USING EXAMPLES IN LEGISLATION

Prepared by

David C. Elliott

Revised, November 1996

Contents

Using examples in legislation

How we understand what we read
The next step
Who would be helped by examples?
Getting ideas across to readers
Ways of using examples

Commentary on the use of examples

Renton Committee
Francis Bennion
Professor RWM Dias
Report to the English Law Commission
Judicial comment

Examples of Examples

Australia

Interpretation Act
Drafting instructions

India

The Codes of India

United Kingdom

Occupiers Liability Act
Consumer Credit Act 1974
Race Relations Act

Canada

Meat Inspection Act (B.C.)
Wildlife Act (B.C.)
Surveys Act (B.C.)

 

Using examples in legislation(1)

How we understand what we read

Whenever people read a text they bring to it all their accumulated knowledge. That knowledge isused to help understand the text. Research (and a moment of personal reflection) tells us thatone way in which people interpret texts is by thinking through a series of examples to see whatimpact the text has on the example.

If we have limited background knowledge about the subject matter of a text it is that much moredifficult to understand. It is through the internal processing of examples that we develop akeener understanding of what the text means.

Even if legislation is clearly written it is often difficult to understand because it deals withcomplicated subject matter. The use of examples in legislation can help to make the text moreunderstandable.

The next step

If examples are part of the way we internally process a text it is only a short step to includingexamples, in appropriate cases, in legislation.

A text is constantly tested during drafting by applying a series of examples to it. This is ofcritical importance in technical texts, when a minor change in wording can have a dramaticimpact on the effect of the text. It is just a short step to take the examples developed to test adraft and incorporate them as part of the text. Not only will this aid understanding but it willturn dry text into real life situations(2); examples help understanding by creating ideas that the textis intended to affect; and examples work with and stimulate readers' typical internal processingof what a text means.

Who would be helped by examples?

Examples would help

• administrators: Concrete examples would help administrators deal with the dayto day administration of legislation;

• the general public: Examples would help the general public understand theirrights and obligations and how the legislation works;

• legislators: Legislators would be helped by understanding how the law will applyin practice. The legislator is then better able to make a decision about thelegislation, and to explain it to others;

• the legal profession: The legal profession would be helped by a speedier andmore complete understanding of the intention of the legislature and how thelegislation applies to a matter on which legal advice is sought;

• the judiciary: Judges would also have a clearer and more complete understanding of legislative intention which, by analogy, they can apply to issuesthey must decide.

Examples can help the normal thought process of visualizing how legislation applies toparticular situations. The reader is better able to create his or her own examples thanks to theinitial stimulus created by the examples. This is much like how a child learns - by context and example.

The bottom line is that examples can help readers understand a text more quickly andcompletely. This is the prime reason that examples are used in virtually every kind of technicalbook - to help readers understand "difficult to grasp" concepts.

Getting ideas across to readers

Examples illustrate ideas. The texts we write have ideas behind them - our ideas about how thetext will or should be interpreted. If those ideas are not, or are inadequately, conveyed to thereaders of the text there is a lack of communication. One way of making sure we get our ideasacross is to help readers with examples. Examples then can be seen as some of the thoughts thatthe writer has for interpreting the text.

Unless we have in mind how legislation is likely to be interpreted we fail in part of the legislativedrafting process. As we write, either instinctively or otherwise, we ask ourselves - how willothers interpret what we have written.

Ways of using examples

The use of examples, or ideas, embedded in a text can take many forms.

• a simple illustration like this

  (x)"writing" includes printing, typewriting, or any other intentional reduction of language into legible form, or to a form which can be converted into legible form by a machine ora device, such as language

  (i)  on microfilm,

  (ii)  in electronic, mechanical or magnetic storage, or

  (iii)  in electronic data transmission signals;

  (Extract from a Model Land Recording and Registration Act prepared by a Joint Land Titles Comittee representing all Provinces and Territories,except Quebec, July, 1990.)

This simple kind of illustration is similar to the typical formulation of regulation makingsections in Acts which start with a general statement followed by a list (of examples) ofspecific regulation making powers.

• an illustration of how a complicated section works

This technique has been used to good effect. An outstanding example is the ConsumerCredit Act 1974 (UK).

