USING PLAIN ENGLISH IN STATUTES

 

 

Clarity's submission to the
Hansard Society for
Parliamentary Government

 

Prepared on behalf of Clarity
by
David C. Elliott

June, 1992


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Contents

Using plain English in statutes
A fundamental reappraisal of drafting approach?

A fundamental change?
Purposive approach to drafting and interpreting legislation
U.K. membership in the European Community
Clarity's suggestion

PART 1
ATTITUDE AND EDUCATION - AND HOW TO GET THEM

The drafter's attitude
How to get or encourage the right attitude
Education
Other thoughts on stimulating ideas about writing legislation
Quality control
     (a) a style guide
     (b) editors
     (c) readability tests
     (d) peer review

 

PART 2
SOLVING INFORMATION ANXIETY

Information anxiety
Social and economic reasons for improving the language of the law
Communicating to an audience

(1) Stating a purpose

What are purpose sections?
Why purpose sections are becoming more popular
The problem with purpose sections
Aiding interpretation

(2) Document organization

How will the document be used?
Organizing for readers
A specific example

(3) The scenario principle

(i) Using questions
(ii) Using diagrams
(iii) Using examples
(iv) Using formulae
(v) Other techniques

(4) Drafting in the present tense

Advice from experts
Legislative drafting practice

 

PART 3
STRUCTURE AND FORMAT OF LEGISLATION

Development of the structure and format
Is there something better?
Typography
Some observations on the 1991 statutes
     (a) Long title
     (b) Sentence length
     (c) Cross-references
     (d) Formulae
     (e) Archaic words
     (f) Unnecessary words
     (g) Using examples
     (h) Tone
     (i) Definitions
     (j) To summarize
Computers and the drafter
Helping to design a precedent bank of questions and clauses
     (i) drafting the law
     (ii) knowledge of the facts
     (iii) integrating the law and the facts
     (iv) the program
Drafting precedents

 

PART 4
OTHER REMARKS

General
Accessible statute law
Vetting of drafting style
Other odds and ends
Last Words

 

APPENDIX
The argument in favour of using examples in legislation.

 


Using plain English in statutes

A fundamental reappraisal of drafting approach?

 

A fundamental change?

At the outset of this submission we raise the question of whether there should be a fundamental change in the way in which legislation is drafted in the United Kingdom.

In 1974 Lord Denning spoke of European Community law as an incoming tide flowing into our rivers and estuaries. It might now be regarded as a tsunami. But Community law is here to stay. It will have an increasingly pervasive effect on U.K. domestic law. We raise this question: instead of continuing to write law in a typical Anglo-saxon style should we not give careful thought to revolutionizing our style of writing to mould it along the best of continental lines? Can we afford not to do so?

Lord Diplock has pointed out that English judges, up to the last 20 years or so, may have been largely to blame for

the traditional and widely criticised style of legislative drafting ... familiar to English judges during the present century and for which their own narrow semantic approach to statutory interpretation ... may have been largely to blame.

Fothergill v Monarch Airlines (1981) AC at 280.

Purposive approach to drafting and interpreting legislation

Although the shift in statutory interpretation to a purposive approach is clear, there seems to be a reluctance by Parliament, or is it Parliamentary Counsel, to enact or write law which facilitates that method of interpretation. The purposive approach to statutory interpretation is inhibited without legislation drafted in a way that takes account of and encourages that approach.

There is a considerable weight of authority in support of a purposive approach to drafting legislation. The Renton Committee encouraged the use of purpose sections in statutes, and Sir William Dale has been a leading proponent of that approach. Yet while the U.K. has moved towards increasingly closer ties with Europe it has seemingly not given considered attention to the interaction of domestic and Community law at the drafting level. That responsibility has remained with the Parliamentary Counsel Office; and that Office has traditionally opposed the continental drafting style.

There are good arguments for and against the continental style of drafting.(1) But the factor becoming more and more important, and the one that may in the end overwhelm the discussion, is that the U.K. is a member of the European Community governed by languages and drafted in a style that is not solely English. In the face of that reality we may be forced to rethink our legislative drafting style. In short it means Parliament must trust its judges. It means also that the link between drafting and interpretation - and interpretation and drafting - must be given greater recognition. In a sense it means a new form of partnership between Parliament and the judiciary.

U.K. membership in the European Community

The U.K. cannot ignore the fact that Community law, drafted in a dramatically different fashion and with quite different rules of interpretation, will play an increasing role in our lives. We face a great danger that our domestic law, and the way we write it, may have less and less of an impact if we do not change. U.K. domestic law may well become relegated to the status of local government bylaws - treated as a curious quirk of the Anglo-saxon. The judiciary have sent out some clear messages in the past decade - if drafters do not respond (or if the Government does not direct them to do so) the judiciary may hasten the relegation of U.K. domestic law to antiquity. The fact that the judiciary must apply continental methods of interpretation in cases involving international and community law may well cement judicial thinking.

Clarity's suggestion

Are these over-stated concerns? Perhaps. But we urge the Hansard Society to consider recommending a comprehensive re-examination of U.K. drafting style in light of our membership in the European Community.(2) The U.K. is undoubtedly able to contribute to the expression of the law in the Community - but if we maintain our present drafting style we may never be able to do so fully.

From time to time we return to elements of the theme of continental drafting but the remainder of our comments are focused on present drafting style and practice and what might be done to improve it without making fundamental changes.

 


PART 1

ATTITUDE AND EDUCATION - AND HOW TO GET THEM

The Renton Committee(3) said that little could be done to improve the quality of legislation

unless those concerned in the process are willing to modify some of their most cherished habits

A habit comes from an attitude. The single most important element in using plain English in statutes is the attitude of the drafter.

The drafter's attitude

If drafters have an attitude to drafting that puts the ultimate readers' interests ahead of all others, an immense problem is overcome. The issue then becomes not whether to use plain English, but what steps can be taken to make difficult concepts, or complex sections, easier to understand. Energies are concentrated in that direction rather than endless and wasteful discussions about whether "plain English" should or should not be used.

