-Access to the Law 15Annual supper 4/7Back numbers ; 19Bar 4/15Books 13Cambridge City CounciL 2Certificates for value................................................... 11Citizen's charter 2CLARITY's plans 7CLARITY ties 7Committee 7/20Competition 3Conferences 1992: Hong Kong, Vancouver 2/3Crossword....................................................................... 18Drafting points (letters) 9110/11Gender-neutral language (letter) 9Law Ministers' Conference 1990 8Law reports (letter) 10Law Society's stapdardl~ terms 12Letters 9Members 20News 2Obituary: Prof. Reed Dickerson............................. 19Plain English Cainpaign 2/14Plain Language Institute of British Columbia..... 2Referrals register 17/18Seminars 7116

Press date for the March 1992 issue is

March 13th

but please send contributionsas early as possible.

Clarity is composed on computer as items comein, and production is easier if there is a steady

flow of material between issues.

The last week before the press date is spentadding late items and manipulating the layout.

~A MOVEMENT TO SIMPLIFY LEGAL ENGLISH

Patron: Lord Justice Staughton

No 22: December 1991

Cliches are so insidious that we speak dismissivelyof trotting them out without realising that that isanother.

Cliches arrive, batter themselves slowly to death,and disappear. Some years ago, the EveningStandard ran an advertising campaign with themeaningless slogan that it was what living inLondon was all about. For months, everything wasall about something else, which, if it were notgibberish, would be untrue. The expression survivesin the Hokey-Cokey, a strange ritual in whichrevellers form a queue and shuffle through a partyinciting their more sober fellow guests (usually me)to join them. (Incidentally, dancing in general hasmuch in common with cliches; both involverepeating strange little rituals, with each set ofrituals coming into brief fashion.)

The current cliches are window ofopportunity andtrack record. Earlier this year the prime ministergave us safe haven. In each case, one word wouldconvey the meaing of the whole. The word opportunityincludes the notion of temporariness supposedlybrought in by window. When we speak of someone'srecord, the trackhas nothing to do with it. And a bavenis by definition safe.

Some cliches do no harm except clutter the text.Lawyers like these: hereby, the said, hereinbeforementioned, and so on and on. But when we usephrases without thought we will sometimes usethem wrongly. By definition is a current example,when it is used not to explain the meaning of a wordbut to emphasise a factual - rather than a logical ­connection between two ideas.

For all our claims to precision, lawyers. do usewords without thinking about their meanings. Wewill never eliminate all our bad habits of thought,but we can substantially reduce them. One waywould be to rely less on precedents. These should beused as a clKddist of points to be covered, but theyare normally employed as a hand-me-down ofstock phrases, many of which are unnecessary. »

•

» Why else would solicitors write,again and again, In witness whereof

the parties have hereunto set theirhands and seals the day and year firstabove wriuen? It means only that theparties have signed the document toshow that they mean it, a point soobvious that it need never be made.(We do not add it at the foot of ourletters, yet would not argue that wewere not committed to the contents byour signature. We do not even use it incontracts for the sale of land.)

But some legal cliches are dangerous as

well as clumsy. For example:

• We think that for the purposes ofidemification only (habituallyapplied to the plan attached to aconveyance) means that the textualdefinition takes precedence if itconflicts with the plan. A moment'sthought shows that the phrase saysnothing like that. It says that the planis included only to identify the plot.Well, of course it is! So is the verbaldescription. No distinction is madebetween them, so this cliche doesnot give us the protection on which

we have been relying for years.

• Unless the context otherwise requiresis a more accurate disclaimer, but toovague to be of much help. If thewriter does not know whether adefinition applies to a particular useof a word, the reader is not likely to.And the doubt caused by thisslapdash habit detracts from theprecision of the document.

Let us think as we write, and cut out theclutter. It will greatly improve ourdocuments.

The civil service under Mr John Majoris continuing the plain English initiativelaunched in 1982 by Mrs Thatcher.

The Cabinet Office said recently:

The recently launched Citizen'sCharter is intensifying efforts tofurther improve governmentforms and leaflets.

For example, the Taxpayer's Chartercontains a commitment by the InlandRevenue "to belp you ... by providingclear leaflets and forms".

Cambridge CmIDcil has adopted a plainlanguage policy.

Simon Pugh, Head of Legal Servicesfor the city, is a long-standing memberof CLARITY, but the initiative is notlimited to his department. The councilhas been working with the PlainEnglish Campaign to produce

understandable forms, and many ­notably poll tax and housing documents- have already been "enplained". AndDeputy Leader of the Council JillTufnell said of internal reports: "I'mconfident they will get easier tounderstand. If' councillors don'tunderstand them they are encouraged tosay so."

The council is preparing its ownCitizen's Charter, and clearcommunication is one of its aims. "Weintend to treat our poll tax payers ashuman beings," said Mr Pugh. "Weexpect them to comply with theirobligations under documents wesupply, and it is in everybody's interestthat they understand them."

On December 9th CLARITY is givinga training seminar for the 12 metnbersof staff in the legal department. Theyhope to convert all their documents intoplain English within the next year. Thecouncil also intends to offer a mother­tongue translation service for the mainlanguage minority groups living inCambridge.

The Plain English Campaign isplanning a second internationalconference, in Hong Kong inSeptember 1992.

The first, held in Cambridge, wasreported in Clarity 18 (Oct 1990).

The PLI was created by the AttorneyGeneral's office in response to publiccriticism of obscure legal language.Its brief is to promote plain languagein the law, and thus access to thejustice.

Current projects are to:

Look at lay readers' problemswith legal materials, and themethods and attitudes of legalwriters, isolating the factorswhich cause difficulty;

Consider whether BC shouldenact laws mandating the useof plain language;

Investigate whether judgesinterpreting documents attachmore importance to formalexpressions or to the parties'intentions;

Computerise a bibliography ofplain language materials;

Set up a library;

Prepare recommendations tothe A-G's office on the designof statutes;

Investigate lawyers' attitudesto plain language, and to

2

» training .courses, and to consider adulteducation courses generally, as groundwork for thedesign of a plain language writing course forlawyers;

Prepare a strategy for the City of NewWestminster to adopt plain language;

Liaise with various special interest groups to helpthem prepare clear materials; and

Arrange a plain language conference, to be heldin October 1992 to:

Clarify theory;

Develop skills;

Discuss research;

Provoke further research; and

Consider the needs of a document's readers~particularly those with special problems.

Other projects under consideration are to:

Examine how lawyers' concern about the risks ofplain language inhibits their use of it;

Study the effect of legal education on communica­tion skills;

Consider the non-written communication of legalconcepts;

Create a dire.ctory ·of people and organisationsworking in the field of plain language;. .Prepare an in-house style guide;

Set up a precedent library;

Make materials available by fax;

Help the A-G's office implement its plain languagepolicy; and

Help individual law firms in the same way.

From a radio broadcast:

That would be a very double-edgedsword.

3

The clauses below are taken from the lease of ashop in an Essex precinct. But who is responsiblefor which boundaries? Small prizes are offeredfor:

(1) The interpretation nearest to that ofthelandlord's solicitors;

(2) The best letter explaining to the tenantwho has to repair the boundaries;

(3) The most numerous list of draftingerrors; and

(4) The best revision (for which you canmake any substantive changes necessaryto make your draft intelligible).

There shall be included in this demise:

(~ A moiety in each case severed verticallyof all dividing walls along the respectiveSouth and West boundaries of thedemised premises and also that part ofthe East boundary which is co-extensivewith 18 Long Ditton aforesaid other thanthat part of the South and Westboundaries which are respectivelyco-extensive with the passageway andthe pedestrian link and such. lastmentioned walls as also the fences (ifany) in prolongation therewith shall bedeemed to be party walls and partyfences

(ii) The entirety of all boundary walls and/orfences situate along the respectiveNorth and East boundaries of thedemised premises and also that part ofthe South and West boundaries whichare respectively co-extensive with thepassageway and the pedestrian linkother than that part of the East boundarywhich is co-extensive with 18 LongDitton aforesaid

Elsewhere, the lease requires the tenant to maintain"the demised premises" and "all party walls (and)fences" and

where necessary to join with the Landlord or atits written request with its tenant or tenants ofother part or parts of the Building in ... carryingout .. 0 repairs to anyone or more of such partywalls ... and to bear the proper proportion ofthe total cost .

