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Plain Language and Legislation

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CHAPTER 1
WHAT IS PLAIN LANGUAGE?

Background

Plain language is language which is direct and straightforward. It is designed to deliver its message to its intended readers clearly, effectively and without fuss.

Writing in plain language involves doing more than simply using intelligible words and expressions. Good grammar is needed for any written text to be readily understood. Organising material logically and structuring sentences simply allows information to be absorbed more easily. Designing a simple physical layout makes a document easier to read.

Campaigners encouraging the use of plain language usually focus on legal and other official documents which affect the public. People are generally considered to have the right to be informed of benefits they are entitled to, and of obligations imposed on them, in language which is self evident to them. Misunderstanding and ignorance of the law increases the likelihood of non-compliance and jeopardises the exercise of rights.

History of plain language and the law

Attempting to make the law more readable and more accessible is not a modern aim. A commission was appointed in Scotland as long ago as 1425 "to see and examine the bulkis of law of this realme … and mend the laws that needs amendment". Early critics of legislative drafting include Edward VI who declared in the 16th century that he wished "that the superfluous and tedious statutes were brought into one sum together, and made more plain and short, to the intent that men might better understand them". 1

The Parliamentary Counsel's Office was established in 1869 with a view both to improve the form of statutes and to reduce the government's drafting costs. Lord Thring, the first ever Parliamentary Counsel, considered that legislative drafters should use the best popular language 2 and his 1877 pamphlet "Instructions to Draftsmen" is credited as having materially improved the style and arrangement of statutes. One of his successors as parliamentary counsel remarked that legislative language since the establishment of the Office was "in its simplicity and clearness far superior to the verbose and obscure language of enactments of forty or fifty years ago" 3. Despite these improvements, and the desire of subsequent drafters to prepare Bills as clearly and simply as possible, criticism of the style of legislation has not diminished.

The plain language movement started to gain momentum a century or so after Lord Thring proclaimed the virtues of drafting in a simpler style. Insurance and other consumer contracts were initially subjected to the most attention in the drive towards simplifying legal documents but the use of plain language in legislation quickly became a core part of the debate. The Renton Committee's 1975 Report on the preparation of legislation 4 reignited interest in how UK legislation can best be drafted. The Committee's principal term of reference was to review the form in which public Bills are drafted with a view to achieving greater simplicity and clarity in statute law. There are now various movements across the world that promote the use of plain language in legislation and the drafting offices in most English speaking countries are committed to drafting legislation in "plain English".

There have been some official and unofficial attempts to rewrite statutes in plainer language. Chapter 3 provides more detail of the most prominent UK project, the Tax Law Rewrite, and of other official projects undertaken elsewhere in the world. One of the more notable unofficial attempts to improve UK legislation occurred when a director of the Plain Language Commission rewrote and redesigned the Timeshare Act 1992. The resultant "Clearer Timeshare Act" was published. There followed a series of public exchanges between the author and Parliamentary Counsel (who drafted the original Act). The revised Act was undoubtedly shorter but no conclusion was agreed as to whether it achieved its goal of being more comprehensible without changing the law. One matter on which both seem to agree is that rewriting an Act in plain language is in many ways easier when freed from the pressures of the legislative process. 5

Legislation on plain language

Legislation has itself been used to tackle the prevalence of obscure, excessively lengthy and confusingly structured language in other forms of legal documents. The Unfair Terms in Consumer Contracts Regulations 1999 6 implemented the European Union directive on unfair terms in consumer contracts in the UK. They require the of use "plain, intelligible language" in consumer contracts. 7 And they go on to set out a "most favourable interpretation" rule which stipulates that where there is doubt as to what a term means, the meaning most favourable to the consumer will apply. 8

The Office of Fair Trading polices compliance with the regulations. It interprets the regulations as requiring terms which ordinary members of the public, not just lawyers, can understand. It expects consumer contracts to use ordinary words, in their normal sense, as far as it is possible to do so. It considers the size and legibility of typography, the use of colour and background and the quality of paper to all be capable of influencing the intelligibility of a contract. 9

The UK Government recently asked the Law Commission for England and Wales and the Scottish Law Commission to consider the desirability and feasibility of replacing the existing regime on unfair contract terms with legislation which is "clearer and more accessible to the reader, so far as is possible without making the law significantly less certain, by using language which is non-technical with simple sentences, by setting out the law in a simple structure following a clear logic and by using presentation which is easy to follow" 10.

It was with a view to achieving a simpler and more accessible style that the Law Commissions took the unusual step of including sample clauses drafted by Parliamentary Counsel in their subsequent joint consultation paper in order to gather views on presentation as well as substance. 11 Those clauses formed the basis of the draft Bill appended to the Commissions' joint final report. 12

Criticism of plain language

Plain language continues to have its critics. Some consider its populist style to be inelegant, unsophisticated or even patronising. But writing statutes is not a literary exercise. The purpose of legislation is not to entertain or captivate its readers so drafters should not be concerned as to whether their audience enjoys reading their product. It is more important that statutes be easy to read and understand - goals which using plain language can help to achieve.

Some accuse plain language of being a simplified, restrictive version of the language created solely to benefit authors and readers who are unsophisticated or uneducated. Experts in a field which is the subject of plain language writing sometimes accuse the authors of "dumbing down" the topic. But plain language does not involve using "poor" English. And it is definitely not a pidgin. Ordinary words and good grammar are both essential elements of making language understandable.

So suggestions that plain language is simpler to use, or that it is somehow anti-intellectual, are entirely unfounded. Plain language does not tend to come naturally to the author of any work and the legislative drafter is no exception. Only the clearest thinkers and writers can absorb the most complicated subject-matters and present information in a way which is accessible to a wide audience. The end product may look easy to write - the reality is that it is much more difficult to simplify than to complicate when writing about a complex topic. Skill and time are both essential if writing is to be made clearer.