In their text, Butt and Castle34 state that plain English documents are easier to read and understand, more direct and more easily absorbed. They seek to illustrate this by setting out a traditionally drafted provision, followed by a plain English version of the same provision:

"Traditional
The Builder shall at his own expense construct sewer level pave metal kerb flag channel drain light and otherwise make good (including the provision of street name plates in accordance with the requirements of the appropriate District Council and road markings and traffic signs in accordance with the requirements of the Council) the street.

Plain
The Builder must construct the street to Council specifications."

Few could disagree that the plain language version is shorter, easier to read and understand. But is it clear? Does it convey the same meaning? Seemingly not. It is vague and ambiguous, devoid of the helpful guidance which the traditional version carries in its detail. One of the problems with plain language is that it often requires compressing what might be a complex policy into a small number of words. Consequently, this can lead to difficulties with interpretation and give rise to uncertainty - as this translation has shown. So one must ask, when is a reader likely to be more fully informed and aware of the obligations of the Builder? By reading (and even re-reading, if necessary) the traditionally drafted provision, the reader will be confidently aware of the obligations of the Builder. In contrast, by reading the plain language version, the reader will only know that the Builder must construct the street to the Council specifications. This puts the onus on the reader to look elsewhere - have the Council specifications been articulated? Are they available to read? Or are they vague, subjective and ambiguous aspirations? Also, the reader of the plain language version will not know who is to pay for the works and what works must be carried out. Effectively, by redrafting this provision in plain language, the authors have removed some helpful detail and have instead, inserted a little black hole. At a closer look, the simplicity of the plain language version seems more apparent than real. In short, the reader of the plain language provision is less informed. We should not underestimate the intelligence of members of the public. We should not presume that they are unable to understand a provision of this kind.


34.

P. Butt & R. Castle, Modern Legal Drafting: A Guide to Using Clearer Language (Cambridge, 2001) at p. 86.

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