2. Factors Influencing Drafting Style

Many people who advocate plain language in legislative drafting would have us believe that the style of writing used to create stories like Cinderella should also be used in the drafting of legislation. This is a fundamental error which plain language proponents make. Drafting legislation is not a literary exercise. In contrast to the fairytale of Cinderella - statutes were never intended to be a bed-time read. They were never intended to be entertaining, browsed through, or read from cover to cover. Books like Cinderella, Ulysses and Catcher in the Rye are written to entertain, captivate or even teach the reader. Statutes are drafted for an altogether different purpose - statutes are drafted so as to give effect to policies and principles in law - which will invariably be subject to close scrutiny and interpretation by the Courts.

The authors of books, brochures, letters etc. enjoy a far greater freedom than that enjoyed by the legislative drafter. This is evident from reading any book - the free style of writing, the mode of expression, the words chosen, the emphasis and the atmosphere are all apparent. In legislation, words are chosen for a specific purpose too - but an altogether different purpose. Those words are not chosen for entertainment value or ease of reading - rather, they are chosen for their precise meaning and consistency of meaning - so that ideally, all who read those words will be united in their understanding and interpretation.

In their book,⁴ Butt & Castle set out some of the main factors which influence traditional legal drafting. For example:

• Familiarity and habit - the security that comes from adopting forms and words that have been used before and seen to be effective
• Conservatism in the legal profession, allied to the common law tradition of precedent
• The litigious environment of legal practice
• The desire to avoid ambiguity