• an explanation of what a particular section means

Perhaps the Codes of India are the most outstanding example of this technique.

To resolve questions about the status of examples in legislation, the Federal AustralianInterpretation Act says how examples are to be treated if they are used in legislation.

Commentary on the use of examples

Examples have been welcomed by a wide variety of readers, including academics and thejudiciary.

Renton Committee

The Committee Report on The Preparation of Legislation(3) chaired by Sir David Renton said:

10.6 The demand for elaboration comes not only from the government and theinstructing department but also from Parliament itself. First Parliamentary Counsel putthe position to us in these words -

          For good reason, Parliament is rarely ready to accept a simplification if itmeans potential injustice in any class of case, however small. In particular, thisis true of everything in a Bill which intervenes in private life, or in business. Powers of entry, and powers of obtaining information, will be looked at jealously. And much detail will often be needed before the Government is likely to be able topersuade Parliament that in this field no more than essential powers are beingtaken by the proposed legislation . . . In many of the fields in which legislation isfrequent, broad propositions may be, or may appear to be, oppressive. Parliament may insist that the rights of the citizen should be spelt out preciselyand may well refuse to accept the argument that the way the legislation is to beworked out can be left to the courts.

On the other hand we have not failed to notice that individual Parliamentarians are oftenvehement in their condemnation of detail and elaboration. As we said in paragraph 1.10,they cannot have it both ways.

10.7 The draftsman is at present often constrained by this approach to include a gooddeal of detail, in order to provide expressly for different combinations of circumstances,and so to express himself as to eliminate or reduce to the minimum the need forclarification by the courts and the risk of judicial interpretation in a sense contrary to thatintended. Of course, judges endeavour in the interpretation of Acts of Parliament to giveeffect to the intentions of the legislature as expressed in the Act, but in modern timeswhen the State intervenes to regulate the life of the individual with very great minutenessthose intentions will not necessarily be clear unless spelt out in very great detail. At anyrate that feeling is undoubtedly held in some quarters, and has influenced the style ofmuch contemporary legislation. In a recent case Lord Simon of Glaisdale, supported byLord Kilbrandon, repeated a suggestion he had made in evidence to us that -

Where the promoter of a Bill, or a Minister supporting it, is asked whether thestatute has a specified operation in particular circumstances, and expresses anopinion, it might well be made a constitutional convention that such a contingencyshould ordinarily be the subject matter of specific statutory enactment - unless, indeed, it were too obvious to need expression.

If, as we recommend (paragraph 19.26), there is to be no change in the rule about the non-admissibility of Parliamentary proceedings for interpretation, such a convention mightseem to be helpful to the courts; but it would at the same time tend to add a furtherelement of undesirable elaboration to the statutes. This effect could perhaps be mitigated,and the number of occasions on which the convention would operate to be kept to theminimum, if more use were made of examples showing how a Bill was intended to work in particular situations, and if such examples were ordinarily set out in Schedules as werecommend, for matters of detail generally, in paragraph 10.13.

Francis Bennion

Francis Bennion, the Parliamentary Counsel who drafted the Consumer Credit Act 1974 says:(4)

Where an Act includes examples of its operation, these are to be treated as detailedindications of how Parliament intended the enactment to operate in practice. If howeveran example contradicts the clear meaning of the enactment the latter is accordedpreference, it being assumed in the absence of indication to the contrary that the framer ofthe example was in error.

COMMENTARY

If parliament thinks fit to include in an Act examples of how the Act is intended tooperate, these are clearly of strong persuasive authority. They show how Parliament itselfcontemplated the Act would work.

Bennion concludes his comments on the use of examples in the Consumer Credit Act 1974 with this:

On this Schedule, the Australian Attorney-General, Mr. Peter Durack, Q.C., commented:'The advantages of using such techniques in appropriate cases have perhaps been ignoredor undervalued, or both'. {Symposium on Statutory Interpretation (Canberra 1983) para5.10.}

For an instance of examples in regulations see the University Elections (SingleTransferable Vote) Regulations 1918 (S R & O 1918 No 1348) Sch 1.