How to get or encourage the right attitude

Creating and maintaining the right attitude to drafting needs attention at three levels:

A Government wide commitment is needed to use plain English in all forms of legislation.(4) This not only gives an overall policy direction to drafters, but also

 

We see a drafting manual as both a guide and incentive to Parliamentary Counsel, with its prime focus - clear communication. Improvement in drafting is a continuing process and we see some advantage to a permanent committee of both Houses of Parliament having a role in both raising issues about and commenting on drafting style, and in learning from Parliamentary Counsel some of their difficulties. The independence of the Office might then be better tailored to meet the needs of the user.

Education

Most Parliamentary Counsel, both in the United Kingdom and overseas, learn on the job. There are very few drafting courses for Parliamentary Counsel and those that do exist have no particular focus on clear communication. At present, knowledge of drafting techniques and approaches tends to be handed down from one senior Parliamentary Counsel to a more junior one. The training, such as it is, is incestuous. Unless a drafter is particularly innovative, it is difficult for new ideas to emerge and to develop.

Any kind of drafting course which encourages clear communication, and shows techniques to achieve it, is worthwhile for Parliamentary Counsel. But courses should be designed to help Parliamentary Counsel with specific legislative drafting problems. Developing a drafting course is a project that should be a co-operative one, combining the skills of Parliamentary Counsel with communicators and writers. Once focused on a non-threatening project, like developing a drafting course, significant progress would be made in creating useful course material and content for a drafting manual for all law writers.(5)

But much more needs to be done. Parliamentary Counsel should be aware of research that has been conducted about what helps people understand written text and what hinders comprehension. With that knowledge new ideas and techniques can be developed both internally and with the aid of outside experts. Links between the Parliamentary Counsel Office and universities having an interest in the area could provide a valuable exchange of information resulting in an improvement in the quality and drafting of legislation.(6)

Parliamentary Counsel should become more aware of the difficulties people have in understanding legislation. Not just an awareness of general complaints, but the particular reasons why legislation is often difficult to understand. Once the difficulties are understood, drafters may take more active steps to improve the product of their work. There are often many ways to achieve a particular result - if the drafter gives priority to the way which will be best understood by the ultimate reader, a significant improvement in drafting would result.

Some awareness of difficulties can be shown by testing readers' comprehension of legislation and the difficulties they encounter. Video taping lawyers and layreaders as they struggle through a particular section of legislation would be a fascinating peek into how much time is wasted (and how much time can be saved) by clear writing.

Concepts of good organization of texts that help the reader from one point to another will put a new perspective on organizing legislation (both the overall organization of an Act and the internal organization of sections).

There has been considerable debate in legislative drafting circles in the last few years over what is commonly called the "common-law style" and the "civil-law style" of drafting. Unfortunately, the debate comes down to which is "best". Instead of asking that question, for which there can never be a complete answer, it would be more helpful if the debate focused on when it is more appropriate to use one style rather than the other; then to learn the techniques appropriate for each style and the difficulties and advantages associated with each.

All this should be built into drafting courses and seminars for those involved in drafting legislation.

Other thoughts on stimulating ideas about writing legislation

(1) Improving legal writing generally

The key to improving legal writing is

(2) Specific suggestions

With the aim of improving legal writing in mind, we should:

(i) encourage more drafting courses and support initiatives to create them;

(ii) use other professions and disciplines in the design and teaching of drafting courses;

(iii) encourage and support research into how readers try to understand legislation and adopt practices which help readers;

(iv) distribute information about writing - whether by a newsletter; regular seminars or a network of contacts - "Clarity" is now internationally welcomed as providing a useful forum for doing this;

(v) establish exchanges of people and information about writing (for example, between Commonwealth legislative counsel offices, law reform commissions, universities and the practising bar);

(vi) give opportunities to lawyers on sabbaticals to undertake writing or writing research projects, including legislation;

(vii) establish joint projects between university faculties, and with universities and others relating to teaching writing or writing research, and engaging in comparative studies of drafting techniques and related matters;

(viii) encourage the establishment of bursaries and scholarships related to drafting;

(ix) encourage a multidisciplinary approach to improving the expression of the law;

(x) write to a lay audience, not the judiciary, without losing legal certainty.

Quality control

How can quality control be maintained over legislative drafting? Here are some suggestions:

(a) a style guide

Particularly in an office of more than 2 or 3 people it is helpful to have a consistent style. It helps if drafters can agree on certain conventions and develop a style guide which drafters follow in day to day writing. Many legislative counsel offices overseas have drafting style guides but not, as we understand it, in the Parliamentary Counsel Office.

(b) editors

Several legislative counsel offices overseas use editors to check on grammar and consistency of drafting. An increasing use is being made of them and English and linguistics experts. Is there room for such expertise in the Parliamentary Counsel Office?

(c) readability tests

Computer software will give drafts a 'score' which gives some indication of how easy, or difficult, drafts are to read.

(d) peer review

The comments of colleagues are invaluable. One suggestion made in a Working Group Study to the Law Reform Commission of Canada called Drafting Laws in French (1979) could establish a consistent review process and direct the writer and reviewer to important issues in reviewing drafts. The Study suggested a 'review control sheet' containing a checklist of issues of substance and drafting designed to maintain drafting quality.

 


PART 2

SOLVING INFORMATION ANXIETY

Information anxiety

People read legislation looking for answers to questions. More often than not they find what Richard Saul Wurman calls "information anxiety";(7) the black hole between data and knowledge. It happens when "information" doesn't tell us what we want or need to know.

The starting point to fill that black hole is to accept that what we write is not for ourselves but for others.

The moment we accept that fact our minds start to reorient themselves. We start to think not only of getting what we write technically correct - but of getting the message across to those for whom we write. It means we become interested in clarity as well as precision. That leads us to ask

Writing for others means we are constantly on the look-out for ideas. Ideas that help communication. Ideas we can then use for particular drafting jobs. What we should be about is to reverse the extraordinarily strange situation that free societies have arrived at where their members enter binding obligations they do not understand and are governed from cradle to grave by legislative texts they cannot comprehend.(8) (9)

Each advance of knowledge about how readers read and understand texts should be complemented by a shift in style, organization, word order, thinking, or document design by drafters.

Social and economic reasons for improving the language of the law

If laws cannot be readily understood by those most affected by them the social cost is an increasing ignorance of the law and growing disrespect for the law and those who administer it. Ignorance of and disrespect for the law damage the fabric of society.(10)

Unnecessarily complex language, redundant words, and language which fails to communicate, impose an enormous financial burden on all levels of society. Even minor improvements to the language of the law can bring substantial savings of time; time which can then be put to more productive use.

