| Return to Contents Draftsmen's Devils David Hull Compared with advocacy, law drafting is a gentle discipline, but it has its own demons . For example, there may be a problem of inadequate instructions. Mention this at a gathering of legislative draftsmen and heads will nod reflexively. Everyone knows at once what you are talking about. Touch on the topic of a brief delivered in the form of a draft law and you may even provoke a scowl or two. At the other end of the process, when it comes to the result, there is a continuing debate about clarity - what it means, its proper place, the things that are said to work against it, the need to move with the times and the quicksands of fashion. Legislation is a means of carrying out a policy that is, for whatever reasons, to have the force of law. It is an essential method of dispatching public business, and therefore it is politically important. In the ordinary course, the preparation of a law depends on a political decision to include it in a programme of legislation and this is obtained on the submission of a summary of the proposal. Then the project is developed in detail. For this purpose, a distinction is conventionally drawn between the substance of the policy and its expression as a law. The first is regarded as the domain of those who give the instructions. In most cases they will be officials in the department whose political head is promoting the Bill. For his part the legal draftsman’s role is to achieve the second object. He will be expected to do so in a way that is sometimes described as being "legally effective". Law drafting offices also seek to ensure the coherent development of the body of law as a whole, which is a broader ambition. Nothing matters more than the ideas that make up the substance of the policy. If they are lacking, the outcome will be unsatisfactory, though the consequences may not be obvious or dramatic. Flaws in policy tend to be less visible and more debatable than technical mistakes and of course, in interpreting a statute, a court of law will try to make it work as far as it can properly do so. The boundary between policy and its expression is not clear-cut. Although the legal draftsman needs a sufficient brief to enable him to begin, what this means is that the client department should provide instructions in detail that amount to a reasonably complete working proposal. Legislation, typically, is general and prospective in its purposes. It is seldom possible to foresee and address all of its implications at once. In practice, the policy is developed further in the dialogue that takes place during the drafting process itself. On receiving his instructions a draftsman analyses them critically. If necessary, he discusses and argues them with the instructing officials. He then prepares a first draft for their consideration. They in turn scrutinise it and comment. This process is repeated until the project is ready to go forward. Along the way, any of the participants may identify an issue that needs to be considered. To do so is often to point to a solution. By the nature of its work, a law drafting office is also likely to be able to contribute on matters of common technique, such as licensing systems, the definition of criminal offences and rights of appeal. Although they may be seen as "machinery", they are matters of substance. The involvement of a legislative draftsman in the development of policy is well-recognised. However, the extent to which the drafting of a law shapes that policy may be underestimated. According to some philologists, the very act of expressing an idea in words is inherently creative. Whenever he does so, a legal draftsman is therefore moulding the idea. For most of us, this may not be in consequence of any conscious awareness of the deeper reaches of philosophy. As much as any other branch of legal practice, law drafting is a practical affair (not least because it is carried on in a political environment). Nonetheless, as with other aspects of the discipline, the force of that fact is something that becomes apparent with experience. So, while a legislative draftsman’s role in policy may be described cautiously as a minor one, to be exercised with discretion and chiefly to identify and fill in "lacunae", that is not a sufficient account of it. Driedger, the leading Canadian authority, drew the distinction more sharply. "It is not the function of a draftsma wrote, "to originate or determine policy." [1] (Emphasis added.) By the words "to originate", he must have meant to initiate the proposal for legislation. There is no doubt that, in the course of their work, legal draftsmen do contribute original ideas in support of the general purpose. The point is that it is for the instructing client to decide whether or not to adopt the idea. In the same way, the instructing officials by their own comments influence the expression of the law. It will occasionally seem to them that their draftsman is stubborn about his own form of words. One explanation is likely to be that he no longer remembers just why he chose them. However, he is confident that he had good reasons for doing so, and he knows from past experience that it is not wise to depart too readily from your draft. On the other hand, he may just be a little inflexible. Collectively they both influence the result. When the question eventually comes to be put, a final draft has a way of commanding the initiative. It is the result that matters, politically and to the public. The division of function is an internal working method. If a law has shortcomings, the officials and the draftsman