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Plain Language Act

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  • 1. A draft for public discussion of a PLAIN LANGUAGE ACT by David C. Elliott(1) on instructions from the people of Canada April 1992
  • 2. PLAIN LANGUAGE ACT Contents Speaking notes in favour of legislation............................................................................1 Proposed Plain Language Act..........................................................................................4 Purpose of this Act Plain language in legal documents Obligation for creating plain language documents The cost of using gobbledygook Legal liability and defence Additional court power Declarations of non-compliance Agreements cannot prevent this Act applying Crown must comply with the Act Application of the Act Definitions Repeal of the Act Coming into force Schedule Gobbledygook fee scale...................................................................................................10 Gobbledygook list Adding gobbledygook to the list
  • 3. David Elliott's speaking notes for the public forum on legislating plain language, Vancouver, B.C. 1. My argument is simple. We can improve legal, business, and government communication by voluntary efforts; but the fact is we have not. 2. What we have created is information anxiety. Richard Wurman described this as: the black hole between data and knowledge. It happens when information doesn't tell us what we want or need to know. 3. For me the issue is not whether a problem exists - that is beyond doubt - the issue is how are we going to tackle it. 4. The purpose of laws was stated by the Lord Chancellor in England. He said in 1530 that All laws are promulgated to this end, that every person may know their duty. 300 years later, philosopher and law reformer Jeremy Bentham described legal writing as longwinded, redundant, obscure and over complex. And just a few years ago Canadian Robert Dick described legal writing as word smog. Perhaps one of the kinder things that can be said of it. 5. Until we, as a society, get serious about the absolute necessity for clear communication of business, government, and legal information little real progress will be made. 6. So how do we get serious? 7. I admit I did not favour legislating the use of plain language when I first thought about it. Who needs more law, if its a good idea surely it will happen anyway, legislating plain language smacks of red tape, language police, interference with private contractual arrangements, and so on. But the plain fact of the matter is that our style, our thinking, our training, our knowledge is so entrenched - so bound up in precedent - that without a collective jolt to the system there will be no significant or sustained change.
  • 4. 8. How can change best be achieved? It could, in part, happen as a result of government initiatives. A majority of governments in Canada now have or in the past decade have had some form of plain language program. Apart from Alberta's wide ranging initiative,(2) most are limited in scope. Government programs are only as good as the commitment of the Government of the day, even of the Minister of the day, and the dedication, resources and ability of employees engaged in the program. It might get off to a good start - it might do well for a few years - but there is no assurance it will survive an election, a cabinet shuffle, a budget squeeze, or loss of key personnel in the program. While government programs are to be applauded and encouraged they do not provide the security needed for ongoing sustained commitment. 9. Leave it to business Another lawyer, or a banker, or an insurance company representative, would say business is already engaged in plain language programs and has been for 30 years. For a few businesses that is true - a few of their documents are in good shape. But if business as a whole was really committed, their documents would have all been revised in the last 20 years. And if businesses already have plain language programs they need have no fear of legislation. But one look at most business documents shows how believable their plain language claims are. 10. The lawyers Who would leave any writing project to a lawyer? I do not find a great deal of resistance by lawyers to the concept of clear communication. Most seem genuinely surprised, and a bit hurt, to find their documents are not considered models of clarity. The problem with the law and lawyers generally is inertia and precedent. To rewrite their precedents is an appalling thought to most lawyers. It would be time consuming, thought consuming, and who could they charge for doing the work? Lawyers rarely write anything original - their first reaction is to look for a precedent - that is not an attitude conducive to improving legal documents. What do lawyers respond to? Law. Lets make one to give them the incentive - the imperative - to act. 2