Communicating to an audience

Improved drafting techniques and ideas stem from accepting that legislation is intended to be read.

Understanding by whom particular legal language will be read and how readers will use a document gives writers ideas for writing documents so that they can be more easily understood.

(1) Stating a purpose

Research shows that readers are better able to understand and interpret texts when they have a context for reading them. Purpose sections can create a context.

What are purpose sections?

Purpose sections are sections in an Act stating the basis of the legislation and which are themselves law making or intended to have legal effect.

Sir William Dale has described the reason for including purpose sections in legislation this way(11)

An enunciation of principle gives to a statute a firm and intelligible structure. It helps to clear the mind of the legislator, provides guidance to the Executive, explains the legislation to the public, and assists the courts when in doubt about the application of some specific provision.

Why purpose sections are becoming more popular

Every Act is passed for a reason. Those reasons may be, in the mind of the reader, of lesser or greater importance, valid or not. But there is, in the collective "mind" of Parliament, a reason for every Act it passes.

On that basis, if there is a reason, a purpose, for passing an Act, it is only common sense to say what that purpose is. In the absence of a statement of purpose, the reader is left to search for his or her understanding of the purpose.

If the reader has to come to a conclusion about the purpose of an Act, even if that conclusion is a mental exercise, why not help the reader by stating the purpose explicitly?

So the reason for a 'purpose section' is to aid in understanding the text of the Act and an aid to interpreting it when questions arise. A purpose section is an aid to every reader - from the recipient of some benefit or obligation under the Act to the interpreter, whether that interpreter acts to administer the Act or to judge legal issues arising from it.

The problem with purpose sections

The major objection (raised by writers not readers) about including purpose sections in legislation is that they will be used! But used to obscure what the writer thinks would otherwise be clear.

Another typical objection to purpose sections is that they restate in different words what is said more specifically in later provisions of the Act.

A third objection is that purpose sections tend to lose their purpose and become merely statements descriptive of what follows (eg "this Act regulates the sale of liquor"), or much worse, a political manifesto.(12) This can be a real problem for Parliamentary and legislative counsel.

Aiding interpretation

The bottom line is surely that the proprietary interest a drafter has in the legislation he or she writes is fleeting. After the writing is complete the document gains a life of its own. New issues, different situations, new technology, human ingenuity all create situations the original writer may not have contemplated or have dealt with imperfectly. These issues most often arise years after the document leaves the writer. It is then that purpose sections can be particularly helpful in aiding interpretation.

Writing purpose sections is not easy, nor are they always helpful or desirable, but most readers do find them helpful. Drafters should think about including them in legislation more often than they do.(13) We urge the Hansard Society to recommend their use.

(2) Document organization

Documents should be organised to help the most likely readers. Legislation is not read for pleasure but to get information. So, from a readers' point of view, good writing is writing that structures information in a way that enables readers to get the information they seek as easily as possible.

How will the document be used?

Organizing a document well means that we must know who the most likely readers of it will be. The writer is often not the best person to make decisions about the organization of a document. Clients can help here because they should know who the likely readers are and the questions they commonly ask and mistakes most often made by the readers they serve.

Research into how people read and react to documents can be a guide to internal organization. If we can foresee how readers are likely to use a particular document we can organize it so that it is as efficient as possible for their use. For legislation we have barely entertained the notion that testing, or reader considerations, should affect our writing.

Organizing for readers

The usual drafting practice is to impose the writer's thinking process and organization on readers. A process and organization that is entirely logical to the writer but not necessarily helpful for the reader.

We can look at organization of statutes on several levels:

(a) overall organization(14)

(b) organization within Parts and divisions

(c) sentence word order.

For example

A typical legislative section will start a clause "Subject to ..."

For the writer this is entirely logical. He or she knows that what is about to be written is qualified by something coming later. The writer wants the reader to be warned, so the automatic "subject to" pops into mind.

Now think of this from the readers' point of view. Before they read anything they are told to refer to somewhere else in the document. They look there, not knowing how the qualification relates to what they are about to read. They go back to the clause and read the rest of it. Inevitably they must then go back to the qualifying clause.

The reader is bounced about the document trying to understand the writer's logic.

A different approach will often help readers. If readers first understood the basic content of the section they would then be much better able to fit qualifications into it. This could be done in a number of ways

What works best? Whatever works best for the readers for whom drafters are writing. Don't know? Do some testing ...(16), ask some questions, take advice from others.

A specific example

Here is an example of what happens when surplus words are removed from a section and it is reorganized. It is taken from New Zealand legislation but the points apply to legislation in all jurisdictions.

Section 4 of the Disputes Tribunals Act 1988 reads:

4. Establishment of Tribunals - (1) The Minister may from time to time, by notice in the Gazette, establish such number of tribunals as the Minister thinks fit to exercise the jurisdiction created by this Act.

(2) The tribunals established under subsection (1) of this section shall be known as Disputes Tribunals.

(3) Each Disputes Tribunal shall be a division of a District Court.

(4) A notice under subsection (1) of this section establishing a Disputes Tribunal shall specify the District Court of which the Tribunal is to be a division.

(5) The Minister may at any time, by notice in the Gazette,

(a) Disestablish a Disputes Tribunal; and

(b) Direct how the records of that Tribunal shall be dealt with.

Not including the heading, but counting the cross-references to "subsection (1)" as 2 words, the section contains 109 words. The number of words in the section can be reduced by more than 30% by:

(1) deleting unnecessary words (reduces the text by 19%)

(2) reorganizing the text (reduces the text by a further 11%), and

(3) using the present tense.

(1) deleting unnecessary words

The underlined words can all be deleted without affecting the meaning of the section or its legal certainty:

4. Establishment of Tribunals - (1) The Minister may from time to time, by notice in the Gazette, establish such number of tribunals as the Minister thinks fit to exercise the jurisdiction created by this Act.

(2) The tribunals established under subsection (1) of this section shall be known as Disputes Tribunals.

(3) Each Disputes Tribunal shall be a division of a District Court.

(4) A notice under subsection (1) of this section establishing a Disputes Tribunal shall specify the District Court of which the Tribunal is to be a division.