Apart from a couple of people forwhom Fridays were inconvenient, nopreference was expressed for anyparticular day on which the suppershould be held. And 20 - about theusual number - came to this year'sevent, held at The Law Society's Hallon the last Monday in October.

Our speakers this year were thechairman of the bar, Anthony SerivenerQC, who has joined CLARITY, andJohn Ward, Director of Development atthe National Consumer Council.

Whenever ~he question of plain andsimple language crops up mostmembers of the legal professionimmediately and instinctively go on thedefensive. On this occasion I includewithin the definition of "legalprofession" judges as well, but I acceptthis is not always so. At a recent dinnerwhich I attended with Mc Justice Otton,I felt constrained to remind him, when atoast was proposed to the lawyers, thathe was no longer a lawyer and so wasnot included in the toast. On reflection,he agreed with the proposition,remarking that the Court of Appealhad said as much recently whencommenting on a judgment to whichhe had been a"reluctant party.

The problem is that most advocateshave a skeleton in the cupboard so faras the use of language is concerned.Despite the fact that we are simplepurveyors of words, carriers ofpertinent messages, salesmen ofpropositions and concepts capable offeats of oratory and of distinguishingbinding authorities from previous caselaw from the facts of the case withwhich we have been landed, terribleerrors can occur as in the heat of themoment we are driven by somewaywardness which is forever near the

elbow of the advocate, and muddleappears.

Thus it was that recently adistinguished member of the judiciaryfound himself saying:

Counsel sought to raise anotherargument at a very late stage but Iruled that this was water underthe bridge and could not be dugup now.

On the other hand, there was no erroron the part of Mr Justice Willis when,in the early part of this century, hecommented on the law of sewers. Hehad, so to speak, total mens rea, whichis a topic to which I shall return later.He said:

The truth is that the whole of oursanitary legiSlation is in a statewhich I hardly like to categorise inthe language that naturallysuggests itself.

I confess that on occasion I have beenguilty of error. I have done the things Ishould not have done and not done thethings I should have done. Sometimes ithas been lack of clarity of thoughtrather than of language. I recal\ beinghost to a multitude of foreign lawyers,when it was discovered that theinstantaneous translation was notworking. After the technicians hadfailed to remedy the situation and oneor two members of the Bar Council hadkicked strategic parts of the apparatusto no effect, I was pushed onto the stageto confront the multilingual masses. Ina moment of rare inspiration I wasasked what seemed at tlie time to be asensible question. I asked, "Please putyour hand up if you do not speakEnglish." Since no-one put up theirhand I concluded that we could safelycontinue the day speaking in English.

If lawyers are at risk from the careless,unclear use of language, so arepoliticians. I suppose the

4

lawyer/politician must be at optimumrisk. Thus it was that a member of theHouse of Lords asked the followingquestion:

My Lords, is my noble friendaware that the River Thames isone of the least used waterwaysof any major city in the world andis he aware that greater use couldbe made of heavy lorries?

And a member of a local authority wasfound saying that if the local busesstopped to pick up passengers theywould not keep to time.

I accept that advocates are oftenattacked for the over-polite use oflanguage in court. Elaborate attemptsare made by the judicious use oflanguage to, so to speak, wrap up themessage being conveyed to make itpalatable and acceptable for theaudience to r~ceive. Thus there hasdeveloped a code language - a sort ofprofessional gobbledegook - for use incourt. Each polite, or perhapsover-polite, phrase carries with it acoded message understood only bythose whose days are spent in court. Itcreates a mystique of courtesy whichwashes over the public gallery and thepress, but contains within it barbedmessages to those who know. I shouldgive some examples of the code to theuninitiated:

If it please your Lordship means Itwill not please your Lordship, buthe is just going to have to listen toit, so why not be quiet and listen?

With respect means Withoutrespect.

If your Lordship will be so kindmeans Do try to get the right pageor else we shall go part-heard.

I am instructed that means Don'ttry to pin this on me.

I will take instructions means Ihave not a clue.

Of course, the code sometimes works inthe other direction, when it is the judgewho puts out the coded message. Thus:

Their Lordships understand your

point means Your point is rubbish,so shut up.

It is a short point, isn't it? meansYou go on at your own risk.

I would respectfully wish todisagree with the view expressedby the trial judge means The trialjudge has gone bananas.

These coded messages enable thehearings to proceed in a civilisedmanner. It creates a cool, quietatmosphere for intellectual debate. It isso much better than shouting, "ForGod's sake, shut up!" or "I always saidthe retiring age should be 65."

Now no speech on this topic would becomplete without making someproposals for reform. That very word"reform" is one of the most misusedwords in our language. It implies achange for the better, whereas, moreoften than not, it is a change for theworse. On the other hand, thoseannouncing the change would not bedoing so if they did not consider it to bea reform. Hence reforms are born.

The first reform I would suggest incourt language is to bar Latin once andfor all. I believe that we shouldacknowledge at last that the Romansand their civilisation have gone foreverand that their language went with them.Let us demonstrate our erudition andlearning by the use bf our ownlanguage, rather than by demonstratingour knowledge of a dead language. Letthe classical scholars argue in Latin orGreek, but let us get on with thelanguage of the people.

Then there is the continual reference towhat the judge was before he is what heis now: Mr Justice Defmi"g (as he the"was). Who cares what he used to be? Itis about as relevant as referring to themaiden nanIe of a female judge. Let ushear no more of what the judge used tobe. It is a waste of time.

Then there is long-windedness. Theblame does not lie just with theadvocates. Whether we are goodEuropeans, federalists or oldEnglanders, we have much to learnfrom judgments from the Europeancourt. Unlike our courts, there is but

one judgment, 'and it is short. Thejudgments of our courts seem to getlonger and longer. The great Victorianjudges did not go on and on for pages.So what can be done to shorten things?

The first thing is to shorten the resumeof facts. In a recent judgment of theCourt of Appeal, those who wished toascertain the principle of the casewould have to start at page 46, as theearlier pages were a resullkS of the partsand statutory provisions.

Then there is the process of reasoning.The words of long dead judges arepicked over and cited at length. Hugechunks from the judgments of the pastare set out page after page. For whatpurpose? This endless citation is usedto demonstrate that the currentjudgment is an honest and logicalemanafion from the past. Yet afterendless extracts from past judgments,the clever judge can justify to theacademic legal world how hedistinguishes the case from theunrelenting line of authority from thepast. It can be used to demonstrate thatLord Coke in the 17th century wastalking through his hat, or that MrJustice Denman got it wrong in the 18thcentury. The poor advocate toils onthrough this exhaustive, exhaustingdissection of history. But all the public,the litigants, and the lawyers want is theresult, and what is the present state ofthe law. Ifcitation is necessary, what iswrong with citing the nanle of the caseand the page references relied on,without more? What we are interestedin is the decision.

Then there is the dissenting judgment.There is none in the European Court. Ifa case is to establish the law for thefuture, do we need pages and pages ofdissenting judgment?

The advocates have been able to keeptheir oral arguments concise by short,judicious references to previous cases,by skeleton arguments, and by avoidinga recitation of the facts. Judges shoulddo the same in their judgments. Theparties can agree a statement of facts tobe included separately in the lawreport.

If the judges agree, must they all givejudgments, the effect of which is often

5

that where they have given differentreasons for the decision, they merelystore up manna for the advocates of thefuture. How do the European judgesmanage to concur in one judgment?Whatever gnashing of teeth and strongwords there may be behind the scenes,one concise judgment is the final result.

In fmal mitigation on behalfof the lagalprofession, forgive us for our sins, butbear with us as we toil through thejungle of modem legislation and thepages and pages of modem judgments.

I wish all messages could be as short,sharp, and interesting as thi.s one, whichI read recently in the for sale column ofa local newspaper:

For sale: tombstone suitable forsomeone called O'Reilly.

Thank you for the invitation. I havelong been an admirer of CLARITY.You are crucially important in the warto stamp out gobbledegook.

My own experience

Is there any significance in yourinviting me at the start of The LawSociety's Make a Will Week? Let metell you about my bad "will" experiencelast year.

I sent a solicitor a copy of my willannotated to show the changes I wantedto make. I asked that the new willshould be written in plain and simpleEnglish. After 6 weeks I received a2-page letter giving me infoffilation Idid not need and had not asked for(including a paragraph on PETs that Idid not understand and advice aboutinlleritance tax) and a draft in the usuallegalese:

I hereby revoke all former Willsand Testamentary Dispositions ....