are both liable to be held to account, jointly and severally. The latter may hear a defect of substance criticised as a drafting error. He will not like it very much, and it may not be fair comment. But politicians and the public have their own instincts, and it may be a safe verdict as far as the public interest goes. On all of these considerations, a legislative draftsman himself has a healthy interest - professionally and personally - in the quality of the instructions he receives. In an extreme case, an inadequate brief is immediately recognisable. It will barely carry a proposal beyond the submission on which political approval to proceed was secured. This will probably be attributable to a lack of resources (for example, as in the case of a very small, developing country which has been provided with law drafting assistance but not with complementary aid for the substance of a project). Where resources are available, the likely reason is that the task of preparing the instructions has been underestimated, and assigned at an inappropriate level. The deficiencies are usually more oblique. They may not be evident until drafting has begun. However, the problem may be indicated in various ways. The absence of any explanation of the background to a proposal is, for the reasons set out below, a reliable sign that it is imperfectly developed. Instructions that are preoccupied with particular details, and are to a degree haphazard, with a corresponding lack of attention to general principle, are also symptomatic. They may be written in legalistic language. It may be apparent that the instructing official sees his relationship with the legal draftsman as being that of a lay client and his solicitor, as if he were a private individual asking a lawyer to prepare a domestic lease. On the other hand, he may reveal, by the way in which the brief is couched and in which the work proceeds, a literal and formal understanding of the meaning of the words "instructions" and "to draft". Each expression is a term of art, and persons who use them self-consciously tend not to understand them properly. Dealing with the problem requires tact, and carries with it an obligation. It flows from a lack of understanding of how a law is prepared. An official who is responsible for working up a policy is not a layman. He may be expected to know his subject, to think in depth, to have powers of critical analysis and to be able to explain himself fluently and discursively. But for anyone providing a specialist service, there is a certain disadvantage in being seen to direct a client how he must go about using it. The need for a sufficient brief arises because of the division of function. The discipline of law drafting stands on the virtues of that division. It is therefore incumbent on those who practise the discipline to explain themselves to their clients. Most law drafting offices publish guidelines ow instructions are best given [2] . If these are to be effective, they should explain why it is so. As far as the nature of the process is concerned, it is important to stress two things. The idea that to work its legal spell, a law must resort to incantation is surprisingly widespread. People who are not lawyers sometimes become uneasy if they think a draft does not have a legal flavour. It is not universally understood that the best way to give instructions, and to comment on drafts, is in everyday language. The instructing official needs to know this. For a successful outcome, he must also appreciate why a critical exchange is essential. This means in the first place that he must be aware that a statute, characteristically, does not explain its motives. What it does is to state a legal effect, which is not the same thing. For that basic reason, if everyone who takes part in its preparation is to understand clearly where the project is heading, the person who provides the instructions must explain the reasons behind it. He has to be able to do this for his own benefit, to be sure that he has thought them through properly himself, but it is also necessary to enable the draftsman and the other people who may be consulted in the course of the exercise to contribute usefully. The instructing official should appreciate that policy is developed significantly by the drafting process, and why that is so. He must be made as conscious as the draftsman of the fact that if the critical exchange does not take place, something will almost certainly be overlooked, and that this can happen as easily in a project that is simple and straightforward as in a more complicated matter. The problem of inadequate instructions frequently arises when they are delivered in the form of a draft law. It is a precept of practice within the discipline that such instructions are undesirable. One school of thought, arguably the wiser, is that they should simply be returned. Most legal draftsmen have heard of the legendary practitioner who wordlessly tears them up in front of his startled clients and sends them away to try again. There have been such draftsmen, but the reality is that law drafting offices from time to time receive and act on instructions in that form. There are compelling reasons for the rule of practice. The immediate one is that they create extra work unnecessarily, but this is a consequence rather than the real vice in them. Instructions in the form of a draft law do not explain themselves. They therefore raise a question whether the person who has prepared them has considered the policy he is charged with developing. He has not demonstrated that he has done so. There is a