clearly and effectively.
Some techniques which are peculiar to legislation (textual amendment, restatement, consolidation and codification) are commented on in chapter 2 and are not elaborated on here.
VOCABULARY, GRAMMAR AND STYLE
General
Choose words that are plain and commonly understood.
Technical terms and jargon understood by particular groups only should be avoided where possible; or at the very least explained in ordinary language.
Short words are usually better than lengthier alternatives - but a clear long word will always be better than an obscure short one. The substitution of one short word for a longer one may not improve readability significantly but seeking to use shorter words wherever possible is likely to produce a simpler overall style.
Good grammar is an essential element of plain language. There are however occasions where the breaking of certain strict grammatical rules can improve the rhythm and meaning of text. There may for example be cases where a sentence flows better if it starts with "And", "But", "Because" or "So". And there are probably limits at which drafters can split an infinitive to achieve a more naturally flowing proposition.
Archaic words
Archaic words should be replaced with modern alternatives. Some words are more outdated than others so a degree of judgment is needed, but words considered archaic by the Oxford English Dictionary should not be used unless exceptional circumstances mean an alternative will not suffice.
Legal words generally considered to have served their time include "aforesaid", "forthwith", "foregoing", "hereinafter", "notwithstanding", "said", "therein" and "whatsoever".
Descriptions (particularly interpretative labels of groups of people) can come to be considered stigmatising, offensive or politically incorrect over time and, if so, should not be repeated in subsequent legislation on the topic unless absolutely necessary.
Use English
Latin words and phrases are to be shunned. Where possible use an English translation for established Latin maxims ( e.g. use "of its own accord" rather than " ex proprio motuï¾"). This practice should be followed even if the translation increases the length of the provision ( e.g. "by reason only of holding the office" is preferable to " ex officioï¾"). Latin which has become English ( e.g. "vice versa", "per cent") may be used.
Neologisms
New words should be avoided. It is not however unknown for legislation to be the vehicle by which new words enter the common vernacular.
Initialisms and acronyms
Initialisms and acronyms, used sparingly, can be helpful to the reader; especially when used for proper names ( e.g.UN, UK, GCHQ, SQA, SNH).
They nearly always need the support of a definition immediately after the first occurrence of the whole name or phrase which they represent.
Consider whether an alternative shorthand reference would better communicate meaning to the reader - e.g. would "the Commission" be clearer shorthand than "the DRC" for the Disability Rights Commission?
Symbols and abbreviations
Common symbols (such as "£", "%") shorten text and can make it easier to read.
As can easily understandable abbreviations (such as "para.", "no.", "vol.",). Potential readership may even justify breaking the "no Latin" dictat in the case of some instantly recognisable abbreviations with Latin masters (such as " e.g.", " i.e.", "etc." or "a.m./p.m.").
Clichés etc.
Legislation is not the place for clichés, puns or metaphors.
Voice
The active voice is nearly always preferable to the passive ( e.g. "a director must sign the document" reads better than "the document must be signed by a director").
There are circumstances where writing in the passive may be preferable - two obvious examples are the avoiding of gender specific reflexive pronouns ( e.g. "where the director is satisfied that …" is a gender neutral alternative for "where the director satisfies herself that … ") and the placing of strings of nouns after the verb in a sentence ( e.g. "the document must be signed by a director, the company secretary, a manager or any other authorised employee").
Adopt verbal style
Where an idea can be expressed with either a verb or a related noun the verbal style is usually both shorter and easier to follow ( e.g. "a person may apply to" rather than "a person may make an application to").
Tense
The present tense should be used wherever possible. The law should speak at the moment it is being construed.
Person
Some think that using the second person produces clearer law. It certainly helps drafting in an active voice but the readers of legislation include persons not affected directly by it ( e.g. judges, legal advisers, officials etc.) to whom references to "you" would be misdirected. Drafting in the third person therefore receives near unanimous support although there may occasionally be circumstances in which it may be advantageous to draft in the second person.
Singular rather than plural
It is usually better to draft in the singular, not least because drafting in the plural is more likely to result in ambiguity. Reliance can often be placed on interpretative rules which provide that the singular includes the plural and vice versa.
Possessives
The shortest form of possessive will generally appear and read best ( e.g. use "the person's" rather than "of the person" or "belonging to the person").
Negatives
Positive statements tend to be more intelligible than negative ones. Avoiding the negative is not always straightforward given the propensity of legislation to set out restrictions and prohibitions. Use of two or more negatives in a sentence should trigger consideration of an alternative drafting approach.
Synonyms
The common legal practice of using synonyms ( e.g. "null and void", "terms and conditions") should be avoided where a generic alternative exists. One word should usually suffice.
Care should be taken when using words with overlapping meanings if one presupposes the other ( e.g. due and payable). Series of related verbs ( e.g. "impede, hinder or block") deserve particular attention as the lengthier the list the greater the implication that another related word ( e.g. "obstruct") is excluded.
Duplicated nouns
The practice of repeating nouns in order to link directly with wording elsewhere can be baffling at first glance and is best avoided ( e.g. "a person to whom section 1 applies" is simpler than "a person who is a person to whom section 1 applies").
