2. FB's writings on Law

2.3. FB's writings on Statute Law

2.3.7. FB's articles etc. on Statute Law

2.3.7.5. Publication

1. Citation from:The Irish Law Reform Commission (LRC-CP14-1999),

Consultation paper on statutory drafting and interpretation, plain language and the law.

http://www.lawreform.ie/publications/data/lrc103/lrc_103.html

Advantages and Disadvantages of the Plain Language Approach

3.12

Jurisdictions which have implemented a policy of plain language, have done so in the belief that legal documents written in plain language have two distinct advantages over documents written in traditional legal language: namely that the use of plain language makes law and justice more accessible, and that plain legal language saves time and money. There has been considerable debate within these jurisdictions, however, as to whether a plain language policy can deliver these benefits. Many commentators have expressed concern that introducing a plain language policy would cause more problems than it would solve. Below, we examine the debate in this area in order to assess whether benefits of plain language outweigh the alleged disadvantages.

(a) Concern that Plain Language will Lower Standards of Good Writing

3.13

There is a concern that the use of oversimplified language is too juvenile, unlegal or condescending, that it is simply not “good writing”, and involves a

Start of page 74

debasement of language. This concern stems from the view that plain language consists of monosyllabic words, very short sentences and a complete rejection of complex words or sentence construction. If this were true of plain language then the criticism would be valid. It would certainly not be useful to draft statutes and legal documents in simplistic monosyllabic words. However, as other commentators have pointed out, this is to misunderstand plain language. As the Law Reform Commission of Victoria note:

“ Plain English involves the use of plain, straightforward language which avoids defects and conveys its meaning as clearly and as simply as possible, without unnecessary pretension or embellishment. It is to be contrasted with convoluted, repetitive and prolix language. The adoption of a plain English style demands simply that a document be written in a style which readily conveys its message to its audience” 7

3.14

Plain language is therefore, by definition, good language. Far from debasing language, those in favour of the adoption of a plain language style, argue that it promotes good style and writing by removing the clumsiness, inelegance and prolixity inherent in many legal documents. It is important not to lose sight of the fact that legal documents and statutes are not meant to be works of art or literature, but are documents whose primary aim is to communicate. As working documents intended to do a job they should be designed for utility rather than beauty. As Redish puts it “the purpose of the documents that we want to put into plain English is to convey critical information” 8

3.15

Even a reader familiar with legal language may have little time to waste searching through a disorganised document to ascertain its meaning. Lawyers hunting through disorganised and obscure legislation could waste many hours trying to identify its meaning.

(b) Concern For Intelligibility

3.16

Adopting a plain language approach to drafting does not necessarily mean that laws would be drafted so as always to be intelligible to the general public.

3.17

Bennion believes that the biggest stumbling block in this area is communicating the law to lawyers.

“ Unless they are clear about the nature and characteristics of legislative texts, there is not much chance that anyone else will be.

The man or woman in the street should not attempt to interpret legislation . . . in the form in which it was enacted. What the lay person needs is explanations and summaries.

--------------------------------------------------------

7 Law Reform Commission of Victoria, Plain English and the Law, (1987), at p.39.
8 Redish op. cit. fn.2, at p. 134.

Start of page 75

. . . It may be positively dangerous to encourage non-lawyers to think they can understand legal texts unaided by expert advice . . . [I]t takes a lawyer to know whether simple words in what should be a technical text really carry their apparent simple meaning.” 9

3.18

Bennion’s advice is:

“ Do not look for savings by trying to make the law easier for lay persons to understand. Instead, make it easier for lawyers to use. Plain English and reducing jargon have only a small part to play in this.” 10

3.19

In our Report on Dishonesty, we also were of the view that it was a mistake to leave the interpretation of legislation to the “ordinary” man on the street. Advocating the maintenance of settled law, we said:

“When one “pitches” legislation at the Bench, that does not mean that one uses obscure language. It simply means that one uses terms whose meaning is well settled in law, terms that are tried and tested in Court, that are trouble-free and have pedigree. When one uses a new term, one defines it clearly and thoroughly, preferably by using ‘old’ terminology. Why waste all the time and effort taken in so many cases to settle concepts and terms only to discard them?” 11

3.20

The same point has been made with force in New Zealand:

“ No sensible person could expect a statute to be as easy to read as a work of popular fiction or a tabloid newspaper. Works of popular fiction eschew unusual or long words and tabloid newspapers usually make each sentence into a paragraph. If such literary works or newspapers represent the level of comprehension of most of the adult population, no amount of effort by the drafter will render the statutes comprehensible to the average adult reader”. 12

3.21

Opponents of plain language would argue that the way to make legal documents accessible is to educate the average citizen to such a degree that he can read and understand documents which affect him.

3.22

These concerns are valid, and must be taken into account by plain language advocates. However, the plain language movement does not contend that all legal documents and particularly statutes, can be made intelligible to all citizens. Clearly a certain level of education is necessary. Nevertheless by drafting in plain language, the number of those who can understand a document, is hugely increased.

This argument is put by the Law Reform Commission of Victoria as follows:

“ The plain English movement does not require that laws always be drafted in such a way as to make them intelligible to the average citizen.

---------------------------------------------------------

9 Francis Bennion, Don't Put the Law into Public Hands, The Times, January 24th 1995.

10 ibid.

11 Law Reform Commission Report on Dishonesty (LRC 43 – 1992) para. 15.6.

12 ibid. at p.26.