serious risk of failure of communication. For one thing, the instructing official will be inclined to think that his intention has been understood. The legislative draftsman will want to be sure that he does understand the reasons for the proposal. He will therefore be concerned to identify those reasons from the instructions - such as they are - that he has. To do so involves an unnecessary process of inference. To some extent it will inevitably be a chance affair. He may identify all the relevant points. He may not. In a task as important as the preparation of a public statute, the risk should not be taken. There are better ways of going about it. The common reason why instructions are given in the form of a draft law is not that the client fancies his hand. It is that the proposal is to follow a law that has already been passed somewhere else. To do this successfully involves knowledge, skill and judgment. It requires an understanding of the legal effect of that law in the place where it was made, the reasons for it and the exercise of judgment as to whether - and if so, to what extent - it is suitable for one’s own needs. If the other law is put forward as the bare brief, that is a very strong reason for thinking that its implications have not been weighed and, more often than not, it is the truth of the matter. And then there is this other demon, the one within. Some years ago Martin Cutts, a professional writer too and a proponent of clear expression, wrote to the Parliamentary Counsel Office in England. He wanted to know if laws could be written more readably. Letters were exchanged over a period of time. Eventually Cutts was invited to see if he could do better. The invitation was accepted. Choosin Timeshare Act 1992 for his exercise, Cutts produced a discussion booklet, "Unspeakable Acts?" [3] . In it he set his own effort, which he called the "Clearer Timeshare Act", alongside the official version. He then solicited the response of the Office and public comment. The correspondence was now passed to el who had produced the Act in question. He did not accept that the alternative achieved the intended effect of the law. [4] When he had his responses in, Cutts revised his draft and ished it in a second booklet, which he called "Lucid Law" [5] . The Right Honourable Sir Thomas Bingham, then Master of the Rolls, contributed a foreword. It concluded with the following sentences: "This invaluable report invites readers to make their own comparison and decide: who has won the challenge? If the vote goes for the Clearer Timeshare Act an important point has been made." That would also have been the case if the expert version were thought to have prevailed. Thirty years ago, it would have been unusual to extend the kind of invitation Cutts received. Had it been done, a private reply would probably have been expected. I doubt that anyone would have foreseen that a very senior judge would publicly proclaim the affair a contest. Times have changed of course, but the language of public statutes has always been a matter of critical interest. Complaints that laws are hard to read usually assert one of the following things: (a) they are too long-winded; (b) they use language that is unfamiliar to most people; or (c) they are convoluted. Sir Robert Micklethwaite QC, the Chief National Insurance Commissioner, illustrated one facet of the last point vividly when he told the Renton Committee in the 1970s: "A statute should not only be clear and unambigut readable. It ought not to call for the exercise of a cross-word/acrostic mentality which is able to ferret out the meaning from a number of sections, schedules and regulations." [6] Another common form of convolution is to introduce a gratuitous step for the reader to have to digest, as when he is told unnecessarily that A will apply in case B as if case B were case C (instead of the direct proposition A applies in case C). In recent years, the plain English movement has been in the forefront of those who assert that laws can be written more clearly. Their views have influenced the drafting styles of some offices. However, committed legal draftsmen do not yield against their better judgment to what they may regard as the trends of the moment. In 1994 Jack Stark, who was then Assistant Chief Counsel in the Legislative Reference Bureau of the State of Wisconsin, had this to say: "The plain language school has already supplied its me store of help." [7] One of his points was that the school does not say what clarity means. It only advocates its use, or identifies ways in which its presence can be recognised or tested. In the context of writing laws, it cannot mean a mere lack of ambiguity. That is subsumed in the concept of accuracy, which itself refers to the coincidence of the effect that the draftsman achieves with the intention of the person who promotes the draft law. What the plain language school really means, says Stark, is that laws should be quickly understood by those to whom they apply, but that virtue is far outweighed by other considerations. A draft law that is expressed so that everyone can immediately understand it, but does not reflect the intention of the legislator, is not be worth the paper it is written on. Accuracy is the overriding consideration. He also asserts that the plain language school is mistaken in assuming that meaning can be easily stated and easily understood, and that it is mistaken in the priority that it attaches to the convenience of the reader. The weight of empirical evidence, he claims, is to the contrary. Citing Wittgenstein’s theories of language, he argues