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The adoption of
plain language, is not (as its proponents would have us believe) a mere
exercise in replacing some turgid words with simple and understandable
ones.44 It is all too easy to become facetious
and deride the apparent "inability" of some drafters to accept in full, the
contentions of the plain language school.45
Even those who accept that some change in the traditional style of drafting is
needed, offer words of caution to the effect that those who are "berating
drafters, … should bear in mind that a convincing case has yet to be made
out".46
6. Concluding
Remarks
In circumstances
where an experienced drafter encounters difficulty in seeking to express
complex policy by using precise English and legal terms, how can anyone
seriously suggest that the articulation of this policy could be made easier
(for the drafter or the reader) if expressed in plain language? Realistic
proponents of plain language will admit that plain language drafting is not the
complete solution and accept that plain language may not be suitable in
situations where the policy is complex. One of the more moderate proponents of
plain language, Turnbull acknowledges that plain language drafting is not a
complete alternative to traditional style drafting. In his article,47 he points out that in situations where complex
concepts are at issue, plain language might well give rise to ambiguity and
might render the legislation disjointed or absurdly long. In situations such as
this, he proposes that precision must prevail over simplicity, as was the
approach favoured by the Renton Committee.48
He sees the drafter as having a constant duty to consider alternative forms of
expression and choose the simplest by balancing different degrees of precision
against different degrees of simplicity.
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44.
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Lord
Donaldson MR thinks that resolving the problem of turgid legislation is even
more straightforward than that! In Merkur Island Shipping Corp v
Laughton [1983] AC 570 at 595 he effectively suggested that if a
government find that their policy is not capable of being expressed in basic
English, then the policy should be modified so as to facilitate ease of
expression: "… when formulating policy, ministers, of whatever political
persuasion, should at all times be asking themselves and asking parliamentary
counsel: Is this concept too refined to be capable of expression in basic
English? If so is there some way in which we can modify the policy so that it
can be so expressed". Clearly, a less than ideal solution. This line of thought
evidences an absence of connection with reality and is the kind of comment
which is damaging to the drive for plain language legislative
drafting. |
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45.
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An example of
this impertinence may be found in Rodney, 'Legislative Drafting Style' paper
delivered at 'Legislative Drafting - Emerging Trends' conference 6 - 7 October
2000 Dublin, Ireland. Also, Professor David Mellinkoff in his book Language
of the Law Aspen Publishers, 1963) famously said that "The most effective
way of shortening law language is for judges and lawyers to stop writing". A
more extreme example of facetiousness can be found in an article by Richard
Thomas, a legal officer with the National Consumer Council in the U.K.,
entitled 'Plain English and the Law' Stat. LR Autumn (1985) 139 - where he
suggests that ridicule is a useful means of promoting the use of plain
language. This ridicule manifests itself the annual Plain English Awards and
the Golden Bull Awards which are awarded to the "six worst examples of
gobbledegook". |
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46.
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Hon. Mr
Justice Nazareth, 'Legislative Drafting: Could Our Statutes be Simpler?' (1987)
Stat. LR 81 at 92. |
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47.
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I. Turnbull,
'Legislative Drafting in Plain Language and Statements of General Principle'
(1997) 18 Stat. LR 21 at 25. |
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48.
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The
Preparation of Legislation, (London, 1975) Cmnd. 6053. |
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