Publishing side by side plain English versions of laws doesn’t make heaps of sense.
First, courts will, of course, now have to look at both versions to interpret ambiguities. The practice of drafters of Uniform Laws in the U.S. and tax committee report drafters in the U.S. to provide a commentary rather than a translation would frequently be more helpful. Will nuances of the original be disfavored in light of the fact that they aren’t reflected in the plain English version? For example, in Colorado, the state supreme court looked to a summary of a ballot initiative for voters as authoritative in interpreting it, even though the actual text of the measure summarized was less than clear on the point (whether redistricting could occur more than once a decade).
Second, a great deal of plain English is simply a remedy for bad statutory drafting. For example, a classic plain English drafting technique is to use a defined term rather than a run on clause.
Of course, the reason run on clauses are used has a good deal to do with the common law v. civil law legal system. Common law judges historically have dealt with statutes drafted in small chunks, rather than logically drafted codes, so it is common for common law judges to quote statutory sections out of context without referencing the relevant definitions. Sometimes even advocates fall into the trap of not checking definitions. Run on clauses are a defense against that kind of judging.
In contrast, when you are dealing with a civil code, and judges are in the habit of referring to statutory definitions rather than dictionaries, a legislator can use a defined term and be comfortable that the definition will be utilized, and as a result, can use more graceful statutory drafting which is easier to read.
Thanks very much for your comments. I must admit I used this article as a hook for a few points I’d been mulling over since the recent conference.
But to get down to the article – I was rather surprised by it, and also by the suggestion that a lot of legislation is likely to be in this form now (this was just the statement of Harriet Harman, however). HH is a lawyer, of course, but did you notice that the article was written by a political, not legal affairs, correspondent? It contained some odd remarks. And there was an example of English we are presumably supposed to be regarded as difficult, from what is now the Equality Act, the main disambiguation of the plain English rephrasing being the reference to religion, because section 49 is in the ‘religion and belief’ section.
I am curious as to the introductory wording to the coroner bill and will look out for it next Monday. Will it state that both halves have equal effect?
I am not sure about your argument that run on clauses are used in order to discipline judges. After all, they are relatively common in the German Civil Code. So why would they not have been normal in English legislation apart from any such considerations?
Publishing side by side plain English versions of laws doesn’t make heaps of sense.
First, courts will, of course, now have to look at both versions to interpret ambiguities. The practice of drafters of Uniform Laws in the U.S. and tax committee report drafters in the U.S. to provide a commentary rather than a translation would frequently be more helpful. Will nuances of the original be disfavored in light of the fact that they aren’t reflected in the plain English version? For example, in Colorado, the state supreme court looked to a summary of a ballot initiative for voters as authoritative in interpreting it, even though the actual text of the measure summarized was less than clear on the point (whether redistricting could occur more than once a decade).
Second, a great deal of plain English is simply a remedy for bad statutory drafting. For example, a classic plain English drafting technique is to use a defined term rather than a run on clause.
Of course, the reason run on clauses are used has a good deal to do with the common law v. civil law legal system. Common law judges historically have dealt with statutes drafted in small chunks, rather than logically drafted codes, so it is common for common law judges to quote statutory sections out of context without referencing the relevant definitions. Sometimes even advocates fall into the trap of not checking definitions. Run on clauses are a defense against that kind of judging.
In contrast, when you are dealing with a civil code, and judges are in the habit of referring to statutory definitions rather than dictionaries, a legislator can use a defined term and be comfortable that the definition will be utilized, and as a result, can use more graceful statutory drafting which is easier to read.
Thanks very much for your comments. I must admit I used this article as a hook for a few points I’d been mulling over since the recent conference.
But to get down to the article – I was rather surprised by it, and also by the suggestion that a lot of legislation is likely to be in this form now (this was just the statement of Harriet Harman, however). HH is a lawyer, of course, but did you notice that the article was written by a political, not legal affairs, correspondent? It contained some odd remarks. And there was an example of English we are presumably supposed to be regarded as difficult, from what is now the Equality Act, the main disambiguation of the plain English rephrasing being the reference to religion, because section 49 is in the ‘religion and belief’ section.
I am curious as to the introductory wording to the coroner bill and will look out for it next Monday. Will it state that both halves have equal effect?
I am not sure about your argument that run on clauses are used in order to discipline judges. After all, they are relatively common in the German Civil Code. So why would they not have been normal in English legislation apart from any such considerations?