Repugnant example: Where an example contradicts the clear meaning of an enactmentthe latter is accorded preference, it being assumed that the framer of the example was inerror. This does not mean that the 'clear' meaning will always be followed however. There are cases when the court will apply a strained construction, and an example maysupport the reasons for doing so. A repugnant example cannot in itself justify departurefrom the literal meaning of an operative provision however. {Mahomed Syedal Ariffin v.Yeoh Ooi Gark [1916] 2 AC 575, at p 581. See also Consumer Credit Act 1974 s 188(3)(cited above), which is thought to express the general rule.}

Professor RWM Dias

Professor Dias, writing about statutory interpretation in Jurisprudence (4 ed. 1985) said:

. . . legislators might perhaps give more thought than they do to the remedy in relation tothe mischief. In particular, it would be helpful if they provide examples of the sort ofthing that is designed to be covered.(5) Arguing by analogy from such examples shouldhave a powerful appeal to judges, who are well versed in this technique of reasoning.

Report to the English Law Commission

In 1985 a report was made to the English Law Commission on the Codification of the CriminalLaw.(6) The draft Code included a series of illustrations. Commenting on these illustrations thereport said:

3.6 The context of the Act: illustrations. Legislation must be stated in general terms. However well this is done, in a matter of complexity - and the Code has to deal withsome very complex matters - the purpose and effect of the resulting abstract propositionsmay, at first sight, be obscure even to the experienced reader of statutes. Every teacherknows that the quickest and most effective way of illuminating any abstract proposition isby an example. We have therefore provided in Schedule 1 a series of illustrations of thefunctioning of the clauses of the Code wherever we think it will be helpful to the reader. We believe that the illustrations would be of value to members of Parliament in enablingthem to appreciate the effects of the law to members of the profession in applying thelaw, to students in learning it, and to everyone concerned in understanding it.

Here are a few of the illustrations used in the Report:

The report on the Codification of the Criminal Law says that it was the Consumer Credit Act 1974 which acted as a 'persuasive precedent' for the authors of the report.

Judicial comment

Judges have welcomed the use of examples in legislation. In addition to Lord Shaw's remarks inthe Mahomed Syedol Ariffin case others have also welcomed the use of illustrations.

Lord Denning MR said:

". . . one of the best ways, I find, of understanding a statute is to take somespecific instances which, by common consent, are intended to be covered by it. This is especially the case with a Finance Act. I cannot understand it by simplyreading it through. But when an instance is given, it becomes plain. I can say atonce: 'Yes, that is the sort of thing Parliament intended to cover'."

{Escoign Properties Ltd. v. IRC [1958] AC 549, at pp 565-6. See also LondonTransport Executive v. Betts [1959] AC 213, at p 240.}

Commenting on the use of examples in section 29(2) of the Sex Discrimination Act, Lord Fraserof Tullybelton said:(7) (8)

Section 29 provides:

'(1) It is unlawful for any person concerned with the provision (for payment ornot) of goods, facilities or services to the public or a section of the public todiscriminate against a woman who seeks to obtain or use those goods, facilities orservices - (a) by refusing or deliberately omitting to provide her with any of them,or (b) by refusing or deliberately omitting to provide her with goods, facilities orservices of the like quality, in the like manner and on the like terms as are normalin the case in relation to male members of the public or (where she belongs to asection of the public) to male members of that section.

(2) The following are examples of the facilities and services mentioned insubsection (1) - (a) access to any use of any place which members of the public ora section of the public are permitted to enter; (b) accommodation in a hotel,boarding house or other similar establishment; (c) facilities by way of banking orinsurance or for grants, loans, credit or finance; (d) facilities for education; (e)facilities for entertainment, recreation or refreshment; (f) facilities for transport ortravel; (g) the services of any profession or trade, or any local or other public authority . . .'

It was said that the granting of special vouchers for entry into the United Kingdom wasthe provision of facilities or services to a section of the public, and that the wide generalwords of sub-s(1) of s 29 were not cut down by the examples given in sub-s(2), whichare only 'examples' and are not an exhaustive list of the circumstances in which thesection applies. Reliance was also placed on para (g) of s 29(2), which expressly refersto the services of a public authority and which has been held to apply to the InlandRevenue: see Savjani v. IRC [1981] 1 All ER 1121, [1981] QB 458.