  • 5. 11. The courts could force a change in documents. They could develop a legal approach which said in effect that 1. there is an obligation on business to provide understandable documents; 2. there is an obligation on lawyers to provide understandable legal advice; 3. there is an obligation on law makers to write law that is as understandable as the subject matter allows. There are elements of a judicial approach emerging. But this will be an uneven development - even assuming it develops at all. Better to legislate the policy and allow the courts to support it as a matter of policy and law. The courts are concerned with improving legal writing. As recently as 1595 an English Chancellor made an example of the author of a 120 page document. He was ordered to cut a hole in it and parade around with the document about his neck. That lesson did not stick. *** And so I propose a plain language law - not one just for legislation as Ian Waddell, the Federal Member of Parliament, proposed in 1992 - but a comprehensive law for all legal documents, one designed to change attitudes to official writing. The strength of this approach is the "shock effect" the law will have and the support it will give to plain language programs. It will force people to think about what they are writing and how they are writing it. It will force writers to think about their readers. What a radical change - to think about whether our readers will understand what we write. The standard for writing I propose is reasonable and attainable. It recognizes that some subjects deal with intrinsically difficult matters. Difficult concepts remain difficult - but there is no reason why the writing should make the concept more difficult. The law will be self policing. No language police, no extra administrative cost for the law. I am confident that the additional start up costs of improving the language will not, in the long term, cause significant costs to business, government or the law - indeed in many cases the use of plain language will reduce costs, reading time, staff training time, answering questions and so on, as Joe Kimble has demonstrated. Plain language principles would become part of the norm in developing written documents, lawyers would get training in writing during law school and in skills training after qualification - they would become aware of the research about difficulties people 3
  • 6. have reading legal text - their consciousness would be raised and plain language would become part of the fabric of legal practice. The goal then is to achieve what Janice Reddish says has been achieved in some states in the United States: The plain English laws ... have served their purpose not by sending people to court over incomprehensible documents, but by being catalysts for change And anyway, to borrow from the 1992 advertisement for 7-Up It's cool to be clear PLAIN LANGUAGE ACT WE, THE PEOPLE OF CANADA, (3) MAKE THIS LAW: 1 Purpose of this Act The purpose(4) of this law is to improve the language and design of legal documents by (a) changing attitudes and approaches to writing legal documents so that the documents communicate their message as clearly as possible; (b) putting the obligation for clear communication on the writer or person responsible for the legal document; (c) imposing legal consequences if there is not a genuine attempt to communicate clearly; (d) supporting the research and services provided by the Plain Language Institute(5) in improving business, government, and legal communication. 4
  • 7. 2 What legal documents the Act applies to (1) This law applies to (a) Acts, regulations, and municipal bylaws, (b) agreements, (c) wills prepared by one person for another, (d) forms containing a certification, declaration, undertaking, or affirmation, or forms that are intended to create a legal relationship, and (e) every other document that is intended to create a legal relationship. (2) This law does not apply to (6) (a) a particular document or class of documents exempted from this law by regulation of the [Governor General] [Lieutenant Governor] [Commissioner] in Council, or (b) court judgements, arbitration awards, or other decisions having legal effect. 3 Plain language in legal documents (1) Legal documents must (a) be written in as understandable language as the subject matter allows, and (b) be designed in a way that helps readers understand the document. (2) The design of a document includes attending to organization, layout and typography. 4 Obligation for creating plain language documents (1) The obligation to comply with this law is as follows: (a) for Acts, the obligation is on the Crown; 5
  • 8. (b) for regulations, the obligation is on the Minister, person, or entity making the regulation; (c) for municipal bylaws, the obligation is on the municipality making the bylaw; (d) for other legal documents, the obligation is on (i) the person who writes it or is primarily responsible for its contents; (ii) the corporation, government, or entity that uses the document or proposes its use; (iii) the person who publishes the document or who offers it for sale. (2) When 2 or more persons, governments, or entities are obliged to comply with this law, the obligation is joint and individual. 5 The cost of using gobbledygook (1) Those persons, governments, and entities that are obliged to comply with this law must pay to the Plain Language Institute the fees set out in the Schedule.(7) (2) The fees payable are a debt due to the Institute and can be collected by legal action for debt if they are not paid voluntarily. 6 Legal liability and defence (1) A person, government, or entity that does not comply with this law is liable for any loss sustained by another person because of that non-compliance. (2) It is a defence if the defendant can show that (a) reasonable efforts were made to comply and maintain compliance with this law and that, when appropriate, the results of those efforts were used in the legal document, or (b) the language and design of the document in question cannot be significantly improved. 6