that because of the intimate connection between one’s choice of language and the nature and quality of one’s thoughts, the best way to improve the quality of a draft is by focussing on the draftsman. Stark’s article drew a response from Martin Cutts and another from Joseph Kimble, an associate professor of law at the Thomas M. Cooley Law School in Lansing, Michigan. Both were dismissive. Cutts described it as "an attempt to debunk the idea of plain English in the law" and, later, as "a travesty of the position of pge exponents" [8] . Kimble quoted two statements from the end of the article, calling one "cavalier" and the other "insular" [9] . Neither addd the substance of Stark’s points. Law drafting is a serious business. Many practising legislative draftsmen will, I think, lean towards the view that Stark’s opinions carry the greater weight. If readability in the popular sense were the determining factor, the public would naturally have better options. The reason that law drafting is done by lawyers is that expertise in law is desirable. One reason that a specialised discipline emerged within the profession is that, given that premise, it calls for an ability to express laws in a way that will be understood not only by lawyers but also by those who wish to ply them, or who are subject to them. [10] In fact, Cutts’ thesis was not that a reader should be able to understand a law quickly, but that he should be able to do so easily, and reference to indices is one method of defining a thing. Cutts also drew attention to the need, for ease of understanding, to be concerned not only with the language used but also with the physical lay-out of a statute and its typography. Both of those other considerations are the business of any legal draftsman, the first as a matter of course and the second to the extent that he can be expected to contribute ideas towards the development of his office’s "house style". Intelligibility is an essential requirement for legislation, for two reasons. One, as the Right Honourable Lord Simon of Glaisdale said to the Statute Law Society, is: "It is an aspect of the Rule of Law. People who lider the Rule of Law are entitled to claim that that law shall be intelligible." [11] The other is that it increases the likelihood that the law will be obeyed. Even a dictator finds it convenient to be understood. However, the habits of expression that trouble the plain language school are not universal, and its views are not original. Drafting styles differ from place to place. The need for clarity of legislative expression was recognised and practised, in English speaking jurisdictions, even long before Sir Ernest Gower’s well-known book on plaige was published in 1948 [12] . From their earliest days, new colonies and countries had the opportunity and the motivation to write clear laws. There was an urgent need to establish a body of law and legislation was the obvious vehicle. No other source could compete with it in immediacy, generality or creativity. In those circumstances, legislative draftsmen enjoyed a double advantage. The medium afforded greater freedom of expression, and they were less constrained by the need to take into account a long, comprehensive and sophisticated tradition of case law. Around the Commonwealth - and it seems reasonable to infer that it was in direct consequence of these things - many large and small countries were soon distinguished by the standard of expression of their statutes. Canada is a pre-eminent example. The clarity of its legislation can be seen at once, by turning through a random selection of current laws. New Zealand has enjoyed a similar reputation. I was always given to understand that in the middle of the century, its laws were used as models at a distinguished American law faculty. Each country has produced a leading writer (Driedger himself, and Thornton) in what is a very small field of legal literature. Both have emphasised the importance of clarity. There are other long traditions of clear legislassion throughout the Commonwealth, exemplified by Alison Russell’s collection of colonial precedents. [13] The other reservation that practising draftsmen have about the current school is whether it is in some measure superficial and fashionable. Some, such as Stark, clearly have firm views about that. For others of us, it is more of a feeling, based on those things to which the movement does not seem to attach weight and on some of its own suggested solutions. For example, it does not dwell on the fact that laws must also be intelligible to those who enact or administer them, which is just as much of a consideration. It does not emphasise either the standard at which a law should be expressed. Statutes are state documents. They deal with matters of consequence. Some plain language proponents belittle this consideration, but how can the recognised standard of good written English be inappropriate? Anything less is patronising, and may also be dangerous. To insist on correct syntax, for example, is not in any meaningful sense at all to be guilty of grammatical obscurantism. A failure to do so may produce the wrong result and - in an adult society anyway - it may not be enough to expect the judiciary to ride purposively to the rescue. On a mature view, in the longer term, to treat laws too casually may turn out be a good deal less than "user friendly", however seductive that expression may seem at first blush. On the occasion Lord Simon gave the reason, from the recipients’ point of view, why laws should be clearly expressed, Richard Thomas also addressed the Society. He was the