I give all my real and personalproperty whatsoever andwheresoever not hereby or by anycodicil hereto specifically

disposed ....

There was one sentence of 120 wordsand not a single punctuation mark!

I gently remonstrated and received avery stern letter back saying:

As lawyers we are, to a greatextent, bound by precedent andwe have neither the resources,nor the ambition to be trail blazersin devising new words for Wills....

Expressions like testamentarydispositions are tried and tested inthe courts....

and, finally, a wrist-slapping:

I regret you had to write to thefirm as you did.

Shortly afterwards I received the finaldraft for signature and - defeated - Isigned it. Then I got the bill: £172! Thiswas (believe it or not) for receiving andtaking my instructions and included acharge for aqvising me on inheritancetax.

I wasn't satisfied so I complained to thesenior partner. The good news is that hewaived all the bill and said they wouldreview their practice. The bad news isthat I still have the will. If I pop myclogs before I can get it changed I willbe - posthumously, at least - thelaughing stock of the Plain EnglishCampaign which I helped found, andmy family will be crossed off ChrissieMaher's Christmas card list forever.

Why the Na.tiOlUlI Consumer Councilis interested ip pla.in English

NCC was set up to identify andrepresent the interests of consumers,expecially disadvantaged andinarticulate ones. Within a month of ourformation in 1975 we announced acampaign to cut gobbledegook. My firstjob at NCC was to lead a review ofwelfare and social service leaflets.Chrissie Maher, who went on to foundthe Plain English Campaign, was then amember of my Council.

When NCC reviews any goods orservices, private or public, it is in termsof how far basic consumer criteria are

observed. Those criteria are:

Information, access, choice, valuefor money, safety, equality ofopportunity, complaints proceduresand getting redress, and whetherconsumer interests are representedwhen key decisions are made.

But the adequacy of informationunderpins many of those other criteria.We have found in almost all theinvestigations we have done in the last16 years that the customers werefrequently baffled by the forms, leafletsand standard letters they received, andintimidated by the people sending them.This applied whether we were lookinginto banks, the credit industry,nationalised industries, local councilservices, health, social security, or legalservices - but especially legal services.Too often people did not know theirrights or how to assert them, and theyhadn't a clue what they shouldreasonably expect of those services.This made them ineffectual consumersand contributed in no small measure tothe dismal performance of so many ofthe services: bad consumers make badservices.

Making Good Solicitors

A couple of years ago, NCC publisheda short report ambitiously calledMaking Good Solicitors: the place ofcommunication skills in their training.

We were concerned with the apparentdifficulties some clients and 'theirsolicitors have in understanding eachother. We took the view thatresponsibility for good communicationhad to fall, in the main, on solicitorsthemselves. They are paid to use theirknowledge and skills to advise and toserve the best interests of their clients.We found that when clients complainabout their legal advisors, it is muchmore likely to be due to poorcommunications than to an issue ofprofessional misconduct. We foundCABx were getting "a steady stream ofpeople coming in to complain abouttheir solicitors, usually clutching aletter, or a bill, or both, that they didn'tunderstand. It is ironic that they wentto a free public service for anexplanation of advice they had paidfor.

6

In the report we recommended:

1. The Law Society shouldroutinely monitor the nature andextent of communicationproblems between solicitors andtheir clients.

2. The "written professionalstandards" in The Law Society'sProfessional Conduct of Solicitorsshould be enforceable and anybreach of it should lead to areduction of fees.

3. The initial training of solicitorsand their continuing in-servicetraining should emphasisecommunication skills - written andspoken.

4. Solicitors should encourageclients to ask if they don'tunderstand.

5. An award scheme for articledclerks for best communication ­oral and written - organised byThe Law Society and the PlainEnglish Campaign.

Are we making any progress on therecommendations? I'd like to knowfrom you.

CLARITY's experiment

Finally, if I ever needed reminding ofthe extent to which the gobbledegookvirus has infected the legal profession,Mark Adler's article in a recent NewLaw Joumal does it superbly. Manyof you will have read it. I wonderhow many other solicitors would beprepared to test their clients' loyaltyto them by setting them anexamination.

The results show how badlyCLARITY's campaign is needed.

Mark has given us the evidence ofsomething that those of us in theconsumer movement have known forsome time, but couldn't prove:

• Your clients understand a lotless than you think they do; and

• They will assure you theyunderstand when they don't.

And of course they are more likely tothink badly of you and complain abouta disappointing result if they have notunderstood what you are doing forthem.

You as a profession are not alone withthis problem. But at least some of youare takii1g it "eriously.

A Illst comment

Recently, a bunch of planners inHammersmith took exception to a pieceof plain English in a public consultationbrochure which their departmentintended to put through every letterboxin a certain neighbourhood. It said that"such and such a road was causing abottleneck". This was too much forthem, so they had "bottleneck" changedto "localised capacity deficiency".

The members of the existing committeestood successfully for re-election in theabsence of other nominations orvolunteers. They are (in alphabeticalorder, and with the date of originalelection to the committee in brackets):

Mark Adler, a solicitor working alonein a suburban generalpractice (1984);

Michael Arnheim, formerly a Fellowat Oxford University, now a barristerin general practice in London (1988);

Patricia Hassett, professor of law atSyracuse University, but presently inLondon serving on the LordChancellor's Advisory Committee onLegal Education and Conduct (1990);

Alexandra Marks, a partner in theproperty department of a City firm ofsolicitors (1988); and

Justin Nelson, a partner in a countryfirm of solicitors (1985).

From a letter written by a Citysolicitor to his client:

You should sign the will inthe presence of twowitnesses, one of whommust nqt be your mother.

We are looking for a suitable restaurant,within easy reach of the main Londonrail terminals, for next year's annualsupper.

Even taking a private room, weanticipate that this will be muchcheaper than hiring accommodation atThe Law Society; it will allow us awider choice of food; and enable us torun on tlfroughout the evening if wewish, without paying for security ortrespassing on the free time of The LawSociety staff.

Dr Michael Amheim is representingCLARITY in negotiations withLeicester Polytechnic to run a seminarwith them on litigation drafting,probably in April 1992.

We hope to puhlish details in the Marchissue, but anyone interested in attendingshould contact Dr Arnheim meanwhileat the address on the back page.

(•••••••••fL~.,S ••O~ •••se~~ars ••••••)

CLARITY has now giVlm some dozenhalf-day seminars, and bookings arestill coming in. So far, they have allbeen given for large firms of solicitors,local authorities, and in one case, TheLaw Society. They have been staged atthe client organisations' own premises.Details appear in the advertisement onpage 16.

The financial arrangements havechanged since the project was first

7

announced. Mark Adler is nowresponsible (through his firm) for theadministration as well as the teaching.He pays CLARITY 10% of his fee or£50, whichever is more, and a smallamount for advertising.

We are now exploring the possibility ofrunning the seminar in a hiredconference room, at a fee in the regionof £100 + VAT per delegate. With 4continuing education points on offer,this compares favourably with othercourses. We hope it will attractdelegates from the smaller firms. Again,we hope to announce details in theMarch issue, but anyone interestedshould contact Mark Adler meanwhile atthe address on the back page.

I·.·.··•·..•.. •.·.•··.•·•··••· ••• /</•••••••••••••()Jj~_ ••••••••••••••••••••••••• ···················1\<Q~ ..d.It_~~rYe$(

<CH::::::.?

As can be seen from the advertisementbelow, CLARITY is commissioning themanufacture of a tie, which we hope willhelp promote the organisation.

We are also discussing with the samesupplier the provision of women'sscarves with the CLARITY logo.

Anyone requiring CLARITY bracesshould contact Arthur Daley.

CLARITY TIE

For sale

Navy blue ties with theCLARITY logo

(as nearly as it can bereproduced)

£8.50 each

Please order from our EastMolesey address as soon aspossible, so we have an ideaabout the size of the demand.

Production to take until aboutMarch, so we will not cash yourcheque until we deliver.

L

-Garth Thornton QC recommendedthat:

1. Governments should vigorouslypromote an understanding thatplain language and clear laws arethe responsibility of all thoseconcerned with the legislativeprocess, and that they are not just atechnical problem for the drafter.

