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Commonwealth Law Bulletin, 2013 Routledge
Vol. 39, No. 3, 435-442, http://dx.doi.org/10.1080/03050718.2013.822312 Taylor&Francis
Group

Drafting and plain language

Augustin Mico*

Rwanda Parliament/Chamberof Deputies, PO Box 352, Kigali, Rwanda

Producing law which is clear and easily accessible to the reader is a priority
for the drafter. Thus, the use of plain language is one key issue which can
help to improve clarity in drafting law. It can make the law much easier to
understand and can maintain good standards. At the level of structure, plain
language drafters try to organise laws in a clear and meaningful way. If
everybody decides to use language in any way he or she likes, it would be
impossible to meet the requirements of every listener and reader.

Introduction
My hypothesis is as follows: the use of plain language in drafting legislation is
essential to achieve clarity. The methodology followed to prove my hypothesis is
that the use of plain language in drafting legislation is essential to achieve clarity
the in way that it helps to avoid long and complicated sentences, it uses shorter
and well-constructed sentences by retaining only that which is essential, it orga-
nises legislative and legal documents in logical manner and it uses words and
expressions that are familiar to everyone. The preferred approach is to focus
more deeply on the use of plain language in improving clarity and how plain
language is used and its benefits. In addition, I will use arguments put forward
by different legal experts and legal professionals.

Plain language and clarity in drafting

Plain language advocates have never been unanimous on the definition of plain
language' and clarity. 2 Plain language is defined in different ways, but for the
purpose of my work it is a consistency with modem attempts to write legislation
clearly. 3 It is just the practice of writing English, or any other language, in a sim-
ple and clear style.4 Clarity can be defined as the 'state or quality of being clear
and easily perceived or understood. Clarity depends on the proper selection of

*Email: micog2009@yahoo.fr
'Dr Janice Redish, 'Defining Plain English' (January 1997) (38) Clarity 30.
2
Jack Stark, 'Should the Main Goal of Statutory Drafting Be Accuracy or Clarity?'
(1994) 15(3) Stat LR 207.
3
Anthony Watson Brown, 'Defining Plain English as an Aid to Legal Drafting' (2009) 30
(2) Stat LR 91.
4Mich6le M Asprey, Plain Language for Lawyers (3rd edn The Federation Press,
Annandale 2003) 11.

@ 2013 Commonwealth Secretariat

436 A. Mico

words, on their arrangement and on the construction of sentences. Clarity in the

language of the law enhances understanding and transparency of legislation'. 5
Plain language combines content and format to create documents that can be
understood by anybody. It is the language of the law and a bridge between the
audience and the legislation. It is an approach which helps readers to understand
what they are reading. It is language which is not complicated, but is clear and
effective 6 ; it has been used with success to transform complex thoughts into a
format that is accessible by all. Plain language is intended to be just and precise
in comparison with traditional drafting 8 and at the level of syntax it creates sen-
tences that are easy for the average person to understand.9
Plain language will avoid legislative sentences which are very long, because
readers are not able to understand the meaning from what they have just read.
Such sentences contain ideas that readers can understand when they reach the
end of the sentence, and relate to the ideas that the sentence contains. 10 Plain
language consists of only one syllable words and one clause sentences; it is not
simplified or reduced English, it is the opposite of obscure language in that it
seeks to have the language and the message understood at the first reading. It is
clear, straightforward language for an audience.'
Applying plain language to legal writing can create a revolution in the way
documents, forms, regulations and even statutes are drafted. This approach to
legal writing creates documents that are written in language that is appropriate
for the needs of the reader, and the purpose of the document is designed so that
information can be easily located, understood at the first reading and is legally
binding. Drafting should be a focus: technical knowledge of a special kind that
unites many minds to produce a unity of thought ennunciated as a command or
communication.12
Drafting in plain language does not require the use of a specialised language,
but uses the same language as in other kinds of formal writing for the purpose
of achieving clarity. Most legislative sentences are addressed directly to particular
persons or groups of persons, and this needs to be done in a clear and consistent
way.13 The whole purpose is to take what appears long and complicated and