My Lords, I accept that the examples in s 29(2) are not exhaustive, but they are, in myopinion, useful pointers to aid in the construction of sub-s(1). Section 29 as a wholeseems to me to apply to the direct provision of facilities or services, and not to the meregrant of permission to use facilities. That is in accordance with the words of sub-s(1),and it is reinforced by some of the examples in sub-s(2). The example in para (a) is'access to and use of any place' and the words that I have emphasized indicated that theparagraph contemplates actual provision of facilities which the person will use. Theexample in para (d) refers, in my view, to the actual provision of schools and otherfacilities for education, but not to the mere grant of an entry certificate or a specialvoucher to enable a student to enter the United Kingdom in order to study here. Theexample in para (g) seems to me to be contemplating things such as medical services, orlibrary facilities, which can be directly provided by local or other public authorities.

Examples of Examples(9)

Australia

(a) Interpretation Act

The Commonwealth of Australia is sufficiently convinced of the usefulness of examples to dealwith two issues that arise when examples are used in legislation.

Section 15AD of the Interpretation Act (Australia) says:

"15AD. Where an Act includes an example of the operation of a provision:

(a)  the example shall not be taken to be exhaustive; and

(b)  if the example is inconsistent with the provision, the provision prevails."

(b) Drafting instructions

The former Australian First Parliamentary Counsel, Ian Turnbull, issued a drafting instruction forhis office which included these comments:(10)

1. . . . After careful consideration I have decided that the use of examples should beone of the "tools" available to drafters to make Bills easier to understand.
   
   
2. I do not propose any rules on the cases in which examples should be used or notused - the matter should be at the discretion of the drafters involved in drafting andsettling the Bill concerned.
   
   
3. Every care should be taken to ensure that an example has the same effect as thetext it illustrates. Also, when amending a provision illustrated by an example, it will benecessary to check the example to see whether consequential alterations are required. Ifthere is no time to alter a complicated example it would be open to the drafter to repealthe example.
   
   
4. . . .
   
   
5. Examples should not be treated as a substitute for clear text. Drafters should stilltry to carry out our general policy of making provisions as simple and clear as possible,while maintaining our standards of precision.

India

The Codes of India

The use of examples was a key element in the development of Codes for India in the late nineteenth century.

Free from traditional constraints, the authors of the Indian Codes wanted to make the law asintelligible as possible.(11) The authors knew that the laws would often be administered by peoplewith no formal legal training and no access to a library; this knowledge stimulated the authors tohelp readers understand the text.

In the Indian Evidence Act 1872, drafted by Sir James Stephen, many sections are explained bydescribing situations which show how the section works. For example:

5. Evidence may be given in any suit or proceeding of the existence or non-existenceof every fact in issue and of such other facts as are hereinafter declared to be relevant,and of others.

Explanation - This section shall not enable any person to give evidence of a factwhich he is disentitled to prove by any provision of the law for the time being in forcerelating to Civil Procedure.

Illustrations

(a) A is tried for the murder of B by beating him with a club with the intention ofcausing his death.

At A's trial the following facts are in issue:-

A's beating B with a club;
A's causing B's death by such beating;
A's intention to cause B's death.

A suitor does not bring with him, and have in readiness for production at the firsthearing of the case, a bond on which he relies. This section does enable him to producethe bond or prove its contents at a subsequent stage of the proceedings, otherwise than inaccordance with the conditions prescribed by the Code of Civil Procedure.

In the introduction to his Digest of the Law of Evidence, Sir James Stephen wrote that

I have in nearly every instance, taken cases actually decided by the Courts for thepurpose . . .[T]hey not only bring into clear light the meaning of abstract generalities,but are, in many cases, themselves the authorities from which rules and principles mustbe deduced.

The actual status of the illustrations in the statutory text was considered by the Privy Council inMahomed Syedol Ariffin v. Yeoh Ooi Gark [1916] 2AC 575. Lord Shaw stated at 581:

. . .it is the duty of a Court of law to accept, if that can be done, the illustrations given asbeing both of relevance and value in the construction of the text . . . [I]t would require avery special case to warrant their rejection on the ground of their assumed repugnancy tothe sections themselves. It would be the very last resort of construction to make anysuch assumption. The great usefulness of the illustrations, which have, although not partof the sections, been expressly furnished by the Legislature as helpful in the working andapplication of the statute should not thus be impaired.