(5) The Minister may at any time, by notice in the Gazette,

(a) Disestablish a disputes Tribunal; and

(b) Direct how the records of that Tribunal shall be dealt with.

21 words were deleted; a 19% reduction in the number of words used in the section.

The words deleted in subsection (1) "from time to time", "such number of" and "as the Minister thinks fit" are superfluous. The words "from time to time" are not necessary because power given to make an appointment or to do an act or thing is capable of being exercised from time to time, as occasion may require (s.25(g) Acts Interpretation Act 1924 New Zealand). The other words are unnecessary because the Minister has power to establish tribunals to exercise the jurisdiction created by the Act. It is implicit that in doing so the Minister will decide on the number to be established.

The words deleted in subsection (2) "of this section" are unnecessary. There is no other section to which subsection (1) could refer.

The reasons for deleting the words underlined in subsections (4) and (5) will be apparent from the preceding explanation.

(2) re-organizing the text

More words can be saved by a better organization of the section.

At present section 4 breaks up the various elements of the section in the following way:

One way to reorganize the section is

For example, a minimum of rewriting results is this:

4 Establishment of tribunals

(1) The Minister may establish tribunals as divisions of a District Court by

(a) publishing a notice in the Gazette; and

(b) specifying in the notice the District Court of which each tribunal is to be a division.

(2) Each tribunal shall be known as a Disputes Tribunal and may exercise the jurisdiction created by this Act.

(3) The Minister may by publishing a notice in the Gazette

(a) disestablish a Disputes Tribunal, and

(b) direct how its records are to be dealt with.

This reorganization results in a further reduction of 9 words, or 8% of the total number of words in the section.

The elimination of words is largely achieved by omitting words which connect one subsection to another; words like "established under subsection (1)" and "under subsection (1)". Well organized sections rarely need to connect one subsection to another by specific reference. A section must be read as a whole and meaning should flow from one subsection to the next, leading the reader logically through the section.

The object of the rewrite is to treat each subsection as one complete unit of thought within the section as a whole.

(3) using the present tense

Another word can be saved if the present tense is used in subsection (3).

Instead of:

(3) Each Disputes Tribunal shall be a division of a District Court.

subsection (3) should read:

(3) Each Disputes Tribunal is a division of a District Court.

In this section, use of the present tense saves only one word. Clarity is imperceptibly improved.

The principle to be drawn from the research on organizing documents is this:

writers should structure information around people performing actions or asking questions in particular situations

This principle has been called the scenario principle.(17)

(3) The scenario principle

Here are some examples of the scenario principle:

(i) using questions

Most readers come to legislation with questions: Can I do this? What happens if I do that? How can I get this or that?

How helpful it would be if readers coming to a document with a question not only found the same question in the document - but the answer. It is a simple matter for documents to be given appropriate headings stated as questions; and suddenly the document becomes alive, meaningful, useful - it becomes functional.

For example, instead of a heading "Eligibility" why not try "Who is eligible?"; instead of "Coverage" try "What happens if there is a fire?"

Some commercial documents have started to use this technique but rarely is it found in legislation. It could and should be, either as a side note or as a section heading, particularly for legislation designed for consumers.

(ii) using diagrams

Some provisions are tough to write.(18) Despite efforts they may not be easy to understand. How can the reader be helped in these circumstances?

If there are a series of complex provisions in which it is easy to get lost an explanatory line diagram can help paint the big picture so that readers can find a road map out of the confusion. A line diagram was included in Alberta's 1973 Labour Relations Bill (although not enacted as part of the legislation) to explain how parties in collective bargaining could move to a strike or lock out position through a complex process. Australian drafters have gone further and included line diagrams as part of the Act.

(iii) using examples

Examples have been used occasionally in legislation.(19) They have been welcomed by a wide variety of readers and more use should be made of them. United Kingdom Parliamentary Counsel have been leaders in this field.

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

The use of examples, or ideas, embedded in a text can take many forms but the fundamental reason for them is to help readers better understand the information presented in the text.

Examples can be designed in various ways:

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 or a 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
Committee representing all Canadian Provinces and
Territories, except Quebec, July, 1990.)

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

an illustration of how a complicated section works

This technique has been used to good effect. An outstanding example is the Consumer Credit Act 1974.

a way of helping to change long held attitudes and approaches

The traditional way of drafting local government bylaw making powers is to list in considerable detail what a local government can make bylaws about. If as a matter of policy instructions are to draft bylaw powers as general statements, how can this be done while ensuring administrators know what they can advise their councils to do; councils have some reasonable assurance that they are not losing bylaw making powers; and the courts take a different approach to interpreting bylaw making powers?

One answer is to include in the Act a list of examples illustrating and indicating what bylaws a council can pass - all the questions listed above are then conveniently answered.(20)

(iv) using formulae

Quite often now used in legislation, the use of formulae instead of words is a very helpful drafting technique. United Kingdom Parliamentary Counsel are to be congratulated for their frequent use of formulae in legislation.

(v) other techniques

Pictures, maps, graphs, algorithms, and logic trees are other techniques that could be used to good effect in some of our laws.

 

(4) Drafting in the present tense

Advice from experts

Everyone who writes about legal writing advocates use of the present tense. Yet lawyers persist in complicating their writing by the use (and often misuse) of the word "shall" in various forms.

The advice to use the present tense in drafting legal documents is consistently given but persistently ignored by most lawyers, including Parliamentary Counsel. J.K. Aitken says:(21)

The way is therefore open for draftsmen to restrict their use of shall to the expression of the will of the parties as to actions in the future in pursuance of the document. If this is a draftsman's practice, he will find that his language seems to be less cumbersome and is easier to follow. He may also avoid positive errors ...

J.K. Aitken then goes on to recount errors that can arise by using the future tense in drafting.(22)

Robert Dick, the Canadian author of Legal Drafting, concurs with the advice to use the present tense. He also goes on to point to the dangers of not using the present tense. He concludes with a quotation from Pigeon J. formerly of the Supreme Court of Canada who said (in translation):(23)

An error to be avoided is the unnecessary use of a tense other than the present tense ... the use of future tense is therefore to be avoided.

Legislative drafting practice

In Australia, the United Kingdom, and New Zealand some legislation is in the present tense but there seems to be no uniform drafting practice. (Although in the 1991 U.K. statute book the improper use (in our view) of "shall" was consistent.) In Canada, legislation has long been written in the simple present tense.

