Mind your language
The concept of ‘plain’ or clear English is gaining support. Edward Donelan argues that using plain English develops a sensitivity in writers towards the needs of readers, and he examines how clarity can be reconciled with complexity.
Justice Clarence Thomas argued at a conference in Harvard in 2013 that the law ought to be accessible to the average person. He captured this idea in a neat aphorism about plain English: “The beauty is not to write a five-cent idea in a ten-dollar sentence, but to put a ten-dollar idea in a five-cent sentence.”
Arguments in support of plain English may be greeted with scepticism by some lawyers. Their arguments would be that ‘plain English’ could result in vagueness and imprecision. Another argument is that the use of technical legal terms is necessary for accuracy.
These arguments suggest that complex topics can’t be drafted in plain English without losing some of their meaning – and that the use of legal terminology is necessary because it has established meanings.
Nevertheless, legal documents should be as clear as possible – and lawyers should draft as clearly as possible. A complex right can be defined or explained in a way that makes it understandable. Legal concepts and rights do not arise from complex language.
Acceptance of the need for plain English may be seen in many parts of the English-speaking world, including in Ireland. A number of publications here support this development and, with this in mind, the Law Society is organising a Legal Writing Skills Masterclass on 15 March as part of its continuing professional development programme.
Clarity
The international plain-language organisation Clarity was founded in 1983. Focused on legal writing, its board consists of directors from 30 countries, with members from many more. Clarity advises four steps when drafting in plain English:
- Understand your readers’ needs and adopt their point of view in the drafting process,
- Define the purpose of your content,
- Rethink the structure, wording, and graphic design to make content more easily scannable and understandable, and
- Choose the most relevant and useful information for your users.
International standards
The International Standards Organisation (ISO) is expected to publish a standard for plain language in 2023. The standard will deal with process and issues, but each country’s committee will develop specific language standards for its own language.
The ISO suggests that plain language (not just English) is needed, because all industries and sectors benefit from improved communication. Readers benefit when they can understand and use information.
And organisations gain improved branding, efficiency, and effectiveness in their communications products. A plain language standard provides all sectors, in nearly all languages, with a set of guidelines and strategies to make information more accessible and effective.
USA
In 2010, the US Congress enacted the Plain Writing Act. Its purpose was “to improve the effectiveness and accountability of federal agencies to the public by promoting clear government communication that the public can understand and use”.
Following the enactment of the legislation, plain-language advocates in the USA were initially unimpressed by its impact. But the Center for Plain Language (a non-governmental organisation that publishes ‘report cards’ on writing quality in government agency documents) noted significant improvements between 2013 and 2021.
One example worth considering is the US Department of Labour’s annual compliance reports and annual grades for ‘organisational compliance’ and ‘writing quality’. They are accessible on the internet.
New Zealand
In 2022, the New Zealand parliament enacted a Plain Language Act. Its objective is to jettison jargon. Officials will need to communicate clearly with the public as part of a bid to improve accessibility for all parts of society. The government says that the act will make for a more inclusive democracy – particularly for people who speak English as a second language, people with disabilities, and those with lower levels of education.
The act will come into operation on 21 April 2023, but it has already drawn adverse comments from one NZ lawyer, who points out the complexity of one section: “If a document contains a part that meets the requirements in subsection (1) and a part that does not, section 6 applies only to the part that meets those requirements.”
That subsection seems clear to me, but having drafted legislation for 24 years, I am used to grasping the meaning of this type of provision. The lay reader may have to read it, at least twice, to understand it.
Canada
By the 1990s, plain language had entered the legal mainstream. The Canadian Law Information Centre offered the workshop ‘Making your message clear’. The Canadian Bankers’ Association and the Canadian Bar Association jointly produced The Decline and Fall of Gobbledygook: Report on Plain Language Documentation.
In 1991, the Canadian government produced a handbook, Plain Language, Clear and Simple, which suggests that the use of plain language is a requirement of its Directive on the Management of Communications.
Writing in plain language doesn’t mean oversimplifying or leaving out critical information. Using plain language actually makes critical information accessible and readable for everyone. (Note the idea that plain language doesn’t mean oversimplifying.)
Ireland
In November 2022, the Law Society of Ireland organised a ‘Legal writing skills masterclass’ for lawyers, which is being repeated on 15 March 2023. The Society has also published a Solicitors’ Guide to Clear Writing, which suggests that: “As solicitors, we know the power of language to convey information, to persuade and to effect change. We know that using words precisely, in accordance with their legal meaning, is important in the practice of law.”
In 2000, the Law Reform Commission published its Report on Statutory Drafting and Interpretation. It was based on research and a discussion process that included two well-attended seminars, during which the views of judges, academics, parliamentary counsel, law officers, members of the Oireachtas, and other experts in this field were obtained.