Stephen tried to introduce similar legislation in the United Kingdom Parliament, but despiteattracting interest, neither the Evidence Bill 1873 nor the draft Code of Criminal Law 1878 weresuccessful. Of the Evidence Bill, Stephen wrote that it "contained a certain number ofillustrations and Lord Coleridge's personal opinion was in their favour" [Lord Coleridge asAttorney-General sponsored the Bill].

However there was concern about whether Parliament would be happy with them. Interestingly,in a Report to the English Law Commission on a proposed Criminal code the authors includedwith a draft Bill a series of explanations of how the Code would apply to particular factsituations.(12)

United Kingdom

(a) Occupiers Liability Act

The Occupiers Liability Act 1957 used examples.

Section 2 reads in part:

(2) The common duty of care is a duty to take such care as in all the circumstances ofthe case is reasonable to see that the visitor will be reasonably safe in using the premisesfor the purposes for which he is invited or permitted by the occupier to be there.

(3) The circumstances relevant for the present purpose include the degree of care, andof want of care, which would ordinarily be looked for in such a visitor, so that (forexample) in proper cases -

(a) an occupier must be prepared for children to be less careful than adults;and

(b) an occupier may expect that a person, in the exercise of his calling, willappreciate and guard against any special risks ordinarily incident to it, sofar as the occupier leaves him free to do so.

(4) In determining whether the occupier of premises has discharged the common duty ofcare to a visitor, regard is to be had to all the circumstances, so that (for example) -

(a) where damage is caused to a visitor by a danger of which he had beenwarned by the occupier, the warning is not to be treated without more asabsolving the occupier from liability, unless in all the circumstances it wasenough to enable the visitor to be reasonably safe; and

(b) where damage is caused to a visitor by a danger due to the faulty executionof any work of construction, maintenance or repair by an independentcontractor employed by the occupier, the occupier is not to be treatedwithout more as answerable for the danger if in all the circumstances hehad acted reasonably in entrusting the work to an independent contractorand had taken such steps (if any) as he reasonably ought in order to satisfyhimself that the contractor was competent and that the work had beenproperly done.

(b) Consumer Credit Act 1974

The Consumer Credit Act 1974 made extensive use of examples.

Section 188 reads:

188  Examples of use of new terminology

(1) Schedule 2 shall have effect for illustrating the use of terminology employed in thisAct.

(2) The examples given in Schedule 2 are not exhaustive.

(3) In the case of conflict between Schedule 2 and any other provision of this Act, thatother provision shall prevail.

(4) The Secretary of State may by order amend Schedule 2 by adding further examplesor in any other way.

Here is how the examples were laid out in Schedule 2 of the Act:

SCHEDULE 2

Section 188(1)

Examples of Use of New Terminology

PART I
LIST OF TERMS

PART II
EXAMPLES

Example 1

Facts. Correspondence passes between an employee of a moneylending company (writing onbehalf of the company) and an individual about the terms on which the company would granthim a loan under a regulated agreement.

Analysis. The correspondence constitutes antecedent negotiations falling within section56(1)(a), the moneylending company being both creditor and negotiator.

Example 2

Facts. Representations are made about goods in a poster displayed by a shopkeeper near thegoods, the goods being selected by a customer who has read the poster and then sold by theshopkeeper to a finance company introduced by him (with whom he has a business relationship). The goods are disposed of by the finance company to the customer under a regulated hire-purchase agreement.

Analysis. The representations in the poster constitute antecedent negotiations falling withinsection 56(1)(b), the shopkeeper being the credit-broker and negotiator and the finance companybeing the creditor. The poster is an advertisement and the shopkeeper is the advertiser.

Example 3

Facts. Discussions take place between a shopkeeper and a customer about goods the customerwishes to buy using a credit-card issued by the D Bank under a regulated agreement.

Analysis. The discussions constitute antecedent negotiations falling within section 56(1)(c), theshopkeeper being the supplier and negotiator and the D Bank the Creditor. The credit-card is acredit-token as defined in section 14(1), and the regulated agreement under which it was issuedis a credit-token agreement as defined in section 14(2).