The reason Acts were originally written in the future tense was best summed up by former Parliamentary Counsel Sir Harold Kent in his book, In on the Act.

In describing his first few days in the Office of Parliamentary Counsel he said he read Lord Thring's book, Practical Legislation:

The heart of the little book is Thring's analysis of legislative language, the form of an enactment. He says that in its simplest form it is a declaration of the legislature directing or empowering the doing or abstention from doing of a particular act or thing". He goes on to say that 'if the law is imperative, the proper auxiliary verb is 'shall' or 'shall not', if permissive, 'may'.' Later on in the Office I heard people speak of the 'imperative shall' as a key feature of the legislative form. Indeed, even when an enactment is permissive, such phrases as 'shall have power' or 'it shall be lawful' are often used instead of 'may'. The truth is that a statute creates a new legal situation, and it is appropriate for a sovereign Parliament to command that it shall be so. (p 25)

Later in his book Sir Harold notes:

from time to time I note that even the old imperative 'shall' is yielding to the present indicative (p 106)

On this analysis the use of "shall" is the command of Parliament rather than a direction to exercise a power or duty at some future time. Whatever the historical reasons for its use its time has surely passed.(24)

The practice of drafting in the present tense has long been followed by legislative counsel in Canada, in part bolstered by Interpretation Acts which require legislation to be regarded as "always speaking".

All these views are little more than a restatement of the view expressed by George Coode, an English barrister, when he wrote in 1842:

The attempt to express every action referred to in a statute in a future tense renders the language complicate, anomalous, and difficult to understand . . .

If the law be regarded while it remains in force as constantly speaking, we get a clear and simple rule of expression, which will, whenever a case occurs for its application, accurately correspond with the then state of facts. The law will express in the present tense facts and conditions required to be concurrent with the operation of the legal action . . .

But still the imperative "shall" continues in U.K. legislation. Contrast this with the best in private drafting which has abandoned "shall" - for example:

(a) forms in Trevor Aldridge's Practical Lease Precedents (Longman)

(b) the Standard Conditions of Sale (first and second editions)

(c) the Rosscastle Letting Conditions in Murray Ross Drafting and Negotiating Commercial Leases 3rd edition (Butterworths)

(d) the Law Society's business leases.

We do not necessarily suggest that U.K. Acts use "must" for "shall" where "shall" is imposing an obligation as does New South Wales and several Canadian jurisdictions, but we do say:

(a) where Parliamentary Counsel feels the urge to use "shall", counsel should consider whether or not it could be left out, or some other word or expression used; and

(b) the drafting must make clear what follows from a failure to do what an Act says "shall" (or "must", "will", "is to", or "has to") be done.

The objection to "shall" is not only that its use is now often used in an archaic way (though that would be enough to condemn it) but that the word is used for so many purposes that its effect is often unclear. A glance at the "shall" section in Stroud's Judicial Dictionary will confirm this.

 


PART 3

STRUCTURE AND FORMAT OF LEGISLATION

Development of the structure and format

Henry Thring is usually credited with developing the structure and layout of legislation. He first used a new format in the 1854 Merchant Shipping Bill which he was retained to draft. Thring continued to develop the numbering system used in statutes after the Office of the Parliamentary Counsel to the Treasury was established in the United Kingdom in 1869. He was appointed the first Parliamentary Counsel.

Although Thring was the first to use a new format and numbering system, the idea of breaking up the text of Acts and legal documents had been promoted by Bentham over 50 years earlier. Bentham suggested(25)

Denominate, enumerate and tabulate principles. It facilitates reference, and thereby contributes to conciseness ...

After the verb governing, interpose between it and the list of substantives governed, the words "as follows" with a punctum; - then give to each item a separate line, preceded by a numerical figure.

Is there something better?

Our numbering system for statutes has served us well. But is there something better? Something that would work more conveniently with a computer? The Victorian Law Reform Commission of Australia thinks so. They suggest that a modification of the international standard for numbering (a decimal system) would

It is time for a thorough review of the way in which the page of the statute book is designed. The results would surely be worthwhile. What efficiencies and economies can be introduced? What changes would improve ease of reading and improve understanding? Is the typeface, line length, page colour, numbering system, margin line and margin note placement the best it can be? We need that research to be conducted not in isolation but in cooperation with other professionals who design texts to help readers.

If just one or two changes could be made to improve the design of the statute book think of the tremendous savings of time that could be achieved throughout the statute book on an ongoing basis. And those improvements could be used for statutory instruments, local government bylaws, company bylaws, collective agreements and club rules as well as other documents.(27)

Typography(28)

Another aspect to improving the readability of texts is by the use of typographical devices. With the range of typographic tools now available is there any reason why we should not use them much more in legislation? Why not emphasize critical provisions or those that might be misread, for example, by underlining or italicising or otherwise emphasising a word or phrase? Typographical devices are one more tool drafters can use.

* * *

The point we want to make here about numbering systems, page design and typographical devices is that drafters should at least be aware of them and have an open mind about their use. If new techniques, devices, or ideas will help communication, assist in aspects of computerization, help amendments, make consolidations easier, or help readers - then drafters should at least consider them.

Some observations on the 1991 statutes

We have already suggested that a drafting manual be adopted by the Parliamentary Counsel Office. Some of the following suggestions might be included in it.

In making the following suggestions we appreciate that a number of them have other ramifications. For example, one consideration Parliamentary Counsel apparently have in drafting Acts is to reduce the number of clauses so that the opportunity for debate in Parliament is reduced. The more clauses the more possibility for debate, the fewer clauses the less possibility. In our view, that approach to drafting should be disregarded. The number of clauses in a bill should be whatever number the drafter considers necessary to achieve the object with a view to making the legislation as understandable as possible. If a rule change is needed to make this happen then obviously we would urge a rule change.

Many of the following suggestions are not new.

(a) Long title

We would eliminate them. They give legislation an unhealthy look and serve no useful purpose that cannot be achieved in other ways.

We appreciate that one purpose for long titles in the United Kingdom is to limit the amendments that can be introduced to a Bill. To eliminate long titles may require other rule changes. The point is that the rule about amendments to a Bill should not limit needed improvements to the legislative product. The rule should be designed to facilitate improvements in the product not impede them.