Shorthand references can be used to refer to an entity described earlier in a provision by two or more words ( e.g. "the authority" for subsequent references to "the local authority").
Be aware that "such" is not always considered to be an ideal demonstrative pronoun ( e.g. "those persons" and "that body" are often preferred to "such persons" and "such body").
Duplicated verbs
Where a provision has singular and plural subjects there is some support for making the verb agree with the subject which is closer to the verb ( e.g. "where the body or bodies have applied").
Numbers
The numbers "one" and, usually, "two" are nearly always expressed as words. When to convert other cardinal numerals into figures is personal style but it is becoming increasingly common to start as early as 3 or 4 (using Arabic numbers in preference to Roman).
Ordinal numbers have traditionally been expressed in words (perhaps because figurative expressions are considered to be an abbreviation) but there is no reason to avoid figures (1st, 2nd, 3rd, etc.).
Formality
The use of excessively formalised words is not often helpful ( e.g. "send by fax or e-mail" is simpler than "transmit by facsimile or electronic communication").
Shall, must, is to, will
Debate rages over use of "shall" or "must" when imposing duties. Preference for "must" is gaining momentum: many consider using "shall" to indicate the imperative mood to be more ambiguous as it is more commonly understood as a way of making a statement about the future than as a means of imposing an obligation.
Other options may be available if there is disagreement on preferred style ( e.g. "it is for", "is to" or "are not to").
Declarations and applications
The most criticised usage of "shall" is when it is used for declaratory or descriptive purposes ( e.g. "shall be guilty of", "shall apply").
Declarative use can however sometimes find favour because of the resonance it can add ( e.g. "there shall be a Scottish Parliament").
Conjunctions
Where provisions are divided into numerous paragraphs a reader may take some time to reach the conjunctive which follows the penultimate paragraph. Consider using techniques such as "in any of the following" or "in each of the following" to introduce lengthy disjoined or conjoined propositions.
STRUCTURE
Brevity
The shortest sentence which conveys the desired meaning will often be the most transparent. But there may be occasions where a longer sentence, or even two or more sentences, will give greater clarity.
Consider dividing any lengthy sections (although length of subsections is also relevant when considering a split). Making use of lists can be a good way of splitting information up.
Large passages of unbroken text can be particularly difficult to read. Where a single passage extends beyond 4 lines careful consideration should be given to whether replacing punctuation with tabulation will make the text clearer. If descent into over-tabulation compromises clarity, consider whether the proposition can be divided into more than one sentence.
Lengthy qualifying clauses should be dealt with by way of separate provision where possible.
Consideration may also be given to using more than one sentence in a subsection (but beware of causing problems with cross-references).
White space
The "white space" principle is sometimes used to indicate the readability of text. Increasing the amount of white space on a page will usually corresponds with an increase in the reader's ability to absorb the text set out on it. There are limits to the principle: unnatural breaks in text can jeopardise rhythm.
Sentence structure
Provisions tend to be more understandable if a subject-verb-object structure is adopted with the subject introduced as early as possible, preferably at the start of the provision.
Try not to split subject and verb with a qualifying clause. Similarly, try to keep the auxiliary and the main verb together.
Titles and headings
Part, schedule and particularly section titles can aid understanding.
Titles, including short titles, should be brief (to ease reference) but this should not prevent including words which are informative or ease indexing ( e.g. the "Education (Teachers' Salaries) Bill" may be preferable to the "Education Bill" or the "Teachers' Salaries Bill").
Drafting experiments which frame section titles as questions (sometimes coupled with drafting in second person) have been undertaken in rewrites of procedural legislation which the public at large are likely to use ( e.g. "How can a decision be appealed? - (1) You can appeal a decision by …"). But the technique has not caught on.
Italic headings can be used to divide parts and schedules into more manageable and identifiable chunks. Consider using italic headings within lengthy sections or schedule paragraphs (perhaps as an alternative to splitting sections).
Punctuation
Take care with punctuation but try not to place too much reliance on it. Consider restructuring a provision if a change in punctuation can alter its meaning.
IMPROVING READABILITY
Definitions
Define terms sparingly. Try to use words in their ordinary sense so that they do not need to be defined.
Do not define a term to have a meaning which is broader or narrower than its ordinary meaning without considering whether an alternative term can be used. Giving words unusual meanings is likely to create misunderstanding.
Definitions may be needed to avoid ambiguity where a term has different meanings (either by implication from use in other legislation or elsewhere). They can also be used to prevent excessive repetition of a phrase.
Any Bill with more than a few defined terms will benefit from a general interpretation section containing a comprehensive list of all terms defined in the Bill. Consider also whether it may be useful to set out the meaning of terms defined elsewhere ( e.g. in interpretation legislation) even if statutory interpretation make it strictly unnecessary.
An alphabetical index of terms can help navigation of Bills which use many defined terms.
It can be helpful to define a term near to where it is first used (with any general interpretation provision referring back to the principal definition).
