"The Plain Language Movement will only be helpful if it can discipline itself to realise that what matters in communicating law is not dogma but effectiveness in the context."
Daniel Greenberg, a senior legal drafter from the Office of Parliamentary Counsel, gave a talk on The Illusion of Plain English in Legal Contexts' at a CFL research seminar on 28 April 2010. Afterwards he was interviewed by Ria Perkins.
You work at the Parliamentary Counsel Office in Whitehall, what first interested you in legal language and lead you to working in drafting legislation?
I have always been interested in the way legislation works. Since both my parents are reasonably sane on most subjects, my young interest in legislation is probably best attributed to a non-hereditary congenital defect. Whatever its origin, it led me to purchase a large quantity of Queen's Printers' copies of statutes at an auction when on holiday as a child, and I have never looked forward since. When I qualified as a barrister and joined the public service as a legal adviser in the Lord Chancellor's Department (more than 20 years ago), I rapidly saw that there was almost no area of the law that had not been either taken over or significantly invaded by legislation; it was still the case, however, and remains the case, that aspiring lawyers were taught a great deal about how the common law works and little or nothing about how legislation works. I made it my business to find out more about the practicalities of legislation, and I am now involved in writing and teaching about it in various contexts, believing that it is still a serious gap in most lawyers' education.
Please could you give us an idea of what is involved in your work drafting legislation and the role played by language?
As a Parliamentary Counsel I write Acts of Parliament, taking my instructions from departmental lawyers who in turn receive instructions from policy officials in their department, who are generally in turn reacting to broad policy directives from Ministers. The principle added-value that I bring to the process is less about language and more about adding an additional opportunity for conceptual analysis. But once the policy intention has been analysed to a sufficient level of precision to enable it to be clearly and simply encapsulated, there are still significant choices of language available. In making those choices the first priority is to express the law in a simple and clear manner that uses appropriate language for the most likely readers in each context. Other priorities include using language that gives a flavour that will help the courts when applying areas of necessary judicial discretion.
You speak about expressing the law in a "simple and clear manner" and in your speech you distinguished between plain language (i.e. the Plain Language Movement) and simple language. To what extent do you think that the plain language movement could or should ever play a role in legislation?
The plain language movement will only be helpful in the construction of legislation if it can discipline itself to realise that what matters in communicating law, or anything else, is not dogma but effectiveness in the context. So a law about the taxation of profits from trading in oil futures will be simple and clear if its intention is readily understood by all the inhabitants of the rather limited class of person involved in that highly complex trade; and the most certain way of ensuring that is likely to be to adopt the technical jargon of the industry, rather than embarking on a necessarily doomed attempt to render the complex concepts of that industry into language which anyone can understand. A law prohibiting people from taking dogs into the park, however, must be communicated in language which enables people who own dogs to discover the nature and extent of the prohibition, preferably without having to seek professional advice.
How do the changes in the way in which society uses and understands language affect legislative drafting?
If law is not clearly understood by the people likely to be affected by it, it is not good law. The concept of the rule of law depends upon achieving legal certainty to as high a degree as possible, and that requires clear language that is not susceptible to a variety of actual or purported understandings. So when I write a law, I must have a feel for how the language that I use will be understood by contemporary readers, and their starting point will be an expectation that English words and phrases used in legislation will have the same meaning as in "normal" use. There are two main qualifications to this. First, where a law is aimed at a particular sector of society it will best achieve clarity and certainty if it reflects language-use within that sector, which may differ considerably from wider use. Secondly, there are some things that legislation does that have no precise counterpart in the real world, and it may be more helpful to readers to use language that does not attempt to invoke the "nearest" real world concept, because the effect may be to mislead the reader into thinking that he or she has understood more than they actually have. So, for example, use of the legislative "shall" to impose a legal duty puts the reader on notice that the legislation is doing something that has special legislative resonances and implications; which "must" does not do.
How do you see the future of legislative drafting?
Difficult to say. I think there is bound to be less consistency as the number of sources of legislation increases, partly as a result of devolution. Overall, however, the present trend in favour of simplicity of style and language is likely to continue, which is good; but in the hands of the inexperienced or ill-taught it can lead to unhelpful uncertainty, which is bad. I like to think that readers of legislation will be used increasingly to inform and assess the quality of its language, and there are some reasons to think that the hope may not be forlorn. Views expressed in this interview are purely personal views.
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