5
Helen Xanthaki, 'On Transferability of Legislative Solutions: The Functionality Test' in
Constantin Stefanou and Helen Xanthaki (eds), Drafting Legislation:A Modern Approach
(Ashgate, Aldershot 2008) 1.
6
Peter Butt and Richard Castle, Modern Legal Drafting: A Guide to Using Clearer Lan-
guage (2nd edn Cambridge University Press, Cambridge 2006) 113.
7
Gail S Dykstra, 'Plain Language, Legal Documents and Forms' (September 1988) 2(2)
The
8
Loophole 6.
Ian Turnbull, 'Plain Language and Drafting in General Principles' (July 1995) The
Loophole 29.
9
J Paul Salembier, Legal and Legislative Drafting (LexisNexis, Canada 2009) 409.
10Duncan Berry, 'Reducing The Complexity of Legislative Sentences' (January 2009) (1)
The Loophole 37.
"Robert D Eagleson, 'Efficiency in Legal Drafting' (October 1989) 2(5), The Loophole
19.
12VCRAC Crabbe, 'The Ethics of Legislative Drafting' (2010) 36(1) CL Bull, Routledge
11.
3
1 Roger Rose, 'The Language of the Law: How do we Need to Use Language in Drafting
Legislation?' (2011) (3) The Loophole 4.
 Commonwealth Law Bulletin 437

reduce it to what is concise and clear.14 Plain language is not rigid; one of its
advantages is that it is flexible for all.15 Modem drafting contract and form
design techniques all need the use of plain language, and the readers always take
16
priority in it.
Clarity is one of the requirements for accessibility of laws.1 7 It is better to
abandon the use of Latin and jargon because the average reader will not under-
stand them and they only have value when used between professionals. Jargon
may be acceptable in a document that a lawyer drafts only for another lawyer.' 8
Clarity of expression is more likely to produce clarity of thoughtl 9 and is cor-
rectly used to transmit the meaning for rapid comprehension. 20 For instance, it is
not easy to read and understand a sentence which has 232 words such as Section 3
(1) of the Charitable Trusts Act 1957.21 For a long sentence like this, the use of
the tool of plain language for improving clarity is necessary. There is a need to
break this long sentence into a number of paragraphs to make it easy to read and
understand.
Plain language is clear and uses straightforward expressions and only that
which is necessary. It is language that avoids obscurity, extensive vocabulary and
complicated sentences. It is neither baby talk nor a simplified version of lan-
guage. Plain words are eternally fresh and fit. More than that, they are capable
of great power and dignity.22 The use of plain English will give clear state-
ments23 in a manner which makes it as easy as possible for people to understand
what it is intended.24
Principles that govern drafting require that a legislative counsel ensures clar-
ity and avoids ambiguity, archaic language, complex grammatical structures, long
sentences and punctuation that make the sentence incomprehensible. Clarity is
preferred at all times, even if this may result in long sentences. 25 Plain language
is not only for drafters, as it helps people know and appreciate the message of
law and attempts to provide access to information on the law through legal aid,
public legal education activities, government information services, advocacy
services and volunteer efforts.26

14Robert J Martineau and Michael B Salerno, Legal, Legislative, and Rule Drafting in
Plain English (Thomson/West, 2005) 11.
5
lbid., 12.
' 6Dykstra (n 7) 8.
New Zealand Law Commission, Presentation of New Zealand Statute Law (Wellington,
2008) 42.
'8Mark Adler, 'In Support of Plain Law: An Answer to Francis Bennion' (2008) (1) The
Loophole 26.
2Martineau and Salerno (n 14) 10.
2
oWatson Brown (n 3) 207.
21
JF Burrows and RI Carter, Statute Law in New Zealand (4th edn LexisNexis, 2009)
107.
22
Adler (n 18) 28.
23
Watson Brown (n 3) 85.
24Daniel Greenberg, 'The Three Myths of Plain English Drafting' (Special Issue, 2011)
The Loophole 107.
25
Fredrick Ruhindi, 'The Need for Simplicity in Legislation and Challenges in its
Attainment' (2009) The Loophole 14.
26
Adler (n 22) 24.
438 A. Mico

Plain English has brought the general public back into the line of the writer,
reminding us again of the ethical dimension of writing. Documents are not fair if
27
they cannot be understood by stakeholders who have to use them. When
claiming that your document is in plain language, your intended audience must
be able to find that they understand it to fulfil their purpose. When the writer
decides to use an uncommon technical word, it is because the reader is familiar
with it and there is no substitute for that word, or the word is the shorter version
of a complicated one, and if the reader is not a familiar of this word, it will be
explained in plain language. 28

Principles, benefits and critics of plain language

Principles of plain language
Many authors have written about principles, techniques, rules and skills of plain
language. 'Mellinkoff lists seven rules; Wydick has eight; Redish recommends
six steps; Goldfarb and Raymond describe ten rules to follow'; Robert Dick
details 33 rules; the Australian Commonwealth drafting adopts four style strate-
gies. 2 9 The UK Plain Language Commission lists 15 tips on writing plain Eng-
lish and factors for evaluating plain language, 30 and many other writers have
written on plain language. The rules may vary from expert to expert but the prin-
ciple of using plain language stays the same for many authors. 31 However,
according to Anthony Watson Brown, many modem writers perceive plain Eng-
lish or plain language principles as follows: 'clear and simple; appropriate to
audience; direct and personal; favours informal language when appropriate;
draws on common everyday language; accessible to a wide audience; explains
technical words in simple language; attempts to interest readers and hold their
attention; relies heavily on simple sentence structures; avoids passive voice;
respectful of the reader'. 32
Some authors have proposed to create a plain language manual and comment-
ing features in Microsoft Word as tools and techniques that are accurate and well
organised and written to help in the use of plain language. Some techniques can
enhance communication and contribute to the development of a clear, easy and
understandable language. 33 Employing plain language features that do not com-
promise precision will help all classes of reader. 34 Even if all experts had not
unanimously agreed on application of plain language principles, many of them
agree on the use of plain language. If we consider that there is an observation
that plain language can help few citizens, or if only one person can be helped by