The report recommended to the Government:
- In the drafting of legislation, omitting archaic words such as ‘herein’, ‘heretofore’ or ‘whereof’,
- Using positive rather than negative statements,
- Using examples, maps, diagrams, and mathematical formulae,
- Adopting attractive modern methods of presentation, such as highlighting in bold font terms that have been defined earlier in an act, and
- Providing explanatory memoranda, where appropriate.
Regarding the interpretation of legislation by judges, the commission recommended that a court should be able to depart from the strict and literal interpretation, and to choose instead a construction based on the intention of the Oireachtas when a provision of an act was ambiguous or obscure, or when a literal interpretation would be absurd or would fail to reflect the intention of the Oireachtas (to the extent that the intention is plain).
Roscommon-based service specialises in teaching plain English. Called ‘Plain English Ireland’, it provides courses and workshops online. Its business-writing courses provide plain-English training. It also provides editing and proofreading services that claim to support corporate communications that are strong, clear, polished, and free of grammatical errors.
Public Affairs Ireland organises workshops on plain English, claiming (without any reasoned arguments) that “the days of writing in ‘business-speak’, ‘Civil Service-ese’ and ‘posh’ English are gone”.
The Association of Freelance Editors, Proofreaders and Indexers of Ireland (AFEPI) has published a Simple Guide to Plain English. Its guide defines plain English and presents arguments in support of using it. It also refers to the 2019 Plain Language Bill. This was Fine Gael TD Noel Rock’s response to international developments in this field. However, it has not been enacted.
The bill – entitled “an act to ensure that all information for the public from Government and State bodies is written and presented in plain language” – lapsed on the dissolution of the Dáil and Seanad in January 2020 and does not appear to have been reintroduced, despite it having all-party support.
Plain English and the law
In 2017, Mason, Hayes & Curran cooperated with the National Adult Literacy Agency to publish Plain English and the Law: the Legal Consequences of Clear and Unclear Communication. It contains three case studies, which it puts forward as evidence for the need for plain English.
It argues why plain English is important, as well as providing examples from international experiences in English-speaking countries. Finally, it provides some ‘know-how’ and gives tips on document design and words to avoid – such as ‘aforementioned’, ‘duress’, ‘heretofore’ – and suggests simpler alternatives, such as ‘already mentioned’, ‘pressure’, and ‘before now’.
The publication also puts forward five plain-English writing tips:
- Think of the person you are writing to and why you are writing,
- Be personal and direct,
- Keep it simple,
- Define or spell out any unavoidable jargon and abbreviations, and
- Keep sentences to an average of 15 to 20 words.
Challenges
There are, of course, challenges and risks of using plain English in legal documents (especially legislation). The Law Reform Commission points out how, “in a complicated area where certainty is vital, simplification can only go so far”.
The report emphasises that “a statute is never going to read like a song”. For instance, “certain words or grammatical constructions, though not in common usage, have been stamped with a well-established legal meaning, and they should continue to be used, for the sake of clarity and brevity”.
Technical language
Some technical terms cannot be translated into plain language – and the same goes for language used in the context of legislation and legal documents, such as conveyances, contracts of a specialised nature, judicial decisions, and wills.
Clearly, there are limits to the extent language can be simplified without loss of meaning. The purpose of the Law Society’s legal writing skills masterclass is not to advocate the uncritical adoption of plain English, but to make lawyers aware of the way in which they use language, and to help them improve their skills in written English.
Look it up
LEGISLATION:
LITERATURE:
- Pierre-C Gagnon et al, The Decline and Fall of Gobbledygook: a Report on Plain Language Documentation (Joint Committee on Plain Language: Canadian Bankers’ Association and The Canadian Bar Association, 1990)
- Mary McCauley, ‘Simple guide to plain English’ (Association of Freelance Editors, Proofreaders and Indexers of Ireland, 24 February 2020)
- Plain English and the Law: the Legal Consequences of Clear and Unclear Communication (National Adult Literacy Agency and Mason, Hayes & Curran, 2017)
- Plain Language, Clear and Simple (Minister of Supply and Services, Canada 1991)
- ‘Plain language writing’ (Public Legal Education, Canada)
- Lisa Rein, ‘Advocates of the Plain Writing Act prod federal agencies to keep it simple’ (Washington Post, 8 April 2012)
- Lisa Rein, ‘Plain writing in government: agencies, plainly speaking, aren’t there yet’ (Washington Post, 19 November 2013)
- Report on Statutory Drafting and Interpretation: Plain English and the Law (Law Reform Commission, LRC 61 – 2000)
- Solicitors’ Guide to Clear Writing (Law Society of Ireland)
- Cheryl M Stephens, ‘Plain language legal writing: part 1 – writing as a process‘ (Canadian Bar Association, 4 March 2014)
ORGANISATIONS:
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Dr Edward Donelan
Dr Edward Donelan is adjunct professor of regulatory governance, University College Dublin. He is a barrister and consultant and has published four books, including Regulatory Governance: Policy Making, Legislative Drafting, and Law Reform (Springer, 2022).