The promise of plain language drafting.

• Author: Sullivan, Ruth

The purpose of drafting legislative texts in plain language is to enhance democracy and the rule of law by making legislation accessible to the people whose lives it affects. But plain language drafting has some potentially more radical implications, as it reveals and challenges assumptions underlying current approaches to statutory interpretation and to law generally.

The author surveys various plain language initiatives, highlighting problems encountered by the plain language drafter as well as techniques for achieving more direct communication of the legislative message. A central problem for plain language drafting is identifying the legislature's primary audience. The author shows that it is impossible to write for everyone. After examining different ways of responding to this problem, she argues that ordinarily the drafter should write for the most vulnerable group affected by the legislation to be drafted.

The author concludes that plain language drafting will not make it easy for members of the public to read and understand legislation. Its chief value lies rather in the message it sends to the courts and official interpreters of legislation, namely, that legislation should be interpreted from file perspective of its primary audience. Instead of relying on judicial notice of meaning and their own common sense, courts should receive evidence about the audience for which the legislation was written. Judicial interpretation should be informed by an understanding of the context in which the legislation actually operates.

Another virtue of plain language drafting is that it challenges some of the untenable assumptions underlying a positivist view of law, in particular, the idea that law exists in advance of its application because it consists of rules contained in texts. The techniques used by plain language drafters tend to detach the law from particular texts and to blur the conventional distinction between text and context, la this way, plain language drafting draws attention to the malleable character of texts and the make-it-up-as-you-go-along character of law.

La redaction de textes legislatifs en langage simple vise a proteger la democratie et l'etat de droit en rendant la legislation accessible a ceux qu'elle gouverne. Elle a cependant d'autres consequences plus fondamentales, notamment en ce qu'elle permet d'identifier et de remettre en question les postulats sousjacents aux principales approches de l'interpr&ation des lois et du droit en general.

L'auteure analyse divers projets de redaction en langage simple et indique les problemes qui leur sont lies ainsi que certains moyens permettant de communiquer le message legislatif d'une maniere plus directe. Il appert que le probleme essentiel qui se souleve dans la redaction en langage simple est l'identification du public principal puisque, comme le demontre l'auteure, il n'est pas possible de rediger pour tous les groupes sociaux. A la lumiere de l'etude de differentes solutions a cette difficulte, l'auteure suggere que le legislateur devrait rediger en fonction du groupe le plus vulnerable que la loi en question peut affecter.

L'auteure conclut que la redaction en langage simple ne rendra pas en soi la lecture et la comprehension de la legislation simples. Le principal avantage de ce type de redaction se situe donc au niveau du message communique aux tribunaux et aux autres organes devant interpreter la loi : cette derniere devrait etre interpretee a partir du point de vue de son principal public. Plutot que de s'appuyer sur la connaissance judiciaire et leur propre raison, les juges devraient accepter la preuve du type de public auquel la loi etait destinee, de maniere a ce que l'intelpretation judiciaire se base sur une comprehension du veritable contexte dans lequel la legislation agit.

La redaction en langage simple presente egalement l'avantage de remettre en question certains postulats de la conception positiviste du droit, notamment l'idee selon laquelle le droit preexiste son application puisqu'il est constitue de normes contenues dans des textes. Les techniques utilisees pour la redaction en langage simple separent le droit de textes particuliers et estompent la distinction classique entre le texte et le contexte. De cette facon, la redaction en langage simple met en evidence le caractere malleable des textes et la nature foncierement ad hoc du droit.

Introduction I. Evolving Theory and Practice A. Direct Communication 1. Access 2. Understanding 3. Personalization B. Audience Assessment C. Reliance on Experts from Other Disciplines D. User Testing II. Writing for Divergent Audiences A. Writing for Everyone B. Writing for the Audience Targeted by Parliament C. Writing for the Least Experienced D. Writing for Actual Readers E. Conclusion III. The Impact of Plain Language Drafting A. The Plain Language Message B. The Death of Positivism? C. Remaining Issues Conclusion Introduction

In nearly all jurisdictions, the role of legislative drafting in the creation and administration of law receives scant attention from legal educators and the practising bar. This neglect is a mistake, in my view. Given current conceptions of democracy and the rule of law, and given the way those conceptions are put into practice in parliamentary democracies like Canada, the work that drafters do warrants careful scrutiny.

The primary task of drafters is to embody proposed legislation in a fixed form--to "in-text" future law, in effect. Once established, the text is tabled in the legislature, where the elected representatives of the people decide whether to enact it, in whole or in part, with or without amendment. If this exercise in democracy is to be more than an empty formality, it is obvious that the representatives who vote for or against a particular proposal must understand what is being proposed.

Once a text is enacted, it is published in an official publication like the Canada Gazette. Publication is meant to ensure that members of the public, who are deemed to know the law, have access to the statute book and can come to know the law in fact as well as legal fiction. In keeping with the rule of law, it ensures that citizens have a means to identify their rights and obligations as set out in the enactments that apply to them. In keeping with democracy, it ensures that citizens are able to understand and assess the output of their elected representatives.

The rule of law and democracy also require that those who administer the law apply it equally to everyone, exactly as enacted, so as to prevent discriminatory effects or unauthorized outcomes. Law that has been appropriately "in-texted" facilitates equal, accurate application because the rules to be enforced and the powers available to enforce them are set out in a fixed form, which is accessible to all.

As this brief sketch suggests, democracy and rule of law as currently conceived in Canada presuppose the capacity of a legislative text to embody the law in a fixed form and to communicate the same law to everyone the parliamentarians who will enact the law, the citizens whose rights and interests will be affected by it, and the officials who will enforce it. The challenge of creating texts that fulfil these requirements falls to the legislative drafter.

Historically, drafters have focused on the first challenge, that of "in-texting" the law, and have paid little attention to the challenge of communication. The result is a stature book that declares the law in thousands of carefully written pages that are incomprehensible to all but a handful of legal insiders. This insider group includes judges and lawyers, as well as professionals, such as accountants, who deal with certain areas of the statute book on a regular basis. It may also include bureaucrats who administer statute-based schemes, especially those who prepare secondary materials that attempt to explain "their" legislation to the general public. Insiders become familiar with portions of the statute book and they may become adept readers of legislation in general. To the rest of the public, however, the statute book is a walled fortress, bristling with bizarre weaponry. Who would want to go there?

Much legislation is drafted in long, convoluted sentences and relies on obscure jargon. But this is the least of the public's problems. The first challenge faced by would-be users of legislation is getting hold of an accurate and up-to-date copy of the legislation, including not only the act, but also regulations and documents incorporated by reference. (2) The second challenge is to locate the parts of the legislation that are relevant. Users must then read those parts and make sense of them, a challenge that takes more than an ability to decipher badly written prose. Finally, and most importantly, users must appreciate the import of what they have read in terms of their personal circumstances and interests.

Given these multiple challenges, it is not surprising that access to law for most people is impossible without the assistance of lawyers or other professionals. These professionals not only locate the law and explain it, but also apply it in a way that benefits their clients to the greatest possible extent. They are both expected and obliged to use their knowledge and skills to develop interpretations that favour their client's position. For those who can afford a professional to look after their needs and interests, dealing with the statute book is not a problem: the professional acts as intermediary between the client and the text. For the test of the public, however, the statute book remains an intimidating and impenetrable fortress.

Most supporters of plain language drafting find this arrangement unacceptable. They believe that legislation should speak directly, without the need for intermediaries, to the very people whose lives it affects. This obviously is a worthy ambition, but it may not be a realistic one. In this paper, I...