27
Dykstra (n 16) 6.
28
Asprey (n 4) 14.
29
Tumbull (n 8) 28.
30
Neil James, 'Setting the Standards: Some Steps Towards a Plain Language Profession'
2008) (59) Clarity 11.
'Gail S. Dykstra, 'Plain Language, Legal Documents and Forms' (1988) 2(2) The
Loophole 8.
32
Watson Brown (n 23) 91.
33
Nad Rosenberg, 'Tools and Techniques for Working with Matter Experts to Create Plain
Language Manuals' (2008) (59) Clarity 58.
34
Salembier (n 9) 491.
 Commonwealth Law Bulletin 439
its use why shouldn't it be used? Fortunately, results show that plain language is
necessary for many users of law: lawyers, judges, political officials and lay per-
sons.
In all countries, there is a principle that law must be accessible to the public,
and according to this principle, there is no excuse for ignorance of the law. If
the law is not available and accessible to citizens, the principle of accessibility
will not be achieved. Governments and states have an interest in the law's acces-
sibility and effectiveness to the entire population, and it cannot happen if the
public do not know or do not understand the law. There is a belief that law was
reserved only to lawyers and judges but today laws are consulted and used by a
large number of people who are not lawyers and have no legal training.3 5 It is
for that purpose that laws must be clear and easy to read and understand by all
users. By using the tool of plain language, law gains clarity, which will help citi-
zens understand the law.

Benefits of plain language

Benefits from plain language are so many: it makes information more accessible,
readers are more likely to understand why and how decision are made, there is a
huge impact on the quality of working life on all levels and more readers can
find out what rights they have. 36 Many plain language promoters have indicated
that lawyers also benefit from plain language in that it makes their documents
more effective, and in particular saves them time, money and mistakes. The con-
tribution of the plain language movement has been of great significance. 37
Plain language will contribute to removing existing complaints in different
sectors of law namely: legislators, judges, lawyers, teachers and writers of law
and it will help to remove complications, darkness and ambiguities in the lan-
guage style of Acts. 38
Many organisations such as the Society of Legal Scholars, the Statute Law
Society and Clarity are promoting good examples of clear and simple styles of
plain language. In the UK, many institutions, in the both the public and the pri-
vate sectors, instruct experts to draft or redraft codes, regulations and rules in
plain language. Courts, tribunals, panels and committees composed totally or
mainly of non-lawyers demonstrate the wish and demand for defenders to present
their cases simply and clearly in plain language. 39
The use of plain language will help people in different institutions and com-
panies who refer to legislation in their jobs. Every day lay citizens refer to the
law to find responses to challenges that affect them in their personal lives, and
internal problems can lead them to consult legislation. 40 There is a tendency to
think that the law is a very complicated domain that should be only aimed at for
people who have studied law. When an Act is not understood by the majority of
35
Adler (n 18) 22.
36
Ruth Baldwin, 'Plain Language for Municipalities: Tools and Efforts' (2008) (59) Clar-
i Adtler (n 18) 19.
38
Alec Samuels, 'Plain Language in the UK' (2006) (56) Clarity 6.
39
40
Ibid.
Adler (n 18) 22.
440 A. Mico

people it is intended for, the use of plain English will enhance clarity and
remove that obscurity.4 1

