Plain language techniques

What follows are some specific plain language techniques, tools which are aimed at improving intelligibility in legislation. For a more in-depth consideration of these techniques, see Thornton747 and Turnbull748_.

Short sentences

According to Thornton ‘studies in linguistics show that a sentence of above 15 -20 words is incomprehensible’.749 _{The EU state that ‘unnecessarily long sentences are a serious obstacle to} clarity in European Commission documents’750 _{and suggest an average sentence length of 20 words} (although this advice is consistently ignored if one reads any preamble to any EU legislation). A sentence which rambles on over several lines is difficult to understand, because by the time the reader has reached the end, they may have forgotten the start. Brevity, by which I mean expressing legislation in short sentences, does lend itself to intelligibility, ‘clarity is helped by the use of short sentences’.751 _{Oscar Wilde can write a sentence 119 words long,} 752 _{drafters cannot.}

Uncomplicated sentences

But brevity by itself is insufficient in sentence construction. We also need to make sentences less complicated by reducing the number of concepts contained within them. A sentence is complicated (and hence more difficult to understand) if it contains multiple rules, conditions, provisos, persons, exceptions etc. This harks back to Thring’s statement that ‘enactment in its simplest form consists of legal subject and legal predicate’,753 _{that is to say}

1. A person

746 _{Thring, Practical Legislation: The Composition and Language of Acts of Parliament (n 135) 73.} 747 _{Thornton and Xanthaki (n 66).}

748 _{Mark Turnbull, ‘Clear Legislative Drafting: New Approaches in Australia’ (1990) 11 Statute Law Review 161.} 749 _{Thornton and Xanthaki (n 66) 60.}

750 _{European Commission (n 740).}

751 _{Office of the Parliamentary Counsel, ‘Drafting Guidance’ (n 114) 2.} 752 _{Oscar Wilde, The Picture of Dorian Gray (Modern Library 2006).}

194 2. Must do (or not do) a thing

To this we can add the condition, case or circumstance in which the rule applies 1. A person

2. Must do (or not do) a thing 3. In a particular case / circumstance

If subject, predicate and condition are simple, then all three can be expressed in a single, uncomplicated sentence. For example

The members shall be appointed by the Department.754

The court must refuse to hear an application under a provision listed in subsection (2) if it considers that the applicant does not have a sufficient interest in relation to the missing person’s property or financial affairs.755

However, once these categories start filling up, it becomes increasingly difficult to understand a single sentence which still contains them all. Mackinlay refers to this as ‘syntactic discontinuity’ if there is too much of separation of two elements of the same phrase by the insertion of another element.756 _{So, if there are multiple legal subjects, predicates or cases, then it can be better to} separate these out into different sentences. We can then have the outline framework at the start, followed by further sentences which explain the details. For example

1. A person, as defined in subsection (2)

2. Must do the thing described in subsection (3) 3. In the circumstances set out in subsection (4).

There is no hard and fast rule about how many concepts are “too many” for a single sentence. But at some point, intelligibility will decrease the more concepts are packed in, and it will be better to chop a long sentence up into smaller sentences. Paradoxically, this can mean that a longer section is more intelligible than a shorter section as instead of one long provision, we have several shorter ones.

Division into paragraphs

754 _{S. 6(3) Charities Act (Northern Ireland) 2008.} 755 _{S. 19(1) Guardianship (Missing Persons) Act 2017.}

756 _{Jane Mackinlay, ‘Syntactic Discontinuity in the Language of the UK and EU Legislation’ <http://www.esp-}

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This flows on from the above point and follows Thornton’s advice on paragraphing.757 _{Division of a} provision into paragraphs allows for a more logical structure for that provision. It allows the reader, at a glance, to see the division into the different elements of subject, predicate and case. For example:

4 (1) A person is entitled to welfare supplementary payment under this Part if the person meets –

(a) the IS entitlement condition,

(b) the disability-related premium entitlement condition, (c) the PIP refusal condition, and

(d) the termination of disability-related premium condition.758

The reader sees at a glance that there are 4 conditions that must be satisfied, and the following paragraphs then set out in greater detail what each of these conditions are. However, if a list is short, it may be better to keep it all together rather than unnecessarily break it into paragraphs. Active not passive voice

In general terms, writing is more intelligible if it is in the active voice rather than the passive voice.759 When it comes to legislation, it is imperative that citizens know what duties fall upon them: “the thing must be done” is unclear compared to “the person must do the thing”. As a bad example, in relation to consumer credit agreements ‘All the contracting parties shall receive a copy of the credit agreement’.760 _{Is the government to send out the agreements, or the creditor, or the consumer, or a} credit intermediary?

Of course, context can provide the identity of the person upon whom the duty does fall, particularly if this is set up by what comes before. So, if a person must make an application for a licence, it is acceptable for the following provision to refer to application requirements in the passive voice, as it is clear that the person making the application must comply with them.

Main point first

757 _{Thornton and Xanthaki (n 66) 66.}

758 _{Regulation 4(1) Welfare Supplementary Payment (Loss of Disability-related Premiums) Regulations}

(Northern Ireland) 2016.

759 _{Thornton and Xanthaki (n 66) 64.}

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The main point ought to come first, both at the level of an individual section, and at the level of the Act itself. Law isn’t poetry, open to nuance and a multitude of subjective opinions, nor is it an adventure novel where there can be a twist at the end of the story. It is instruction to the citizens with consequences for failure to comply, so it must get its message across from the start. Starting with the main point first allows the reader to understand the legislation from the outset, rather than struggling through minor points of detail without knowing where they are going. So, if a section is going to ban cars from the city centre, it should begin with this bold statement, rather than by starting with definitions of cars and city centres.