(b) Sentence length

Sentence length for legislation should be short. Where it is not possible to be short the clauses should be tabulated.

There is a division of opinion in legislative drafting circles on this point. Documents must be read in the context of the whole document. In most cases it can be assumed that one thought leads to another, and various techniques can be used to indicate that. The use of the long sentence without tabulation is not a technique that should continue. Having said this we must also say that we found no gross examples of the long unbroken sections in the 1991 U.K. statutes - so perhaps the problem is no longer prevalent.

(c) Cross-references

Although we have pointed to some useful Canadian drafting practices, cross-referencing in Canadian legislation is overdone and often unnecessary. Rarely are the cross-references helpful.

For the most part there is a different problem in the 1991 U.K. statutes. In an attempt to explain the cross-reference the text tends to give too much information. By the time the explanation about the cross-reference is absorbed, the sense of the text is lost.

For example, in the Statutory Sick Pay Act, 1991 (1991 c.3) section 1 reads:

1(1) In section 9 of the Social Security and Housing Benefits Act 1982 (recovery by employers of amounts paid by way of statutory sick pay) in subsection (1)

(a) in paragraph (a) (which requires regulations to make provision entitling an employer who has made a payment of statutory sick pay to recover the amount so paid by making deductions from his contributions payments) for the words "from payment" to "by making" there shall be substituted . . .

In Canada, the actual amendment would be quite separate from the explanation. The equivalent amendment in Bill form in most Canadian jurisdictions would read:

(1) The Social Security and Housing Benefits Act 1982 is amended

(a) in section 9(a), by striking out . . . and substituting:

NOTE: Section 9(a) presently reads: . . .

The extract of the legislation would be included. An explanation of the amendment might then follow. When the Act is passed the explanatory notes are dropped from the printed Act.

While the U.K. approach appears to give more information at first sight it in fact gives less because it does not explain the effect of the amendment. More helpful would be an explanation of what the amendment does.

The other advantage to the Canadian approach is that amending Acts are, for the most part, purely a means of making a change to the principal Act. Once the amending Act is passed its job is done, it merges with the principal Act, it does not continue to have a life of its own (there are some exceptions to this but they are limited).

Several Canadian jurisdictions are working on computer systems to trigger automatic amendments to principal Acts once the amending Act comes into force - so having an up to date statement of the statute law available as soon as possible.

(d) Formulae

The 1991 U.K. Statute Book shows extensive use of formulae and Parliamentary Counsel should be congratulated.

(e) Archaic words

Needless to say, archaic words should be eliminated. On the whole we did not find this to be a major problem in modern U.K. statutes.

(f) Unnecessary words

In the 1991 U.K. Statute Book more words are used than are necessary.

For example, when an internal cross-reference is made in an Act it is usually followed by the word "above" or "below". But this is not consistent and we see no need for it. (This practice is better than saying "of this section" or "of this Act" after every section reference.)

The drafter of the Registered Homes (Amendment) Act 1991 gave precise one word amending instructions, for example: "substitute", "add", "omit". Contrast that style with most of the other amending Acts in the 1991 statute book which say

"there shall be inserted", "there shall be substituted", "there shall be added", and so on. (See the Crofter Forestry (Scotland) Act 1991 for example.)

To summarize - we think useful work could be done to standardize amending instructions - using the precise model of the Registered Homes (Amendment) Act.

As mentioned earlier the U.K. drafting style still clings to the outmoded "shall".

For example:

(i) "This Act shall come into force on"

(Why not this Act comes into force on . . .?)

(ii) Paragraph (b) of subsection (2) above shall not apply where . . .

(s3 1991 c25)

(Why not "Subsection (2)(b) does not apply when . . .?) Yet earlier in the same section the following words were used: "This section applies" not "shall apply".

(iii) . . . a person shall be entitled to the care component of a disability living allowance

(s37ZB 1991 c21)

(Why not "a person is entitled to the care component . . ."?)

There are many other examples. Drafting in the present tense would not be a difficult change of drafting style to make but would improve the tone of the Acts considerably (as well as saving words!).

(g) Using examples

The United Kingdom has been the leader in using examples in legislation. The technique is not often used, but has been applauded by academics and the judiciary alike. More use could be made of them.

(h) Tone

A more conversational tone could be used in statutes.

For example:

"A person who is under 18 years old"

instead of

"a person who has not attained the age of 18 years".

(i) Definitions

Tend to be scattered all over the place, and difficult to follow and find.

(j) To summarize

Many of these suggestions may seem "picky", but combined, they would lead to improvement in drafting.

The real test of course is to take a complete recent Act and try to redraft it in a plainer style and get the same legal effect in the rewrite. That would be a challenging project but probably the only way of proving what can be done. Unfortunately, time did not permit us to attempt that.

Computers and the drafter

No doubt the Hansard Society will be familiar with what "the computer" can do to help drafters. But too many drafters either don't know, or worse, don't seem to care. Because the computer can be so helpful to legislative drafters in a variety of ways we touch on some of them here.

It goes without saying that the sooner legislation in all its forms is on a readily accessible database, and in its most up to date form, the better. We assume that the Parliamentary Counsel Office has computerized facilities which allows them to search the statute book to help with consequential amendments to other Acts, and to store and retrieve up-to-date versions of legislation.

The typical functions of a word processing system are well known: the capacity to move text around, to search and replace words and phrases, to spellcheck, to check the occurrence of words and of their use in defined senses, are all particularly helpful to legislative drafters.

But there are a number of facilities that are not as well known and not used as much as they might be in drafting. These include

Helping to design a precedent bank of questions and clauses

But a computer can do more than this. It can help drafters significantly improve the quality of their work.

(i) drafting the law

Not only must legislation be legally sound but possible alternative approaches, solutions or options to a given problem or issue need to be considered. The traditional precedent only gives a standard form answer - it does not exercise the mind. If the drafter does not think of an alternative a precedent will not help.

(ii) knowledge of the facts

Knowledge of the facts is based on asking the right questions. Again the traditional precedent does not help - it gives answers without necessarily knowing all the relevant facts.

(iii) integrating the law and the facts

The aim of drafting legislation is to achieve a client's purpose in the best way without unforseen consequences. Computer software programs are now available to help with the task. Computer programs can be developed to help draft the simplest to the most complicated legislation - but the program would take some time to develop.