Legal Officer for the National Consumer Council. He ld them "High sounding language humiliates." [14] I do not think he was being fashionable. If anything, he appears to have anticipated the mood of the present times by a few years. I do think (to put it plainly) that he was laying it on a bit - and missing the point. Most people, confronted by official pomposity, would surely have been amused or angry, but in any case his is neither of the objections that really count. In some jurisdictions it has become the practice, as a matter of recent choice, to express a criminal offence by saying "a person must not ..........", rather than "no person shall .........". One reason for this it that most people, in ordinary speech, say "you must not ......" instead of "you shall not .....", which is fair comment. Another is that "shall" is capable of more than one meaning. Whether these are sufficient reasons for abandoning in the closing moments of this millenium a formula that has been with us for some time, and whether it really serves to clarify the meaning of a law, are another matter. t people, "thou shall not kill", in context is a statement that is well understood. [15] In recent years the activities of proponents of plain English have nevertheless induced a defensive reaction, not only in places in which their criticisms have force but also in those in which they do not. One line of defence is that accuracy (or precision) and clarity are sometimes incompatible, and in those circumstances clarity must give way. On this point there is a difference of opinion not only between critic and defender, but within the discipline itself. The Law Reform Commission of Victoria, Australia, in 1987, reviewing the language of statutes, concluded "In its true sense, precision is incompatible with a lack oty." [16] As has been seen, Stark has the same view. This is not to say that clarity is necessarily synonymous with simplicity or brevity. Another practising draftsman, Duncan Berry, has reminded us that despite the modern preference for shorter sentences, clarity is sometimes best achieved by taking a longer route. But, although a number of leading practitioners in the discipline believe otherwise, and do so on the strength of their considerable experience, it is difficult to see how a law that is not clear can be said to be accurate. Another line is that modern legislation is becoming increasingly complex. Thus, the argument runs, it is that much harder to achieve a desirable standard of expression. This is a comparative argument. One would need to be confident either that the Victorians - and the Georgians and even the Elizabethans - did not have the same high opinion of their own affairs or, if they did, that they were mistaken. What is thoroughly modern, at least in the emphasis that is put on it, is that complexity can justify a lack of clarity. Each of us has his own recollections: mine are that John Hobley and Garth Thornton in Hong Kong in the late nineteen-sixties, and Denzil Ward and Jack McVeagh soon afterwards (and for many years beforehand) in Wellington, would have given the argument short shrift. So, I am sure, would many others. A third is pressure of time. This may seem more persuasive. The conditions in which legislative draftsmen work vary considerably and some offices do so under intense pressure. For professional writers, however, it is a somewhat surprising explanation. Other writers must also cope with pressure. Journalists are an obvious example. No one has stricter deadlines. The fact that they do not underwrite the legal quality of their work is hardly a distinguishing feature for they have their own market, with its own demands, to satisfy. It is evident that constraints of time are not a justification for poor expression. Legislation is prepared in such conditions in Ottawa, Canberra and Wellington. It has been for years and there is reason for thinking that, in law drafting as much as in other disciplines, pressure is useful for quality. To the extent that laws do not fulfill expectations in the way in which they are written, we do perhaps make one rod for our own backs. The view is sometimes expressed in law drafting circles that the courts must be "driven" to a conclusion, and one of the older axioms in the discipline is Stephen’s famous observation that ". . . it is not enough to attain to a degree of precision which a person reading in good faith can understand; but it is necessary to attain, if possible, to a degree of precision which a person reading in bad faith cannot misunderstand. It is all the better if he caretend to misunderstand it." [17] The two considerations are connected. They suggest (the second as it has been adopted by legal draftsmen) a psychological need to go beyond the objective requirement for accuracy and guarantee the outcome in every case. Both lead to convoluted legislation. The first presumes that judges need to be forced to interpret a statute as the legislature intended, which is incorrect. The second is more curious. It is one thing to write a law so that an honest person will not misunderstand it and, in a country that subscribes to the Rule of Law, to give him the benefit of ambiguity. But a bad man, pretending? When you think about it, there’s a funny thing. Did a jurist as distinguished as Stephen really intend that his remarks should be taken quite so literally down the years? David Hull is an assistant law draftsman in Jersey. He has served as parliamentary counsel in New Zealand and as a legislative draftsman in Hong Kong, and has also drafted laws for Western Samoa and Gibraltar | 