2. Governments should acceptthat a separate duty exists, afterenactment, to commlmicate thecontents of a statute to thoseaffected by it.

3. Law drafters should beencouraged to use moderntechnology.

4. Stylistic practices, andprecedents of commonlyrecurring provisions, should bemaintained in a practice manualand regularly reviewed.

5. Greater attention should bepaid to the. teaching of writingskills to student lawyers.

6. Statutes should be reprintedwith amendments incorporated.

7. Consumer statutes shouldwhere necessary be redrafted inplain language.

Shri Dinesh Goswami, UnionMinister of Law and Justice.. India,made a speech welcoming CLARITY'sproposals, and underlining theimportance of commooicating law to

the lay citizens; plain language must beused if this was to be achieved

He also referred to the problems ofsimplifying statutory drafting in the 15Indian languages as well as English.Since 1973, the translation into thelocal language had been theauthoritative version of any law, butnot all English legal concepts werereadily translateable. "In finding asatisfactory answer to these problems,"he said, "linguists and legal experts aresometimes forced to adopt words andphrases which are less intelligible thanthe English text itself." To improve thesituation, they are developing glossariesof nationwide standard expressions.

Sir Kenneth Keith, deputypresident of the New Zealand LawCommission and now a member ofCLARITY, quoted Queen Victoria's1840 instruction to the governor of thatcoootry that all laws

be drawn up in a simple andcompendious form. avoiding asfar as may be all prolixity andtautology.

Sir Kenneth mentioned many

outstanding exam pies of gooddrafting, ... from the very firstSupreme Court and conveyancingordinances....

He continued:

The high quality of such statutesis of course the consequence ofseveral factors, including usuallyclear thinking and decision

8

making... , good instructions toParliamentary Counsel, a goodgrasp by those involved (in theexecutive branch and inParliament) of the wider political,administrative, legal andconstitutional context, andsufficient time....

The design of the statute bookhas been changed throughout thiscentury. So the page is nowsmaller than a century ago, thesetting easier on the eye, and theline length shorter. Numbers areno longer spelled out in wordsand references to statutoryprovisions are shorter.

Statements of purpose

More statutes now include anexpress statement of purpose....

Accessability of inherited law

Parliament, building on work donethroughout the Commonwealth(especially in Australia). recentlyprovided a definitive list of ourinherited statute law and .. , amore direct draft Bill than theoriginal (Imperial Laws Applica­tion Act 1988)....

The internal organisation ofstatutes

The organisation of statutes moreoften places the importantsubstantive provisions first andthe less significant institutionaland procedural matters last....

Consistent approach to principle

The substance of statutes

increasingly reflects a consistentapproach to recurring matters ofprinciple....

Many of (the new principles andpractices) are brought together bythe ,Legislation AdvisoryCommittee in Legislative Change:Guidelines on Process andContent. published in 1987 andendorsed by the Cabinet later thatyear....

One of the important projects SirKenneth described was the preparationof a Legislation Manual., in which theCommission recommends the use of:

Extract from a Pubic Trust Office will

Earlier wills

1. I cancel my earlier wills.

Executor and trustee

2. I appoint the PUBLIC TRUSTEE of New Zealand ("my trustee")the executor and trustee of this will.

Guardian

3. If my wife dies before me, I appoint my sister AMY the guardian ofmy children.

• purpose provisions instead oflong titles;

• varying typography;

• Arabic rather than Romannumerals;

• short sentences;

• a clear, logical order ofpresentation;

• the present tense; and

• the active voice;

and the avoidance of:

• inappropriate capital letters;

• archaic and unusual words;

• unnecessary fictions; and

• unnecessary quaiifications' topropositions.

All statutes are being computerised, but

We have yet. I think, properly toassess the computer's potential fora much more accessible, principledand coherent statute book.

The Public Trust Office, which(among other duties) provides a publicwill-drafting service, reported that inOctober and November 1985 two seniorstaff solicitors rewrote 240 willprecendents in plain English, andcirculated the drafts for consultationbefore they were adopted.

An example is shown above opposite.

Gender-neutral draftin2

from Julia Wakelam1 Woodhall Street, Bury St

Edmunds, Suffolk

Have you never heard the following:-

Lizzie Borden took an axeand gave her father forty whackswhen she saw what she had doneshe gave her mother forty one

More seriously, your article NeutralLanguage in the last issue was bothoffensive and inaccurate. One does nothave to bea philosopher to appreciatethat the use of language reflects asubconscious bias and that, conversely,a conscious use of language can helpeliminate bias.

Mark Adler replies:

Ms Wakelam's suggestion that theproblem is philosophical (and notpsychological) reveals her ownunconscious (not "subconscious") bias:that the answer is something we canimpose on the world rather than the otherway round.

Nor am I sure that her conclusion is right.It does not follow logically (if indeed she

9

intends it to) from the assumption thatthought patterns are reflected in language;and she offers no evidence in supporl ofthe asserlion. My (ill-informed) view is thatit is more likely that the lIl1conscious use oflanguage affects thought; conscious useseems to lead often (as it did.in myarlicle)to ridicule.

I agree that we should try to developgender-neutral language, and it is a pitythat Ms Wakelam did not comment on theconstructive proposal I made, nor on thereasoning I offered.

Whilst I was taken aback by the vehemenceofher condemnation, I still do not see whyit is offensive to say (even ifinaccurately)that women do not chop people into smallpieces.

"Atarms'lenlUh"

from Professor Peter ButtLaw Foundation Centre for Plain

Le2al Lan~ua~e, University ofSydney. Australia

On page 13 (Clarity 21) there appearsyour suggestion about the meaning of"at arms length". Could I suggest:

Two people agree upon a deal atarms' length if they bring

-

independent minds to thequestion whether they will enterinto the deal, with neither person'sjudgment being overborne by theother person.

Law reportine

from Andrew Melling117 Burnt Ash Road, London SE12

8RA

I cannot recall any law report beingcriticised for its language, so this maybe a first.

In the headnote to the report of Hiscockv. Outhwaite (no.2) (1991 3 All ER642), paragraph 2 (reproducedopposite) consists of three sentences.There are no difficult words and manyof the words are short but the first'sentence contains 187 and the second110, without so much as a semi-eolonto provide relief. The third sentence,with only 8 words, has no place in thisparagraph, since it sets out theconclusion from paragraphs 1 and 2.

My ability to understand the sentencesis hampered by my complete ignoranceof the subject matter; but surely a sevenpage judgment could be summarised inmore accessible language than this.

I sent a copy ofMr Mel/ing's letter to thepublishers for comment, but they have notreplied. - Ed.

However, where the enforcing court and the court of the country

whose law governed the award (the curial court) were one and the

same and application was made to that court to set aside or

suspend a Convention award that court could exercise both thecurial court's supervisory power to set aside or suspend the

award and, at the same time, the enforcing court's discretion to

permit the pending supervisory process to continue and to refuse

enforcement of the award if that process resulted in the award

being suspended or set aside by itself as the curial court, since

where application was made to itself, as the curial court, to setaside or suspend the award it had as the enforcing court power

under section 5(2) of the 1975 Act to refuse enforcement of or

reliance on the award and power under s.5(5) to adjourn the

proceedings, notwithstanding that the only 'proceedings'

consisted of the application to itself as the curial court to set

aside the award in which necessarily the award was being relied

upon by the party seeking to' have it set aside. Accordingly,although under s.3(2) the award, being a Convention award, was

binding for all purposes and could be relied on in any legal

proceedings, that was subject to the award being enforceableunder the Act, which was an issue to be decided by the English

court as the curial court because the arbitration was governed by

English law, and since.the English court was both the curial courtand the enforcing court the High Court remained capable of

exercising its curial jurisdiction over the arbitration and of

adjourning, it it thought fit, any decision on the enforceability of

the award until the pending proceedings for review had been

determined. On those grounds the appeal would be dismissed.

Misunderstood phrases

from Alan King11 Nelson Avenue, St Albans, Herts

ALl 5SE

While reading the August Clarity, I wasforcibly stmck by the item on page 2 inwhich it was reported that many peopleseriously misunderstood the phrasewithout prejudice. It is of course legalshorthand, but it is not surprising thatlay readers thought it was intended toindicate impartiality. An importantphrase which is misunderstood is moredangerous than one which is notunderstood, and I think that CLARITYshould compose an alternative, andpush for its adoption throughout theprofession. A Latin phrase, or one inSwahili, or some initials, would be

,hetter than an English phrase whichseems to mean almost the opposite ofits intended meaning.