It can be more difficult to do this at the level of the Act itself, as often Acts will have several main points. But the more important the provision, the closer it should go to the start, particularly with single purpose Acts. For example, the main purpose of an Act was to ban criminals from acting as special advisers to government ministers, so in the second section, the first line reads:

Subject to subsection (2) and section 3, a person is not eligible for appointment as a special adviser if the person has a serious criminal conviction.761

Use of negatives (and double negatives)

Legislation is easier to understand if it is expressed in the positive rather than the negative.762 _‘An application must be in writing’ is better than ‘an application will not be accepted unless it is in writing’. Double (or triple or more) negatives are a barrier to understanding as the reader must first jump an intellectual hurdle before understanding a provision: ‘please untick this box if you do not want to receive marketing material’ is not as good as ‘tick here to receive marketing material’. Front-loading of sentences with conditions

Watson-Brown counsels against front-loading sentences with conditions.763 _{This is a specific} outworking of the general advice for uncomplicated sentences. Front-loading means that the conditions for application of the rule appear in a long list before the rule itself appears. I previously argued that ‘it is difficult for readers to link the first part of the sentence to the last part of the sentence if they have to push their way through four conditions in the interim’.764

Formatting and numbering

761 _{S. 2(1) Civil Service (Special Advisers) Act (Northern Ireland) 2013.} 762 _{Thornton and Xanthaki (n 66) 65.}

763 _{Anthony Watson-Brown, ‘Defining “Plain English” as an Aid to Legal Drafting’ (2009) 30 Statute Law Review}

85.

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As with paragraphing, formatting and numbering can help to visually organise sentences. (1) An indentation can indicate how a provision only relates,

(a) to certain cases, or (b) to other cases.

(2) Before a return to the more general proposition.

Formatting can break up ‘a large slab of unbroken text’765 _{and white space on a page allows for a} separation of concepts on the page, which leads to greater intelligibility.

Structure

A logical structure makes legislation more intelligible. This is dealt with in chapter 2. Archaic, technical, jargon and foreign words

Thornton recommends avoiding archaic words, legalese and foreign words.766 _{Classic examples,} often favoured by lawyers, are hereby, as aforesaid etc. Thornton’s advice is sound, although sometimes the precise word may be a foreign one, such as ultra vires. A phrase such as ultra vires has a very particular meaning, built up through case law, and so it can be risky to jettison it for an English concept such as “beyond the powers”. As stated previously, depending upon the target audience, a technical word, or even a word which is jargon can be acceptable, if it is intelligible to those who will be using the legislation.

Visual aids, supplementary aids

Legislation doesn’t have to be just words. We can use maps, diagrams, formula, tables, flow charts etc. Research in the UK has found that users find it easy to understand mathematical calculations if they are written out as a formula rather than written out longhand in words.767

Use of present tense

Legislation should be in the present tense. Legislation always speaks, meaning that we should write the law as if it will be applied right now.

Splitting the verb

765 _{Office of the Parliamentary Counsel, ‘Drafting Guidance’ (n 114) 20.} 766 _{Thornton and Xanthaki (n 66) 77.}

198

The greater the distance between the person and the thing they are to do, the more unintelligible the legislation. Xanthaki suggests that we shouldn’t split the verb.768 _{This is another outworking of} the basic plain language technique of avoiding complicated sentences.

Avoid nominalisations

If there is a simple verb, use it, rather than turning it into a noun and adding another verb.769 _{So, it is} simpler to say that “a constable may investigate” rather than “a constable may carry out an

investigation”. Separate out provisos

A proviso is an additional qualification or restriction at the end of a provision which colours how that provision is to be applied. Thring cautioned against their misuse,770 _{Coode spoke strongly against} them,771 _{as did Driedger}772 _{and Thornton.}773 _{There are certainly times when they can be used, but if} they are used, they should be separated out and stand alone, rather than appear at the end of a long sentence. Considering the following example, which deals with several plain language techniques. Firstly, we have the original provision from 1996:

2. Action which is or may be investigated by the Attorney General with a view to the institution of proceedings under section 31 or 46(9) of the Local Government Act (Northern Ireland) 1972.

Provided that, if, after the Attorney General has decided not to proceed with such an investigation into such action or not to institute such proceedings in respect of it, or after the final determination of any such proceedings in respect of such action, a person aggrieved complains that such action resulted in his sustaining injustice in consequence of maladministration and that such injustice has not been remedied, the Commissioner may, if satisfied that there are reasonable grounds for that complaint investigate such action, notwithstanding any limitation of time imposed by Article 10(6).774

768 _{Thornton and Xanthaki (n 66) 65.} 769 _{ibid 70.}

770 _{Thring, Practical Legislation: The Composition and Language of Acts of Parliament (n 135) 83.} 771 _{Coode (n 141).}

772 _{Elmer Driedger, The Composition of Legislation: Legislative Forms and Precedents (2nd edn, Department of}

Justice 1976).

773 _{Thornton and Xanthaki (n 66) 86.}

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Then we have the new version from 2016, restated in plain language, using several of the techniques discussed in this part.

4. (1) Action which is or may be investigated by the Attorney General with a view to the institution of proceedings under section 31 or 46(9) of the Local Government Act (Northern Ireland) 1972.

(2) But the Ombudsman may investigate that action, notwithstanding any limitation of time imposed by section 26, if conditions 1 and 2 are satisfied.

(3) Condition 1 is that—

(a) the Attorney General has decided not to proceed with an investigation, (b) the Attorney General has decided not to institute proceedings, or (c) there has been a final determination of those proceedings. (4) Condition 2 is that—

(a) a person aggrieved complains that the action resulted in the person aggrieved sustaining injustice in consequence of maladministration and that such injustice has not been remedied, and

(b) the Ombudsman is satisfied that there are reasonable grounds for that complaint.775