Footnotes could be used to set out the meaning of terms on a page. Bold or underlined text can indicate when a term is defined for the purposes of the legislation in which it appears.
Examples
Examples can be used to illustrate the meaning of provisions. Text is often understood more easily when a context is given. But be aware of interpretative rules which restrict generality by reference to examples ( ejusdem generis) and of the more general danger of "false accuracy" ( see chapter 2).
Cross references
Legislation can often be expressed only by way of a series of linked propositions. Careful consideration should be given to whether links between provisions are necessary and, if so, how they are to be established.
Strict restraint should be exercised with cross-references. Consider restructuring legislation with excessive cross-references. Re-ordering propositions can often reduce the need to cross-refer.
There is no need to include words such as "of this Act / Part / section" in cross-references to the same Act, Part or section unless clarity will be compromised by other references in the provision. Similarly, there is no need to state whether a provision being referred to is above or below the cross-reference.
Subsections within a section (and sections that follow one another) should be read as a whole so there is usually no need to repeat material from or to refer to qualifying clauses in earlier provisions.
If a link between provisions is required, consider whether words such as "but", "despite", "however", "in addition", "instead", "concerned" or "in question" can be used instead of the more traditional legislative terminology such as "subject to", "without prejudice to", "notwithstanding" or "referred to in".
Global cross-references ( e.g. "subject to any other enactment", "subject to other provisions of this Act", "subject to section 2") are particularly burdensome on readers, especially if they do not have the relevant provisions to hand. Legislation should where possible specify which provisions are relevant.
Signposts
The purpose of a signpost is to be helpful to the reader by indicating a need to look elsewhere in order to understand a provision ( e.g. "see section 1"). Signposts are not, unlike cross-references, intended to have independent legal effect. They can be placed in parenthesis, or in margins or footnotes, and are therefore less damaging to the flow of provisions than cross-references. Most readers welcome the use of signposts so long as they are used sparingly enough to avoid distraction.
The intelligibility of textual amendments to existing enactments can be improved by inserting parenthetical descriptions of the provisions being amended to give the reader an indication of what the amendment does (or at least the subject-matter which is being dealt with).
Artificial concepts
It is best to try to steer clear of created concepts which force readers to look elsewhere for meaning ( e.g. "the relevant person", "the appropriate date").
Labels can however shorten provisions significantly: economy is a benefit which can outweigh other disadvantages. Distinctive labels which help the reader to imply their meaning can be a good compromise ( e.g. "the applicant", "the objector")
Formulas, diagrams, footnotes etc.
Setting out provisions applying or using mathematical concepts as algebraic formula can often make them easier to follow. Diagrams can also be used to make complicated procedural provisions clearer.
Footnotes can be used to prevent drafting needed for exceptional cases from cluttering provisions which will not usually affect those cases.
RELATED TOPIC
Purpose statements
The purpose or object of legislation can be set out within it, either as a preamble or as a provision stating its general purposes. There is substantial disagreement as to whether purpose statements are desirable. Some consider them to be a good way of informing readers of what the legislation intends to achieve and to illustrate how provisions hang together. Others consider them dangerous because of the risk of causing misinterpretation of the more detailed provisions they describe.
Purpose statements tend, by their nature, to be broadly worded and ambiguous. While they may assist resolution of uncertainties they can also be the source of disputes. Trying to say the same things in different words is bound to create inconsistency, particularly if one version is a compressed summary of the other.
The inclusion of purpose statements can also divert attention from the substance of a Bill during its parliamentary passage. The shape of purpose statements is likely to be the focus of much politically motivated debate and this increases the possibility of divergence between the purpose statement and the specific provisions of the legislation. The legislator's attraction to purpose statements can be diluted when it becomes apparent that they often cede power from parliament to the judiciary.
The parliamentary and political processes will usually provide the opportunity to explain or justify the policy intention behind a Bill: either in debate or in documentation accompanying the Bill. Those responsible for preparing such related material should however bear in mind the increased willingness of the courts to consider it when interpreting Acts.
Application of other provisions
One of the most frequently criticised types of legislative provision is that which applies other provisions, often with modifications ( e.g. "the Compensation Act applies for the purposes of calculating compensation payable under this section").
Applying provisions are unintelligible to all but the most informed reader and it may be worth sacrificing certain other tenets of plain language ( e.g. brevity) for the sake of making self evident provision.
But the benefit to be gained from applying other provisions will sometimes justify the technique. There is certainty in attracting tried and tested provisions and doing so will avoid the need for repetition of provisions already enacted. There can also be political and practical advantages in not opening up established procedures to fresh legislative scrutiny.
Gender neutrality
Repeating the subject to avoid references to gender can lead to inelegant provisions which offend certain plain language principles. Using both genders can also be unwieldy, and the effect is exacerbated when a non-gender specific pronoun is also needed to cover the eventuality of the person referred to being a body rather than an individual ( i.e. "he, she or it"). But those who otherwise strive to use plain language usually also consider gender neutral drafting to be desirable, and both issues are connected by association with modernising agendas.
« Previous | Contents | Next »