(c) Race Relations Act

The Race Relations Act 1976 also contains examples. Section 20 says:

Discrimination in provision of goods, facilities or services

20.-(1) It is unlawful for any person concerned with the provision (for payment ornot) of goods, facilities or services to the public or a section of the public todiscriminate against a person who seeks to obtain or use those goods, facilities or services -

(a)by refusing or deliberately omitting to provide him with any of them; or

(b)by refusing or deliberately omitting to provide him with goods, facilitiesor services of the like quality, in the like manner and on the like terms asare normal in the first-mentioned person's case in relation to othermembers of the public or (where the person so seeking belongs to asection of the public) to other members of that section.

(2) The following are examples of the facilities and services mentioned insubsection (1) -

(a) access to and use of any place which members of the public are permittedto enter;

(b) accommodation in a hotel, boarding house or other similar establishment;

(c) facilities by way of banking or insurance or for grants, loans, credit orfinance;

(d) facilities for education;

(e) facilities for entertainment, recreation or refreshment;

(f) facilities for transport or travel;

(g) the services of any profession or trade, or any local or other publicauthority.Section 29(2) of the Sex Discrimination Act also contains examples.

 

Canada

Examples have been used in definition and in text:

(a) Meat Inspection Act (B.C.)

1. In this Act

"portion" means one of the usual cuts derived from a carcass, such as sides,quarters, shoulders, hams and bellies and also entire organs, for exampletongues, livers and hearts;

(b) Wildlife Act (B.C.)

1(1) In this Act

"angler day" is a unit representing one person angling during any part of a dayand is used to determine the extent to which a stream, lake or area specifiedunder section 53.1 may be used for angling: for example "a limit of 1 000 anglerdays" means the total obtained by adding together the number of anglers usingthe stream, lake or area on each day of a specified period must not exceed 1 000;

(c) Surveys Act (B.C) (See last line of text on next page)

Laying out subdivisions, when land surveyed in sections one mile square

6. If a land surveyor is employed to lay out a given half section or quartersection, where the land has been surveyed into sections of one mile square, with quartersection posts placed on the section lines every 40 chains, he shall effect the same byconnecting the opposite original quarter section corners (if they are existing, or if theyare not existing, by connecting the several points in place of them found in accordancewith section (5) by straight lines. In laying out other and minor legal subdivisions inany quarter section, he shall give the legal subdivision its proportionate share of thefrontage and intermediate breadth of the quarter section, and connect the points foundby a straight line, and the lines or limits drawn as above on the ground shall in therespective cases be the true lines or limits of the half section or quarter section, or otherlegal subdivision, whether or not it corresponds with the area expressed in the originalgrant or patent of the land; for example:

1. An earlier version of this paper was published in Clarity.
   
   
2. Think of how a series of examples would transform a limitation of actions act into something much moreunderstandable, and meaningful, for most readers.
   
   
3. Comand 6053 (1975).
   
   
4. FAR Bennion Statutory Interpretation 1984 Butterworths, 583-585.
   
   
5. Lord Denning in Escoign Properties Ltd. v. IRC [1958] AC 549 at 565-566, [1958] 1 All ER 406 at 414. See also London Transport Executive v. Betts [1959] AC 213 at 240, [1958] 2 All ER 636 at 651. Examples are incorporated into sections of the Torts (Interference with Goods) Act 1977.
   
   
6. Law Com. No 143.
   
   
7. Lord Fraser of Tullybelton, speaking for the majority of the House of Lords in Amin v. Entry Clearance Officer, Bombay {[1983] 2 All ER 864, at p 872.}
   
   
8. Francis Bennion comments that "These examples were also relied on by Ackner LJ in Kassam v. Immigration Appeal Tribunal [1980] 2 All ER 330 at p 335.
   
   
9. In all the extracts in this Appendix the emphasis added is mine.
   
   
10. Drafting Instruction No. 7 of 1988.
    
    
11. I am grateful to Mark Duckworth of the Victoria Law Reform Commission, Australia for bringing this tomy attention. Sir Courtenay Ilbert, a UK Parliamentary Counsel, was one of the authors of the Codes.
    
    
12. See the extract earlier in this paper.