What about "Off the record" or "Not fordisclosure to the court"? - Ed.

Another pair of misunderstood words,although this is not so serious, is Ourreference. Judging by the quantity ofletters I receive on which it is not quoted,it is clear that some people - even inbusiness - do not understand that they areasked to do so. Perhaps they think that therandom sequence ofcharacters is merelyto enable the sender to file the copycorrectly. We are so used to theexpression that we do not realise that lessexperienced people will misunderstandit, and we put its omission down to

10

laziness. T recall one instance when atelephone enquirer was asked: Have yougot a reference? and she took this tomean that we would not deal with herunless she had a referee who wouldprovioo a "reft:rence" of the kind requiredwhen someone applies for a job.

All business letterheads should haveWhen contacting us please mention ourreference: prominently shown, in thehope of getting the message across. Iknow it is longer than usual, but itwould be printed, and the purpose ofthe "reference" should be clearer to therecipient than Our ref.

This point had never occurred to me,though I have long suspected that weoveruse references. The length of somesuggests that the firm has more files than

there are atoms in the universe, which isunlikely during a recession. I have beenthinking of abandoning the reference inmy firm, where the writer's name appearsat the bottom of the letter, and files arestored by the name which appears in the"re" line. - Bd.

Prescribine the layout of forms

from David LewisInformation Design Unit

79 High Street, Newport Pagnell,Bucks MK16 8AB

The Consumer Credit Act 1974 notonly prescribes words that must appearon hire agreements covered by the Act,but it also dictates how they must bepresented. This extends to emphasisingparticular words in the prescribed text,the relationship between their

typography and that of the rest of theform, and the use of boxes aroundcertain words.

All these rules mean that the relevantforms are, almost without exception,dire to look at and read, andconsiderably worse than they would beif the Act was less prescriptive aboutwhat things should say and look like.

While there may sometimes be goodreasons for laying down the exactlanguage and design that should beused in documents, I think that this ismore often unhelpful. It means that thelanguage and design are ossified. Withthe CCA, it means that documentsproduced now are restricted by whatwas (perhaps) acceptable 17 years ago,but is now quite outdated.

When I worked in the DHSS DocumentDesign Unit we made a point ofpromoting the idea that Acts andRegulations should not includedocuments that had to be reproducedexactly as they appeared in the legislation.This might be something that CLARfIYwould want to urge more generally.

I asked David Lewis ifthe regulations hadnot been updated since 1974, and he sentme an extract from a form prepared underthe rules now in force. This appearsbelow.

He also said that the regulations do notdemand il minimum type size, but onlycomparative type size, and that the largeamount ofprescribed information miliJatesagainst the use of large type even by awilling drafter. - Bd.

This is a Hire Agreement regulated by the Consumer Credit Ad 1974. Sign rt only if you want to belegally bound by rts terms.

Signature(.) of Hirer(s)Under this agreement the goods do not become your property and you must not sell them.

YOUR RIGHT TO CANCEL

Date(s) of signature(s)

Once you have signed you will have for a short time a right to cancel this agreement. You can do this by sending or taking a WRITTEN notice of cancellation to TheGeneral Manager XYZ plc at the above address.

If you cancel this agreement, any money you have paid, goods given in part exchange (or their value) and property given as security must be returned to you. Youwill not have to make any further payment.

If you already have any goods under the agreement, you should not use them and should keep them safe. (legal action may be taken against you if you do nottake proper care of them.) You can wart for them to be collected from you and you need not hand them over unless you receive a written request. If you wish,however, you may return the g~s yourself. •

IMPORTANT - YOU SHOULD READ THIS CAREFULLY - YOUR RIGHTSThe Consumer Credit Act 1974 DOVers this agreement and lays down certain requirements for your protection whi~tl must be satisfied when the agreement is

made. If they are not, XYZ plc cannot enforce the agreement against you without a court order.

If you would like to know more about the protedion and remedies provided under the Ad, you should contact either your local Trading Standards Officer or

Alexandra Mills is an Australian lawyer on leave from herfirm, where she is responsible for publications and forin-house training.

After a stint in Boston. she is in London until the end ofDecember, studying methods of training lawyers in plaindrafting.

When she returns to Australia she will be seconded to theLaw Foundation Centre for Plain Legal Language.

11

After representations by CLARITY, the clerks atthe stamp office have been instructed not to insiston the traditional wording of the certificate forvalue, which reads:

It is hereby certified that the transaction herebyeffected does not fonn part of a largertransaction or of a series of transactions inrespect of which the amount or value, or theaggregate amount or value, of the considerationexceeds £30,000.

Certificates are to be considered on their merits.

-

Clause numbers refer to the "wholebuilding" version ofthe lease.

The un-named commentator in Clarity21 (August 1991, p.17) properly referswith enthusiasm to The Law Societypromoting the use of plain English,which he (or she) welcomes in theseforms. So do I, and the drafters deservecongratulation on their achievements inthat respect. Even if the only impact of'the new forms is the demonstration thata modem style of drafting is practical,all the effort will have beenworthwhile.

As with any draft, however,particularly one's own, it is alwayspossible to look back at some phrasesor concepts and think, afterwards, thatit might have been done differently andsometimes better. On the assumptionthat CLARITY members will by nowhave a copy of the document constantlyby them, that is the purpose of thisarticle. It is not concerned withsubstance, except incidentally to themeaning caused by drafting choices.

Use allowed

The first port of call on this voyage ofexploration is, on page 1, use allowed.

Why was permitted use rejected? Theanswer may be because of its technicalmeaning in the Planning Acts, but thechosen phrase reads much moreawkwardly than the more familiar one.

A more serious complaint is that theuse allowed provision perpetrates a•stuffed definition·, which some rate asa regrettable drafting fault. Thedefinition contains a substantiveprovision (that is the "stufting") for itreads for use as ... or any other use towhich the Landlord consents (and theLandlord is not entitled to withholdthat consent unreasonably). When that

is tucked away in the definition, it canbe overlooked when construing thesubstantive clause. The phrase wouldhave been much better sited in the Useclause, clause 3, in the text.

Moreover, there is a problem with themeaning of the new expression. Is itmerely the equivalent of such consentnot to be unreasonably withheld? Thatphrase allows no claim for damages,but only the self-help sanction of doingthe forbidden act in the teeth ofunreasonable withholding (subject tostatutory amendment for alienationclauses under the 1988 Act).Alternatively, the new wording maymean and the landlord agrees not towithhold consent unreasonably, whichdoes give a remedy in damages. Eitherphrase would avoid the uncertaintywhich the new mid-way phrase creates.

The same remarks apply when thephrase is used elsewhere in the leases,e.g. in clauses 3.6, 5.7 and 6.2.

In any event, is not entitled to equalsmay not.

Words and figures

An odd survival, also on page 1, is thewords and figures usage for rent: __pounds (£__ ).

Payment of insurance premiums

A second apparent ·change for the sakeof change" appears in clause 1.2. Thetenant must pay the landlord the amountof every premium ... , to be paid [threesurplus words] within 14 days after[written notice] (and this amount is tobe paid as rent.

Does this last phrase mean otherwise itmay be recovered as if rent in arrears?That appears to be the intention. This issignificant for the availability of

12

distress, and is highly significant indeciding which forfeiture regimeapplies - rent or non-rent.

It is arguable whether the new wordingonly has that one possible meaning.

Incidentally, with 14 days allowed inclause 1.2, and another 14 days in theforfeiture clause 12(a), one is soon upagainst the risk of waiver of breach byaccepting rent with knowledge of thebreach, because of the policy decisionto opt for monthly rent as the norm. Thepresent writer does not share the earliercommentator's enthusiasm for thatinnovation.

VAT payable

Next, one asks why is it any valueadded tax payable in clause 1 and valueadded tax where payable in clause 2?

Insured ri~ks

A more serious lack of consistency isthe switch from insured risk in clause5.4(b), excusing the tenant from makinggood the damage so caused, to any ofthe risks to be insured in clause 9, thecesser of rent clause.

The former arguably relates only torisks in fact insured; a landlord failingto cover all the risks listed in clause 11would be in breach of that obligationbut the omitted risk is nevertheless notan insured risk within clause 5.4(b).