  • 9. 7 Additional court powers (1) In addition to or in substitution for any other remedy a court can impose, the court may (a) order a defendant who is responsible for an Act, regulation, or bylaw to review it with a view to rewriting or redesigning it; (b) for legal documents other than Acts, regulations, and bylaws; (i) order a defendant to rewrite or redesign it; (ii) order a defendant to stop using, publishing, or selling it; (iii) order a person to take courses or training to improve their knowledge of written communication or document design, or both; (iv) order a person to provide community service explaining complicated texts to the public, rewriting legal documents in plain language, or providing another service to the public. (2) An order of the court may be made subject to conditions. 8 Declarations of non-compliance A not-for-profit corporation may bring an action for a declaration that a legal document does not comply with this law and, in addition to the declaration, may ask for additional remedies that a Court may impose under section 7.(8) 9 Agreements cannot prevent this Act applying An agreement that tries to limit or prevent this law from applying to a legal document is against public policy and of no effect. 7
  • 10. 10 Crown must comply with the Act This law binds the Crown. 11 Application of the Act This law applies to legal documents created after the date this law comes into force. 12 Definitions In this law "design" includes the legibility and layout of the document; "legal documents" means a document to which this Act applies. 13 Repeal of the Act This law is repealed on 1 January 2013.(9) 14 Coming into force This law comes into force [1 year after it is passed].(10) 8
  • 11. Schedule Gobbledygook fee scale 1 Gobbledygook list (1) For each of the following words, phrases, or abbreviations used in a legal document there must be paid to the Plain Language Institute the amount indicated: For each Pay said ......................................................................................$ 75.00 aforesaid ............................................................................. $ 150.00 herein .................................................................................. $ 125.00 hereinbefore ........................................................................ $ 200.00 hereinafter ........................................................................... $ 175.00 heretofore ........................................................................... $ 150.00 hereunto .............................................................................. $ 125.00 whereof ............................................................................... $ 75.00 wherein ............................................................................... $ 75.00 AD (Anno Domini) ............................................................. $ 1000.00 (2) If the word, phrase, or abbreviation is repeated in a legal document 10 times or more the fee for each use in the document is tripled. 2 Adding gobbledygook to the list The [Governor General] [Lieutenant Governor] [Commissioner] in Council may, by regulation, (a) add to the listed words, phrases, and abbreviations, and (b) set the fee payable to the Plain Language Institute for use of the word, phrase or abbreviation. 9
  • 12. Endnotes 1. David Elliott is a barrister and solicitor in Edmonton, Alberta. Comments and suggestions on the draft are most welcome and can be sent to him at: PO Box 1423 STN Main Edmonton, AB T5J 2H5 Email: words@davidelliott.ca Fax: (780) 425-5710 Phone: (780) 425-7337 2. The Alberta initiative ended soon after 1992 and government initiatives are, as of 2002, limited. 3. This draft is compiled as a result of conversations and comment from people across Canada. It is a first attempt to bring the views together in the form of draft legislation. The Act is designed so that it could be introduced in the Federal Parliament, a Provincial legislature or a Territorial Legislative Assembly. 4. Many people oppose purpose sections in legislation. I support them in appropriate cases because, as Sir William Dale put it: An enunciation of principle gives to a statute a firm and intelligible structure. It helps to clear the mind of the legislator, provides guidance to the Executive, explains the legislation to the public, and assists the courts when in doubt about the application of some specific provision. In this Act it is important to stress its prime purpose - to change attitudes and approaches to official writing. 5. This proposal was made in 1992 without consulting the Plain Language Institute (which is no longer in existence). Obviously another entity could be named, a special fund created, or other ingenious idea designed to support research and practical improvements to legal, government, and business documents. 6. There may be some legal documents that, for special reasons, need to be exempted from the law. This proposal puts the onus on those seeking an exemption to make their case. The entity making the regulation would be the Governor General in Council for Federal legislation; the Lieutenant Governor in Council for Provincial legislation; and the Commissioner in Council for Territorial legislation. 10
  • 13. 7. See the Schedule to the proposed Act which sets out fees for using certain archaic or unnecessary words. 8. This section is designed to obtain declarations that a legal document is gobbledygook. For example, it would allow consumer groups to take action in appropriate cases. 9. No law should stay on the statute book without a regular review. This section proposes repeal of the law about 10 years after it comes into force. The section will force an evaluation of its effectiveness - if the law works, it can be extended. 10. This section is designed to give people a reasonable chance to get legal documents in shape. Alternatively, the law could be designed to apply to different documents over a 2-3 year period, phasing in its application. 11