At a legislative
drafting conference in Dublin two years ago, Peter Rodney23 sought to illustrate just how easy it is to translate
some "pompous" old legislation into plain English. The example he used was a
convoluted legislative provision dealing with gratuities to the driver of a
taxi. Mr Rodney suggested that it would have been much better to just speak in
terms of tipping a taxi driver. In a question and answer session, a Judge from
our High Court24 pointed out that the plain
English translation did not have the same meaning, but rather was very very
different. He pointed out that the word "tip" could have several different
meanings - it could mean: 1. A place where rubbish is dumped 2. Top/apex of an
object 3. To tilt/incline 4. To empty/pour 5. To touch gently 6. A Hint 7. A
warning 8. A gratuity/reward - this example clearly illustrates just how
difficult it would be if we were to use plain language in our legislation.
Ambiguity and uncertainty would rein, the Courts would be overwhelmed by cases
because each party to a case could legitimately put forward their own
interpretation - and in the meantime, the law would be devoid of credibility
and totally ineffective.
Words - Vehicles of
Many Meanings The
task of parliamentary counsel is to encapsulate policy within the legal
framework and this requires them to facilitate communication of the intent of
the legislature. This must be done through the use of precise language. The
challenge to the drafter is that he or she must use words and words alone. The
drafter cannot lend atmosphere to the legislation. He or she cannot use
colourful language, or repetition to illustrate a point. Rather, his or her
written words stand alone as monuments to clarity of thinking - or
carelessness. Written communication needs to be effected with greater care than
oral communication. The drafter of any document needs to anticipate and take
cognisance of the range of perspectives from which the readers of the
legislation will emerge. For example, the drafter must ensure that the reader
who is not prepared to take a reasonable view, or who is hostile towards the
legislation, reaches the same conclusion as to the meaning of the legislation
as the drafter had intended.
23.
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P. Rodney,
Senior Legislative Draftsman for the Government of Gibraltar at 'Legislative
Drafting - Emerging Trends' conference 6-7 October, 2000 Dublin, Ireland.
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24.
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Hon. Mr
Justice Daniel Herbert. |
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