Why change the wording? In fact,insured risks is a prime candidate for afront page definition anyway.'

The tenant's payment obligations

A similar "wobble" appears elsewherebetween clauses 1 and 2. The formerstarts boldly. The Tenant is to pay theLandlord but clause 2 starts The Tenantis also to make the following payments.The clause 2 payments are all to thirdparties, which may be an explanation,but The Tenant will pay covers both andis clear and direct. .

Defined terms

The writer wishes all the definedphrases had initial capital letters, as thatseems a helpful and well understood

convention. Only Landlord and Tenantare so treated in the new documents, sonone of the others signals its definedstatus in the text.

Active and passive

There is a sudden switch from active topassive voice in clause 6. This opensThe Tenant is to comply with thefollowing: but clause 6.4 runs theLandlord's solicitors are to be notifiedand a copy sent to them.

It would be more consistent to say theTenant will notify the Landlord'ssolicitors and send them a copy. It maybe objected that the notifier/sender, forsay a mortgage, would be themortgagee, but there is still merit inimposing the obligation directly on thetenant, leaving him to delegate it (at hisown risk) if he so chooses. The

obligation cannot directly bind themortgagee.

Landlord's obligations

Clause II produces the mild absurdityof The Landlord agrees with theTenant: (a) the Landlord is to keep ....

Nothing is added by the Landlord isexcept three words.

The wording of the covenants

The End of Lease clause, clause 13,does not start The Tenant agrees withthe Landlord but reads ... the Tenant isto.

Again, the issue whether a covenant isimposed by that wording, (clause 1 onpayment also uses is to). Here thereseems little doubt, but no-one would

suggest that the Tenant agrees with theLandlord was not user-friendly,bus-queue English. One detects anothermild instance of a rather firminsistence on novelty. Such novelty isharmless enough in this clause but itmay contain hidden traps elsewhere, asin the provisions on withholdingconsent.

Conclusion

Despite these mild reservations, thewriter repeats his admiration for a goodexample of concise modern drafting.Perhaps the minor defects are theproduct of conunittee drafting andcompromise, or the inability of TheLaw Society to fmd a computerprogram to eliminate unjustifiablevariations. Who of us would ,notwelcome such a program to scan ourown products?

We occasionally receive gifts of materials from members and organisations. Below is the beginning of a list of books andpamphlets held by the chairman. Ifanyone is interested in any item, please telepone 081 9790085 during office.hours.

There is not enough room in this issue for the complete list, and it will be continued in the next issue.

AUSTRALIALegislation, Legal Rights and Plain English (discussion paper), Law Reform Commission of Victoria 1986.Plain English and the Law (report), Law Reform Commission of Victoria 1987.Austudy Regulations, Australian Government 1990.Reader Friendly Documents Kit, Australian Government 1990.CANADAPlain Language and Legal Writing in Quebec (unsigned and undated article, by David Elliott?).Plain Language Resource Materials (bibliography), CUC 1990.The Decline and Fall ofGobbledygook: Report on Plain Language Documentation, Canadian Bar and Bankers' Assocs 1990.Plain Language Consumer Contracts (discussion paper), Government of Alberta 1991.Municipal Government in Alberta - A Municipal Government Actfor the 21st century, Government of Alberta 1991.A Plain Lenguage Report (1st annual report of the Plain Language Institute of British Columbia, 1991.ENGLANDConveyancing Simplifications (report), The Farrand Committee 1985.The Plain English Story, Plain English Campaign 1986.A Lamentfor the Law Commission, Richard Oerton 1987.Memoranda ofthe 1990 Meeting ofCommonwealth Law Ministers (Part 1), Commonwealth Secretariat 1991.Winding up an estate and When I'm 65 (leaflets), Richard Oerton and The Law Society 1991.SPAIN (all published in Catalan by the School of Public Administration, Catalonia)Revista de Llengua i Dret, 1990.Formulari de Procediment Administratiu, 1990.Manual de Llenguatge Administratiu, 1991.USAScribes Journal ofLegal Writing (Voll), West Publishing 1990.

13

Lord Mackay, the Lord Chancellor, wasat the Plain English Campaign's 12thannual award ceremony on 2ndDecember to collect his department'saward for the recently redesignedcounty court default summons form. Itwas also announced that PEC hadawarded their prestigious ChrystalMark to the new divorce leafletsproduced by the same department.

The awards were sponsored by theNational Consumer Council· a, .long-time supported of PEC, and byVideo Arts, who have taken over themarketing of the Campaign's PlainEnglish Course.

The other winners were:

Department of Social Security,for their Disability workingallowance claim pack andinformation sheets;

Department of Trade & Industry,for their Brussels, can you hearme? brochure;

The Employment Service, fortheir Helping you back to workleaflets;

Inland Revenue, for their Incometax and YO!4ng people educationpack and You and the InlandRevenue, a leaflet produced underthe Taxpayer's Charter initiative;

Hastings Health Authority, fortheir Stress busters booklet;

London Lighthouse, the AIDScharity, for its leaflet Introductionto London Lighthouse; and

Midland Bank, for their brochureBusiness banking charter.

A new category of award, for clear

news reporting, was given to TheIndependent, and to the BBC for bothits Newsnight and Northwest Tonightprogrammes. The London EveningStandard refused its award because itwas offended by the description "BestRegional Newspaper"; it is apparently anational newspaper, though onlyavailable in the London area.

On the distaff side (if one can say thiswithout offending the champions ofagricultural produce), the Campaignoffered Golden Bull awards for eightexamples of gobbledegook.

Out of respect for his office, the firstwent to Dan Quayle, the Vice-Presidentof the United States, for this quotationin the Washington Post:

We offer the party as a big tent.How we do that (recognise the bigtent philosophy) within the plat­form, the preamble to the platformor whatnot, that remains to beseen. But that message will haveto be articulated with great clarity.

The representative of a Hertfordshirefirm came to the ceremony to collect aGolden Bull for this extract from itsconditions of sale: I

In the event of the goods beingsold by the buyer in such manneras to pass to a third party a validtitle to the goods, whilst any suchsums are due as aforesaid, thebuyer shall be the Trustee for usof the proceeds of such sale or tothe claim for such proceeds andthe buyer shall place suchproceeds in a separate account.Nothing herein shall constitute thebuyer our Agent for the purposeof any sub-sale.

He asked how he could recover the feepaid to his solicitor for drafting this 13years ago, and as a humanitariangesture the award was withdrawn.

14

Other good-natured recipients wrote orattended, promising to do better infuture. In particular, the chief executiveof the West Bromwich Building Societywrote that his predecessor, who hadpenned its winning entry, had takenearly retirement (some time) afterwriting to a borrower:

As you have already effectedinsurance cover Mrs Smith with theDirect Line Insurance Company,the Society would certainly agree ifit would assist you, to thisinsurance remaining in effect untilthe next renewal date in June 1991and then the Society could arrangeinsurance cover as referred toabove, under Block PolicyArrangements with the GeneralAccident Insurance Company, butI look forward to hearing from youbearing in mind the administrativedifficulties for the Society if aborrower .effected their owninsurance cover, Mrs Smith, thatyou will agree to the Societyeffecting the normal insurancecover from the next renewal date inrespect of the insurance with theDirect Line Insurance Company, inJune 1991.

The well-attended reception was anopportunity to market the Plain EnglishCourse. This consists of a trainer'sguide, material for 48 students, and acopy of The Plain English Story, whichdescribes the aims and history of theCampaign. The course is in 17 parts,and in its full version lasts 2 days.

The awards ceremony was attended byseveral government ministers and waswell reported in the press.Congratulations to Plain EnglishCampaign on another publicity coup,and on their routine hard work andsuccess - often behind the scenes - ineroding gobbledegook.

The Plain English Course is availablefor £695 + VAT from:

Video Arts68 Oxford Street

London WIN 9LA

Tel: 071 637 7288Fax: 071580 8103

Introduction

The inaccessability of statutory law tothe public at large and even to legalpractitioners, especially legal pract­itioners outside major urban centres, hasincreased, is increasing and ought to bediminished.

Statutory law is inaccessible in twomajor respects.

1. It is hard to find.2 Once found, it IS hard to

understand.