Critics of plain language

The biggest problem about the utilisation of plain language in legislative drafting
is that it works.4 2 The truth is that for several reasons, a law can never be written
in a way that makes it understandable to a lay-reader and the more it uses plain
English the more danger that the lay-reader will be misled into believing that he
or she has understood more of it than is actually the case.43 Many plain language
campaigners fail to understand that the goal of a piece of a bill consists in
explaining the Act. The fact that legal texts cannot be easily understood by those
most affected by them does not necessary lead to a growing ignorance of the
law, which can be avoided by ensuring that adequate explanations of the law are
available to the public by all means. The plain language movement, through
the illusory aim of having law that is directly clear to the lawyer in other words,
is fit for everybody. 4 5
There is no objective standard of plain language; it has been set by the flow
of fashion in the natural use of language outside of the legislative context. It is
noticeable that generally the tolerance of readers for sentence length has dimin-
ished greatly over the years. 46 It is not that we have discovered a new system of
writing in short sentences; it is simply that what amounts to short or long by nor-
mal literary standards has changed.4 7
Another mistake made by the plain language movement is that a legal text,
even if it has become an Act, is far from being the whole story. Each law is
incomplete in itself; it has to be considered in context. This means that no legal
text stands alone, it always needs to be read alongside many other laws, and this
cannot be achieved by a lay person who does not have a background of law.4 8
Even if plain language proponents complain that traditional legal language lacks
style, it depends on what they mean by style. One view is that so-called plain
language lacks style and leaming.4 9
Another problem of plain language campaigners is that they are ignoring the
use of legal terms, for example hereby and thereby, for such terms have an impor-
tant function in law; more conversational terms should be used in statutes.50 Plain
language causes mistakes in the methodology in the drafting of legal texts and
has attracted judicial criticism. The Federal Court of Australia criticised the
redrafting in clear English of the Social Security Act 1991 (Cth), which contains

41
Adler (n 18) 25.
42
Greenberg (n 24) 105.
43Ibid.
44Francis Bennion, 'Confusion of Plain Language Law' (2010) 19(1) JCLA 61.
45Ibid., 62.
46Greenberg (n 24) 104.
47
48
Ibid.
Francis Bennion, 'Confusion Over Plain Language Law' <http:www.francisbennion.
com/topic/plainlanguagelaw.htm> accessed 15 April 2012.
49Ibid.
50
Francis Bennion, 'Confusion of Plain Language Law' (2010) 19(1) JCLA 63.
 Commonwealth Law Bulletin 441

almost 1400 sections. The court stated that the Act is two or three times longer
and is not easier to read. In another Australian case, the appellate court judge crit-
icised the plain language of the Corporation Law as the language of the popular
songs. A passage that is plain to the average reader with a wide vocabulary may
be opaque to the average reader with a narrow one.

Conclusion
Among many other techniques of enhancing clarity 52 in drafting law, the use of
plain language is one which can help to improve clarity in drafting law. Plain
language and clarity undoubtedly make the law simple, clear and precise, and
this drafting should be the fundamental style in all laws. It can make the law
much easier to understand and conduct in a proper manner; it can maintain good
standards of clarity and precision. 53 Plain language tries to create a sentence
which is very easy to understand for a citizen of medium knowledge. According
to specialists, such legal formulation tends to be short, emphasis is on verbs
rather than nouns, the active rather than the passive voice, and positive rather
than negative sentences to state the intended law.
At the level of structure, plain language drafters try to organise statutes in a
clear and meaningful way. There is chronological order, logical order, order of
importance or some other principle or combination of principles that is likely to
make sense to the reader. The structure of the law is clear through the use of
headings and sub-headings, marginal notes, transitions, tables of contents, rele-
vancy and other similar methods.
For the purpose of clarity, if there is no clear line showing how drafters can
use plain language which leads to clarity it could lead to chaos if everybody
decides to use language in any way he or she likes, and it would be impossible
to measure used language to meet the requirements of every listener and reader. 54
For this reason, the use of plain language is strongly needed in drafting legisla-
tion. In particular, it is in this line that is advisable for institutions that are deal-
ing most with laws, to take the heavy task of elaborating a manual of plain
language that will help people and organisations.
Governments need to adopt guidelines and enact laws that accept and regu-
late the use of plain language. Even if plain language is broad and many writers
have written on it, still it needs to get a clear line of applicability. There is a
need for harmonisation of drafting techniques because those that exist are scat-
tered. In order to facilitate drafting, users and communication at all levels to get
the intent and the law. Laws that are clear and easy to understand are essential
part of an accessible justice system. Clearly written laws can be better under-
stood, respected and implemented.

51
Bennion (n 50) 65.
52
GC Thornton, Legislative Drafting (4th edn Butterworths, 196) 52.
53
Turnbull (n 8) 35.
54
lChris
Peter, 'A Rant in Favour of Employment and Against Relativism: The Impact of
Grammar,
55
Punctuation and Usage on Clarity' (2007) (57) Clarity 18.
Developing Clearer Laws <http:www.ag.gov.au/clearerlaws> accessed 12 April 2012.
442 A. Mico

Plain language needs to be developed and used even in other official docu-
ments.56 As Daniel Greenberg said, researches on plain language 'should con-
tinue the search for ways of presenting law in a manner that makes it as easy as
possible for [all users] to understand what it is to mean'. However, research
should be conducted in a scientific way so that plain language reaches the level
where different experts agree on the use of it.

Notes on contributor
Augustin Mico is legislative drafter and adviser at the Rwanda Parliament/Chamber of
Deputies.

56
Anne-Marie Hasselrot, 'What's on in Plain Swedish?' (2006) 55 Clarity 26.