Mind your language
The concept of 鈥榩lain鈥 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: 鈥淭he 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.鈥
Arguments in support of plain English may be greeted with scepticism by some lawyers. Their arguments would be that 鈥榩lain English鈥 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鈥檛 be drafted in plain English without losing some of their meaning 鈥 and that the use of legal terminology is necessary because it has established meanings.
Nevertheless, legal documents should be as clear as possible 鈥 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鈥 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鈥檚 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 鈥渢o improve the effectiveness and accountability of federal agencies to the public by promoting clear government communication that the public can understand and use鈥.
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 鈥榬eport cards鈥 on writing quality in government agency documents) noted significant improvements between 2013 and 2021.
One example worth considering is the US Department of Labour鈥檚 annual compliance reports and annual grades for 鈥榦rganisational compliance鈥 and 鈥榳riting quality鈥. 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 鈥 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: 鈥淚f 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.鈥
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 鈥楳aking your message clear鈥. The Canadian Bankers鈥 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鈥檛 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鈥檛 mean oversimplifying.)
Ireland
In November 2022, the Law Society of Ireland organised a 鈥楲egal writing skills masterclass鈥 for lawyers, which is being repeated on 15 March 2023. The Society has also published a Solicitors鈥 Guide to Clear Writing, which suggests that: 鈥淎s 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.鈥
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 鈥榟erein鈥, 鈥榟eretofore鈥 or 鈥榳hereof鈥,
- 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 鈥楶lain English Ireland鈥, 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 鈥渢he days of writing in 鈥榖usiness-speak鈥, 鈥楥ivil Service-ese鈥 and 鈥榩osh鈥 English are gone鈥.
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鈥檚 response to international developments in this field. However, it has not been enacted.
The bill 鈥 entitled 鈥渁n act to ensure that all information for the public from Government and State bodies is written and presented in plain language鈥 鈥 lapsed on the dissolution of the D谩il 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 鈥榢now-how鈥 and gives tips on document design and words to avoid 鈥 such as 鈥榓forementioned鈥, 鈥榙uress鈥, 鈥榟eretofore鈥 鈥 and suggests simpler alternatives, such as 鈥榓lready mentioned鈥, 鈥榩ressure鈥, and 鈥榖efore now鈥.
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, 鈥渋n a complicated area where certainty is vital, simplification can only go so far鈥.
The report emphasises that 鈥渁 statute is never going to read like a song鈥. For instance, 鈥渃ertain 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鈥.
Technical language
Some technical terms cannot be translated into plain language 鈥 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鈥檚 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:
- (Government of Canada, 2017; amended 19 November 2021)
- (New Zealand)
- (111th Congress of the USA, Public Law 111-274, 13 October 2010)
LITERATURE:
- Pierre-C Gagnon et al, (Joint Committee on Plain Language: Canadian Bankers鈥 Association and The Canadian Bar Association, 1990)
- Mary McCauley, 鈥樷 (Association of Freelance Editors, Proofreaders and Indexers of Ireland, 24 February 2020)
- (National Adult Literacy Agency and Mason, Hayes & Curran, 2017)
- (Minister of Supply and Services, Canada 1991)
- 鈥樷 (Public Legal Education, Canada)
- Lisa Rein, 鈥楢dvocates of the Plain Writing Act prod federal agencies to keep it simple鈥 (, 8 April 2012)
- Lisa Rein, 鈥楶lain writing in government: agencies, plainly speaking, aren鈥檛 there yet鈥 (, 19 November 2013)
- (Law Reform Commission, LRC 61 鈥 2000)
- Solicitors鈥 Guide to Clear Writing (Law Society of Ireland)
- Cheryl M Stephens, 鈥樷 (Canadian Bar Association, 4 March 2014)
ORGANISATIONS:
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