Hard to find

A combination of factors makestatutory law (which is increasinglybulky and prolix) hard to find to ascandalous extent. These include thefollowing:

1. A major new statute may have beenenacted but be unllvailable' forseveral weeks. Meanwhile one has tomake do with the Bill, which willnot, however, include the latestamendments; and clause andsections numbers will notcorrespond.

2 No sooner has a statute been enactedthan it may be subject to massiveamendment.

3. Even when legislation IS

consolidated this may then bebubject to immediate change.

4. Primary legislation may be changedby statutory instrument made underother primary legislation.

5. Different sections, and evensub-sections, are brought into effect(by a successtion of commencement

orders) on different dates over a periodthat may run into years.

6. Notwithstanding that we are in theage of word proce~;sing, and deb'Piteexperience elsewhere, how a statutecurrently stands can be discoveredonly by an elaborate and time­consuming paperchase or by resort(id some areas) to expensive updatesor Lexis.

7. Although the legislation itself israrely skeletal, a mass of flesh isoften added by statutory instruments,bubject to a minimum of parliamen­tary scrutiny. Moreover, statutes andstatutory instruments made underthem are drafted in different offices.

8. Even when it is possible to gainaccess to all the relevant and mostup-to-date legislation on a particularsubject, this will often not be enoughto provide a complete picture of thelaw: one commonly has then toattempt the difficult task of com­pleting and understanding the jigsaw<:reated by the combination of legis­lation which covers certain ab'Pectsof an area of the law, and caseswhich continue to cover the rest.

9. Many other areas of the law whichcould now readily be codified arestill to be found only from casesdecided over many years andscattered across a number ofdifferent series of reports.

Hard to understand

If the searchel' aftel' enlightenment has notalready been defeated in the quest todiscover what statutes and statutoryinstruments currently in force say, he orshe is then confronted with the task ofdivining what they mean. If judges

15

(encouraged by the Courtof Appeal) incants thewords of a statute, thenthey are liable to be met bylooks of blank incompre­hension from the jury. Ifthey are able to paraphrasethe statute in a way that issimple and suited to a layaudience then one must askwhether this could notusefully have been done byParliament in the first

place.

Bewildering complexity is by no meansconfined to revenue statutes. Althoughthere is scope for mathematicalformulae, as the Renton Committee onthe Preparation of Legislation (Cmnd6053) suggested, in paragraphs 11-20,those for the calculation of mainenancein schedule 1 to the Child Support Billare a glaring case of misuse. Is it nottime for a return to the style of the Saleof Goods Act 1893?

Very often, the vices identified aboveare found in combination. For example,the draft Commonhold Bill is very long,very involved and very complicated,and yet very important provisions areleft to regulations.

Moreover, often three (or more) sets ofprovib'ions have to be considered: oldlaw which has been repealed but is stillrelevant for some purposes; new lawwhich is not yet fully effective; andextremely complex transitional provi­sions, which will remain part of thestatute long after they have ceased to beapplicable.

What should be done?

The main problems are the attitude ofgovernment (which drafts virtually alllegislation) and the need to consider thelegislative process, democratic andthorough though it is capable of being.The Bar should identify and promote aseries of proposals for making thecontent of the law more accessible andcomprehensible to the public at large.The focus of these proposals should bethe needs of the user and they shouldcombine detailed recommendations asto the presentation of statute law withgeneral recommendations about theformulation and future role of •

•

» legislation in our legal system.

Examples of such proposals wouldbe as follows:

Presentation

All legislation, including statutoryinstruments, on a particular subjectshould be contained in its latest formand comprehensively in one place.The user should be able to find allthe statute law on that subjectquickly and conveniently, without

having to refer to amending Acts, orsections of other Acts whichprimarily relate to differentsubject-matter.

To this end:

1. The arrangement of statutesshould, as with Statutes in Force,be on the basis of subject; and"miscellaneous provisions"legislation should be avoided.

2. All statutory instruments enacted

under a statute should be appended to arepublication of the statute.

3. New provisions relating to a subjectcovered by an existing Act should beincorporated by textual amendment intothe existing Act rather than forming aseparate statute.

4. Publication of new and amendinglegislation should be in a form whichallows quick and easy updating(possibly on the basis of a loose-leafsystem with the issue of individualreplacement pages).

CLARITY

offers legal ftrms and departments a half-day, in-house

SEMINAR

ON PLAIN ENGLISH WRITING.

• The seminar is given by Mark Adler.

• It runs for 31/2 hours, including a 20-minute break.

• We recommend that each one has between 10 and 20 delegates,but those numbers are flexible.

• The purpose is to make delegates aware of their writing styleand to suggest improvements.

• The standard guidelines for plain writing will be summarised.

• Delegates will be asked to redraft your traditionally written lettersand formal documents, and there will be group discussion.

You will be asked to provide:

light refreshmentswriting equipment

anda flip-chart or whiteboard.

Fee: £500 + expenses + VAT

An additional charge will be negotiated if the estimated travelling timeexceeds 90 minutes in each direction.

The seminar carries 4 Continuing Education points.

Contact Mark Adler at the address on the back page.

16

5. It is extremely important thatpublication should always be before thedate on which the legislation takeseffect.

6. The date on which the legislation takesetlect should be readily apparent on theface of the legislation, subject only tounavoidable exceptions.

7. The titles of new legislation should bein accordance with a clear subject indexalready established for existinglegislation.

8. Unavoidable detail should not appear insections of the Act, but should be put inschedules, save for details of achanging or technical character, forwhich statutory instruments areappropriate.

Formulation

Legislation inevitable onglDates ingovernment departments yet it is at thisearly stage, when improvements couldmost satisfactorily be made, that ourpresent legislative process lacks anymachinery capable of carrying out thenecessary consultation with outsideinterests. This function may well merit abody whose responsibility is to scrutinisethe form, arrangement and language ofproposed legislation to ensure that it isclear and comprehensive before it goesbefore parliament and that it remains so.No person or body is now effectivelyresponsible for scrutinising legislation as awhole before it is introduced, theLegislation Committee of the Cabinethaving largely abdicated this function. Inparticular:

1. Legislation must be expressed in »

Codes should be kept undercontinuous review, the initialcode being the first rather thanthe last stage in the process; andthe advantages and disadvantagesof codifying a particular area oflaw and of codification generallyshould be kept under review.

•

Since then the situation hasdeteriorated: legislation has becomemore voluminous, more detailed andmore difficult to find and understand.The next Parliament should reverse thistrend as a matter of urgency.

1. There is allowance for adequatestudy, research, consultation andplanning, which should include theopportunity for the lay voice to beheard in the process of law-making,and which should result in acommentary to accompany any codeto aid interpretation.

Conclusion

Of the 81 recommendations made bythe Renton committee in 1975 forimproving statute law, only 39 havebeen fully or mainly implemented.Several of the most important have notbeen carried out.

4. The users' requirements should beremembered.

2 Codification must be comprehensiveand sufficiently detailed so that it isthe only source of the law in thatfield.

whenever possible avoid trying tocover every situation imaginable,with the consequent need forfrequent amendment.

Consolidation

Arguments against codification arepowerful. They stress the undoubtedadvantages of authoritative judge­made law, namely its flexibility,certainty and capacity to develop inresponse to the pressure of changingsocial conditions conveyed throughthe channel of litigation. However,the development of case law islimited by the unstructured pattern ofcases coming for decision.Codification should retain theflexibility of case law whilst allowingfor reform and clarification. Itsgradual development should beencouraged, provided that:

Any body established to carry out thesefunctions could also be responsible forincreasing consolidation and codi­fication.

Codification is a logical extension torevision and consolidation. Existinglaw, both statute and judge-made, isredl!ced into comprehensive and com­prehensible statutory form. The userneed look at only one source for all thelaw in a particular area.

Codification

Consolidation of the statutes covering aparticular area of the law provides ananswer to many of the problems of 3.access to legislation outlined above.

4. The substantial content of legislationshould be contained within thestatute itself rather than added laterin the form of statutory instruments.

3. The structure of statutes shouldfollow a logical, sequential patternthat allows for most convenientreference by the user; statutes shouldbe annotated; and there should be awider use of definitions.

• clear and simple language,avoiding the confusing legalistic

style of drafting which predominatesin most existing statutes. TheMaintenance Enforcement Bill is anoutrageous but typical example bothof extraOrdinarily complicated provi­sions, mostly incomprehensible tothe persons affected by them, and ofnumerous early statutes beingamended. Unintelligible legislationis the negation of the rule of law andof parliamentary democracy.

