Active and passive voice

5.12.1 What is voice?

In grammar, voice is concerned with how the action of a sentence is viewed. The verb phrase used may be in either the active voice or the passive voice. For example:

The robber shot the shopkeeper.

And:

The shopkeeper was shot by the robber.

In each sentence, the facts reported are the same. However, in the first sentence they are reported in the active voice, whilst in the second they are in the passive voice.

5.12.2 Voice in drafting

The active voice should be used where possible in drafting legal documents. This is because verbs which express the legal action in a legal sentence should make it clear who has the duty to perform the legal action and will do so if they are placed near the reference to the person who has to perform the legal action. For example:

My executors shall pay the sum of £10,000 to my son, Peter.

If this clause were drafted in the passive it would appear as:

My son, Peter, shall be paid £10,000 by my executors.

The use of the passive may not cause undue difficulty to the reader in short provisions, but, where a provision is long and subject to qualifications and conditions, the use of the passive may result in the references to the duty to be performed, and the person who is to perform it, being separated by the qualifications and conditions and the clause will lose some of its effect. For example, the rules of a company pension scheme may provide for the payment of a spouse’s pension on the death of a member in certain circumstances. The clause should be drafted in the active voice as follows:

Subject to the conditions in this clause, the Trustees shall pay a pension to the spouse of a Member who dies in service ...

The following form of passive drafting does not have the same effect:

If a Member dies in service and leaves a spouse the spouse shall receive a pension subject to the conditions set out in this clause and which shall be paid by the Trustees.

5.13 Gender

5.13.1 General matters

In English nouns, gender indicates sex or the absence of sex.

There are four genders, namely:

(a) Masculine gender, which refers to male human beings, for example, son, husband.

(b) Female gender, which refers to female human beings, for example, daughter, wife.

Masculine and female gender may also refer to male or female animals, for example, bull, cow, cock hen.

(c) Neuter gender, which refers to objects without sex, for example, car, house, light, table.

(d) Common gender, which refers to human beings or animals of either sex, for example, child, adult, bird, sheep, pig.

The masculine and feminine gender may be indicated in three ways. First, through the use of different words for each, for example, brother and sister, father and mother, or goose and gander. Secondly, gender may be indicated by a changed termination, for example, waiter and waitress, testator and testatrix or widow and widower. Third;y, gender may be indicated by the addition of a word to another which is either neuter gender or common gender, for example, policeman and policewoman, landlord and landlady or billy goat and nanny goat.

5.13.2 Gender-neutral language

There is an increasing trend in the use of English to avoid sex bias, although, as Gower points out in The Complete Plain Words,

‘present usage on such matters is unstable’. Gender-neutral nouns and pronouns are being increasingly used so that terms in the masculine gender are now also applied to women. For example, the term ‘chairman’ is changed to ‘chairperson‘ or ‘chair’, depending

on taste. Other techniques which are used to make language gender-neutral include:

• replacing ‘he’ and ‘she’ with ‘he/she’ or even ‘s/he’, ‘him’ and

‘her’ with ‘him/her’ and ‘man’ and ‘woman’ with ‘wo/man’;

• the use of gender-neutral pronouns to replace pronouns in the masculine or feminine gender such as ‘he’ and ‘she’ and ‘him’,

‘his’ and ‘hers’, so that references are to ‘I’ and ‘we’, ‘mine’ and

‘ours’, ‘me’ and ‘us’ and ‘they’, ‘theirs’ and ‘them’;

• replacing words which terminate with ‘man’ with some other term which is considered gender-neutral, so that ‘postman’

becomes ‘postal worker’, ‘fireman’ becomes ‘firefighter’ and

‘foreman’ becomes ‘supervisor’;

• using nouns in the common gender in place of nouns in the masculine or feminine gender so that, for example, ‘partner’ is used to replace ‘husband’ and ‘wife’, with the added advantage of covering cases where marital status is unknown; and

‘landowner’ or ‘lessor’ is used in place of ‘landlord’ and

‘landlady’;

• avoiding expressions which contain a sex bias, for example,

‘members of the weaker sex’.

5.13.3 Masculine gender traditional in drafting

The traditional approach to gender in legal drafting is to draft in the masculine gender, regardless of whether a document concerns the rights and obligations of only men or both men and women.

Leaving aside other systemic historical and social factors, the use of the masculine gender in drafting is probably primarily influenced by two factors. First, in legislative drafting, the masculine gender is used. Section 6(a) of the Interpretation Act 1978 provides that, in statutes, ‘words importing the masculine gender shall include the feminine’. This approach is frequently mirrored in legal documents by the insertion of an interpretation clause, which may state:

... words denoting one gender shall include all genders ...

Or:

... unless the context otherwise determines, words (other than the word ‘male’) importing the masculine gender shall include the feminine gender ...

Secondly, the use of the masculine gender was more appropriate in earlier times because the vast majority of legal documents were concerned with rights and obligations between men. However, the continued use of the masculine gender is difficult to justify where, as is frequently the case, a legal document affects the rights and obligations of both men and women. For example, with joint ownership of the matrimonial home by husbands and wives, contracts for the sale of such property ought to use gender-neutral language wherever possible. Similarly, the rules of a company pension scheme should use gender-neutral language as far as possible when it affects the rights and obligations of both male and female members. In transactions between women, the use of the feminine gender or gender-neutral language should be used.

Indeed, in some instances, the use of the masculine gender would be clearly inappropriate and, in the following example from a company pension scheme, the feminine gender must be used:

If a Member is temporarily absent because of pregnancy or childbirth then, unless she has given notice of her intention to return to work under the Employment Protection (Consolidation) Act 1978, Rule 15 shall apply to her.

5.13.4 Use of gender-neutral language in drafting

The lawyer risks criticism in using the masculine gender in drafting a legal document which affects the rights of both men and women, since many women may resent being referred to as men. Although the lawyer should seek to use gender-neutral language where possible, circumstances may arise where it is not possible or appropriate to do so, including:

• where the client makes it clear that the masculine gender is to be used;

• where a precedent is used as the foundation of a document and is drafted in the masculine gender. In the absence of clear instructions of the client, the constraints of time, or costs, or both, may rule out the possibility of the lawyer going through the document to ensure that it is expressed in gender-neutral language throughout;

• in amending existing documents which are in the masculine gender, the amendments should be in the masculine gender (unless the client gives instructions to change it to gender-neutral language), otherwise the document will become a confusing mixture of different styles.

As a general rule, the client should be invited to set out his or her preferences, but gender-neutral language can be presented/

suggested as the ‘norm’.

5.13.5 Drafting using gender-neutral pronouns

Drafting in gender-neutral language can be difficult. If, as is often the case, the drafter is inclined to draft in the masculine gender, a conscious effort must be made to avoid lapsing into the masculine gender, especially if the document is long. A further problem is that a clause drafted in gender-neutral language can appear awkward if it follows the syntax which would be used if the clause were drafted in the masculine gender. In many cases, drafting in gender-neutral language may require adaptation of some clauses drafted in the masculine gender. Experience is likely to show that the simplest method of drafting in gender-neutral language is with the use of gender-neutral pronouns throughout a document, so that references are made to ‘you’ and ‘we’ and ‘us’. This style may not be acceptable in all forms of legal drafting or to all clients. However, a finance company would generally regard it as appropriate to set out the terms of a standard form of agreement for the hire of goods to a consumer. The following example sets out the provisions

relating to breach of contract that might be found in a consumer agreement in the masculine gender and using gender-neutral pronouns.

Version 1: masculine gender