(iv) the program

The program builds on what Parliamentary Counsel already have in a written questionnaire form (standard questions to ask) or what they have learned to ask clients through years of experience. Typically asked questions are redesigned and loaded into the computer program.

Any particular answer to a question will initiate a whole new series of questions. All the variations, options and alternatives Parliamentary Counsel would normally ask a client are put into the program. Each Counsel in the office would be asked to participate in the questions, variations, options and alternatives. The result is a very comprehensive program containing the collective knowledge and experience of the Office. It can, of course, be modified from time to time as necessary.

Because the questionnaire is computerized it can be structured in the form of a logic tree. This means the answers to certain questions automatically cause the system to move into specifically selected lines of other questions - questions that might not have been raised without the help of the computer. Alternatively, the computer will automatically eliminate other questions which are not relevant (a bit like the typical passport form which allows you to skip several questions if, for example, you are not married or have no children).

By this sophisticated branching system the Parliamentary Counsel is lead through all the questions necessary to get a detailed description of the law to be created. For many questions the computer provides a suggested answer - if the answer is accepted the return key is tapped - variations to the answer are also given if requested and problems highlighted.

The system can be seen as the collective wisdom of the Office in asking the questions to get the facts which can then be turned into clauses, reflecting the office drafting style.(29)

The advantages of this kind of program to lawyers in private practice are obvious. Even the most junior of lawyers has the benefit of the program when asking questions and thinking of the kinds of questions to ask. A similarly structured program to develop legislation seems to be equally advantageous. Parliamentary Counsel do not use precedents - certainly not in the same way or to the same extent as lawyers in private practice. The drafter is often left to his or her own devices. The dangers of the drafter not asking all the right questions, or of not thinking of all the options, are very real. With programs designed to ask the right questions the drafter has a helpful support system.

Over time it should be comparatively easy for the Parliamentary Counsel Office to pool its collective knowledge about the questions that should be commonly asked and the things that should be considered when designing particular pieces of legislation or elements of them.

 

Drafting precedents

Obviously computer programs that develop questions can also propose precedent clauses. Whether for law firms or Parliamentary Counsel Office standard clauses(30) can provide consistent style and quality. If a drafter proposes a variation to the standard, justification for the change could be required, or approval from a senior member of the office.

There seems to me to be a considerable opportunity to improve substance, style and consistency of legislation with this kind of project.(31) We suggest the Hansard Society recommend it.

 


PART 4

OTHER REMARKS

General

The best statutory drafting is now very good. See for example, the Local Government Act, 1988 and the draft bill attached to the latest Law Commission report on land registration. Some legislative drafting is bad: see the notorious Leasehold Reform Act, 1967. Many problems remain with statutory amendments.

To the extent that they are not now the practice in the Parliamentary Counsel Office, Clarity endorses the recommendations of the Statute Law Society Memorandum of October, 1973 to the Renton Committee. Virtually all of those recommendations are part of normal practice in Canadian jurisdictions and have been the practice for many years.

Accessible statute law

The accessibility of statutes, that is, being able to get a copy of the law in its most up to date form, is obviously an integral part of having accessible and understandable law. This is not a new issue. In 1835, the Statute Law Commissioners said in their first Report,

The statutes have been framed extemporaneously, not part of a system, but to answer particular exigencies as they occurred.

The Statute Law Society made the same point in its memorandum to the Renton Committee in 1973. Although improvements have been made in recent years much more remains to be done. For example, a system of statute revision along Canadian lines should be considered in association with computerization of statutes and an automated amending system.

Vetting of drafting style

There have from time to time been suggestions that some form of vetting procedure be put in place to ensure consistency with other legislation and adequacy of drafting style. Some have suggested the House of Lords might perform that function, others that a special committee be established for vetting by experts. This proposal was made by Lord O'Hagan in 1877:

A department by which bills, after they have passed Committee, might be supervised and put into intelligible and working order, and then submitted for final revision to Parliament before they are passed into law.

The French have a system by which the Conseil d'Etat have oversight of style and this system of audit is supported by some.

The question of auditing bills has some intrinsic difficulties but in concept has some points to recommend it. This cannot replace the attempt at the earlier stages of drafting for clarity. An audit committee might be linked to the general concern about lack of proper consultation with those most effected by new law. Once again quoting the Statute Law Society

We think it essential that ways are found whereby users can so far as possible be properly consulted

(a) before a bill is drafted,

(b) when it is being drafted, and

(c) at all stages of its passage through Parliament.

That consultation and consideration could well include issues of clarity.

As Francis Bennion has said

It is time for heads to go down and for close attention to be paid . . . to statute law.

Earlier we suggested that a Committee of both Houses of Parliament might be involved in authenticating a drafting manual for guidance of Parliamentary Counsel Office. The same Committee might also be given oversight of Bills from a drafting perspective.

Other odds and ends

There are a multitude of other things that could be said; a new Interpretation Act; further support for recommendations of the Renton Committee that have not been implemented; support for Bennion's "Keeper of the Statute Book"; the uses of computerization of statutes; and so on.

The present statute law system has grown up to serve the legislators not the legislated. The whole movement for reform should be based on the principle that the legislative process should be concerned with the end product, and the ultimate users of it. While this may be over simplistic, we believe that goal must be kept in mind by reformers or else there will be a real danger of getting bogged down in apparently mind boggling, if not mindless, detail. Readers may note that we have not defined "plain English". We do not need to - we are confident that readers will give the term a purposive interpretation.

 


Last words

Parliamentary Counsel and other writers of law don't write for themselves; they write for others. The essence of writing law is communication.

There is no special language - grammar, syntax or composition for statutes.(32) The form of statutes over the centuries and in different countries attests to the correctness of that view. Each in their own way create law. Each in their own way must be interpreted by those who must administer them, the public affected by them, the parties bound by them, and by judges who must make decisions about them.

We can all improve our communication if we adopt the late Dr Elmer Driedger's philosophy which is valid for all legal writing(33)

a writer of laws must have the freedom of an artist, freedom to use to the fullest extent everything that language permits, and (the writer) must not be shackled by artificial rules or forms; and further, laws should be written in modern language and not in ancient, archaic or obsolete terms or forms.

 

_______________

 

Clarity appreciates the opportunity of making this submission to the Hansard Society.