7. Legislation should state its purposeand lay down general principles (inthe European tradition). It should

6. The structure and language ofstatutes should be kept underconstant review.

5. An Act should cover only onesubject, a practice introduced byBritain in many Commonwealthcountries.

2 Legislation should expressly statewhether it is to be retrospective, or ifit is intended to reverse the effect ofsome rule of law.

REFERRALS REGISTER

The full list is published from time to time but copies are available from Mark Adler on request.Please send stamped or OX addressed envelope.

The list is open to any member willing to accept client referrals from other members.All are solicitors unless indicated.

Please write in if you would like to be included.

New entries only are listed at the foot of the next page.

17

CROSSWORDNo.2

by

John Walton

A small prize, donated by the compiler,will be awarded to the first correct entry

opened.Please send entries to

I Ashworth Close, Crick, Northants NN6 7DXto arrive by 31st January.

CLUES ACROSS

CLUES DOWN- 1. Baftle school by including test of 13 (6)

4. Lawyers wager on dog - or bird (6)

9. Once more let free (7)

10. Euclid losing head goes wild - yet still imbued with

CLARITY (5)

11. One embraced by former king - he's beyond recovery(5)

12 Wordy yet misspelt Old English verbs (7)

13. Ready to include sailor I fired in CLARITY? (11)

18. Legislator brings rubbish back with stick (7)

20. Exe became recipient of old Algerian vessel (5)

22. Gluts upset 19 (5)

23. Put in with "herewith" it's tautology! (7)

24. Custodian returns to redraft ... (6)

25.... letters to sue dun when redundant (6)

.I. For Latin I do without... (6)2 ... the Spanish, the French 'n' Miss Terry (5)3. Scorched salmon brown? No, wrong fish, wrong

colour! (7)5. Mark (of CLARITY) amends second letter - and is

even more proficient! (5)6. Renege, so no longer in? (4,3)7. It dies to be put in order! (6)8. Weighty proof to be discharged? (5,6)14. When payment compelled so roughly'cede tax (7)15. Roman law I study in wordy book (7)16. Recess disrupted by legal stoppage (6)17. Effusive exposition of confused creeds (6)19. It's worth coming up for this girl (5)11. Chemists' footwear? (5)

I

NEW ENTRIES IN THE REFERRALS REGISTER

(For other details see the foot of the previous page)

~ Area Telephone Field

DavidAdam Enfield, Middlesex 0813673999 Notary public] .M. Eardley Eastleigh, Hants 0703629962 Marine law (yachting)Kaltons London NI 0714908696 Commercial law and property

Stephen Knatler LondonSEl 0713788005 Landlord & tenantLaw Foundation Centre for

Plain Legal Language Sydney, Australia 022325944 Plain English draftingChristine Reid Oxford 0865242468 Computer law, charities

18

The death of one whose ideas have stimulated somany, and who has so influenced legal writing, givesus occasion to pause and say thank you.

It was in the fall of 1939 that Professor Dickersonthen a newcomer to law teaching, joined the facult;of the Washington University School of Law in StLouis. But he did not stay long. The war saw himmove to Washington DC, where he remained until1958. It was during his government service thatProfessor Dickerson became fascinated by legislativedrafting and the process by which legislation iscreated.

After joining the Indiana University School of Law in1959 he concentrated on his special areas of interest ­legislation, legal drafting, and products liability.Through his teaching, his writing, and his proposalsfor reform he became a major and formidableadvocate for change in legal expression. He spent 22years as an Indiana delegate to the NationalConference of Commissioners on Uniform StateLaws, making a major contribution to the substanceand drafting of uniform state laws. It was also at USLconferences that his outstanding abilities as a jazztrumpet player first became known to the legalprofession.

Professor Dickerson had a long-lasting relationshipwih the UK Parliamentary Counsel Office, and wascalled to give evidence before the Renton Committeeon the Preparation of Legislation. He much admiredthe British system of control over the form and styleof legislation, and sought the help of Sir Noel Hutton,former First Parliamentary Counsel, to tell anAmerican audience something of the Britishexperience. Dickerson sought to professionalizelegislative drafting in the United States.

The US judiciary takes a close look at legislativehistory as an aid to interpretation. It was ReedDickerson who pointed out that sometimes that lookexcluded the text of the legislation itself. Hestraightened out interpretive wrinkles by publicisingthis remarkable judicial statement:

the legislative history ... is ambiguous ....Because of this ambiguity it is clear that wemust look primarily to the statutesthemselves to find the legislative intent.

Professor Dickerson retired in 1980. Many of hisfriends said they could not believe he would retire.They were right. Just two years ago he was thekeynote speaker at two international conferences,one at Cambridge University and the other, a fewmonths later, in Ottawa. At both conferences hereceived a standing ovation. In 1990, he was back inEngland to speak, to similar acclaim, at the PlainEnglish Campaign's Conference at Maddingley.

It was at the Ottawa conference, on legislativedrafting, that I first met Reed Dickerso~. He wasthen 80 years old. He held his audience for over anhour with a spirited talk about drafting, whiledecimating and then rewriting a piece ofgobbledegook.

F. Reed Dickerson's contribution to the law and tolegislative drafting cannot be overestimated. Hisinfluence will continue; the seeds he has planted willflourish. We thank you for the ideas, the challenge,and the spirit. To Reed Dickerson, lawyer, teacher,writer, trumpeter, we bid a fond farewell.

Reed Dickerson died on June 9, 1991 atBloornington Hospital, Indiana.

BACK NUMBERS

of Clarity are available at the prices opposite:

Please add 20% for handling and postage (inland)or send international postal coupons (overseas)

19

Issues 1-45-1112-151617-2021

£1£1.50£2£3£2£3

each

each

WELCOME TO NEW MEMBERS

David Adam, solicitor, Vanderpump & Sykes, Enfield, MiddlesexAdviser on legislation (unnamed), Securities and Futures Commission, Hong Kong

Carol Bames, Linley Point, near Sydney, New South Wales, AustraliaDavid Beales, solicitor, London EC2

Mrs G.L. Brown, solicitor, and lecturer at Hammersmith & West London CollegeC.R. Davey, solicitor, Nabarro Nathanson, London W1

J.M. Eardley, solicitor, Eastleigh, HampshireC.V. Evans, solicitor, Mayfair, London W1

Alison Fielden, solicitor, Cirencester, GloucestershireHelene Hanrahan, solicitor, Blackheath, London SE 3

Shelley Johnson, Plain Language Institute, Vancouver, British ColumbiaDeborah Jolliff, solicitor, Andrew & Co, Lincoln

Kaltons, solicitors, London NIStephen Knafler, solicitor, Anthony Gold Lerman & Muirhead, London SE1

Philip Knight, executive director, Plain Language Institute, VancouverLaw Foundation Centre for Plain Legal Language, University of Sydney, Australia

David Lewis, information designer specialising in effective English, Information Design Unit, Newport Pagnell,Buckinghamshire (and member of the executive committee of the Information Design Association)

William Morrison-Bell, solicitor, London SW6The Plain Language Institute, consultants, Vancouver

John Pullig, solicitor, Beckenham, KentChristine Reid, solicitor, Oxford

Anthony Scrivener QC, chairman of the bar of England & Wales

NEWS ABOUT MEMBERS

Professor Peter Butt, director of the Centre for Plain Legal Language at Sydney University, hopes to be in England for severalmonths early in 1992.

Tony Scrivener QC finishes his year as chairmanof the bar on 31st December.

Mark Adler (chairman)

Or Michael Arnheim

Prof. Patricia Hassett

Alexandra Marks

Justin Nelson

35 Bridge Road, East Molesey, Surrey KT8 9EROX 80056 East Molesey

8 Warwick Court, Grays Inn, London WC1R 5DJOX 1001, Chancery Lane

837 Millbank Tower, Millbank, London SW1P 4QU

59 Gresham Street, London EC2V 7JAOX 10, London

66 Rogersmead, Tenterden, Kent TN30 6l.F

Please contact

Justin Nelson about membership, finance or book reviewsand

Mark Adler about this journal

20

081-979 -0085Fax: 081-941 0152

071-430 2323Fax: 071-4309171

071-2174282Fax: 071217 4283

071606 7080fax: 071 606 5113

05806 5313