 

 


 

APPENDIX

 

 

THE ARGUMENT IN FAVOUR OF
USING EXAMPLES IN LEGISLATION

(An updated version of the Appendix is available under a separate heading of this web site)


  1. Francis Bennion sets out the more common arguments in favour of the UK style starting on page 23 of Bennion of Statute Law, Longman (3d) 1990.

  2. This might be undertaken by a joint body composed of Law Commissioners, members of both Houses of Parliament, representatives of the European Community, and others.

  3. Report of a Committee appointed by the Lord President of the Council, chaired by the Right Honourable Sir David Renton: The Preparation of Legislation, Comnd 6053, 1975.

  4. This need only be an extension of the Government's existing commitment to plain English forms and government communication (first instituted by Prime Minister Thatcher).

  5. There is a lot of existing material in courses from the University of Ottawa and Edinburgh, but for the most part, they deal poorly with the interests of readers.

  6. The work of the University of Reading in information communication could be a worthwhile contact.

  7. Richard Saul Wurman: Information Anxiety, Doubleday.

  8. A modification of Francis Bennion's comment:

    It is strange that free societies should thus arrive at a situation where their members are governed from cradle to grave by texts they cannot comprehend. The democratic origins are impeccable the result far from satisfactory.

    F. Bennion: Bennion on Statute Law, Longman (3d) p 10.

  9. The admirable comment of a witness in the Wandsworth County Court comes to mind: I know that ignorance is no excuse for the law.

    Recorded in a footnote to A Russell: Legislative Drafting and Forms, Butterworths 4th ed p17.

  10. See Sir John Donaldson's comment in Merkur Island Shipping Co. v. Laughton [1983] 1 All ER p334.

  11. Statute Law Review, Spring 1988, p15.

  12. Francis Bennion probably sums up the drafter's objections best:

    Draftsmen dislike the purpose clause. They take the view that often the aims of legislation cannot usefully or safely be summarized or condensed by such means. A political purpose clause is no more than a political manifesto, which may obscure what otherwise may be precise and exactŠ The draftsman's view is that his Act should be allowed to speak for itself.

    F. Bennion: Statutory Interpretation, Butterworths, London 1984 p580.

  13. Using purpose sections is not an argument for a civil law drafting style instead of a common law style. It is intended as a plea to keep an open mind and to use whatever tools are appropriate to do the job. The Renton Committee supported their use.

  14. It is entirely correct for a writer to start a drafting project making sure the foundations are properly established. Creating and administrative agency and providing for its operation for example - and then building on that structure. But when the writer is satisfied that all the pieces are correct he or she should think of organization from the reader's point of view. Is it helpful for the administrative agency to come first? Would it be more helpful if the important substance of the legislation came first - with the administrative agency coming much later?

  15. Footnotes and typographical aids are not used in legislation but there is no reason that this should be so.

  16. The Law Reform Commission of Victoria, Australia, commented on the practice of stating conditions before a rule in these words:

    Linguists have discovered that that style of writing is only suitable for those who read or write in Japanese or Turkish. It runs directly contrary to the way in which ideas are presented in other languages, including English.

    Access to the Law: the structure and format of legislation (1990)

  17. PV Anderson, RJ Brockmann, CR Miller: New Essays in Technical and Scientific Communication: Research Theory and Practice (1983), essay by Linda Flower, John Hayes and Heidi Swarts called Revising Functional Documents: The Scenario Principle p41.

  18. In a Great response to a question about why the Canadian Income Tax Act could not be drafted using a ten commandments style, Don Thorson, former deputy Minister of Justice and principal drafter of the Act said.

    The fact is that Moses is not available for employment by the Department of Justice, and even if he were available it would be interesting to see that Moses could hope to do with concepts such as "tax paid undistributed surplus on hand" "control period earnings" and "foreign accrual property incomeŠ"

    (ML Friedland: Access to the Law, Carswell-Methuen, (1975) p65.

  19. Section 14AD of the Australian Interpretation Act says how examples are to be treated if they are used in legislation.

  20. A separate paper expanding on the argument for using examples and encouraging their use is appended to this paper.

  21. JK Aitken: Piesse The Elements of Drafting, The Law Book Company (6 ED) p81.

  22. See also Attorney-General v. Craig [1958] VR 34 in which the Victorian Full Court commented on practice of present tense drafting.

  23. Redaction et Interpretation des Lois (Quebec: University of Laval, 1965) p9

  24. Even Lord Thring went on to say in Practical Legislation p63

    An Act of Parliament should be deemed to be always speaking, and therefore the present or past tense should be adopted and 'shall' should be used as an imperative onlyŠ

  25. Jeremy Bentham: Of Nomography, p265.

  26. Law Reform Commission of Victoria: Access to the Law, the structure and format of legislation (May 1990). But even so the Commission thinks letters are needed in some cases where Canadian jurisdictions would use ".1 or.2". The jury is out on the Commission's suggestion - but it is worth studying.

  27. Say for example that comprehensive tests showed that readers were able to locate information a second faster if marginal notes were placed as true headings to sections. - or that the placement of section numbers alongside section headings speeded section location-(or vice versa) think of the cost saving that could be achieved by everyone reading that statute book each time it is read.

  28. J. Hartley: Designing instructional text (2ed) (1985) Nichols Publishing.

  29. This description is based on a 11 November 1985 National Law Journal article called Help in drafting complex documents. The article described a program called "Workform" available at that time in the United States.

    There are other programs similar to this on the market and some word processing systems allow this form of program to be developed. (See the Lawyer's PC, 1 October 1987 issue describing WordPerfect as a legal systems engine.) We do not know of any legislative drafting office that has experimented with this program. It is being used in some private law firms.

  30. The great fear of precedent clauses is that once a precedent is established it stagnates. Parliamentary Counsel can avoid this by periodic review.

  31. A project of this nature could be Commonwealth in scope - perhaps in one sense picking up on the suggestion made by Francis Bennion in 1980 in Statute Law (p24):

    Standardization is an area where cooperation between Commonwealth countries would be fruitful. Model clauses on topics like strict liability or powers of entry could be drawn up in uniform terms applicable to any common law country.

  32. So wrote Dr. Elmer Driedger in "A Manual of Instructions for Legislative and Legal Writing", Canadian Government Publishing Centre, Ottawa.

  33. Driedger's manual p4.