Not only do we need to get rid of outdated laws; we need to ensure that new ones are written in language that is easily understood, writes Henry Murdoch.
Most persons, including lawyers, agree that the law of the State should be written in simpler, clearer and less archaic English.
This week the Law Reform Commission announced a public consultation process on restatement of legislation, as part of a Government plan to make legislation more coherent and accessible. It is a welcome initiative. While some progress has been made in this direction, the wheels of change grind slowly in the law.
Since 1995 there is no longer a requirement for barristers to wear their archaic wig in court and yet many still sport them. One criminal law barrister jokingly told me that it was necessary to clearly distinguish the lawyers from the accused!
And only last month, 84 years after our independence from the UK, the form of address of judges of the superior courts was changed from the archaic "My Lord" to "Judge".
Legislation in 2005 removed over 200 pre-1922 statutes with their archaic provisions, which were considered spent or of no practical utility, for example the Burning of Bricks (Dublin) Act 1770. Additionally, the process under way by the Attorney General will see the repeal of over 2,000 Acts made before the Act of Union which came into force on January 1st, 1801.
So we are getting rid of all the old, archaic and irrelevant laws. But what about our current laws? Are they being drafted in plain English? Well, yes and no. According to the expert Robert D Eagleson: "Plain English is clear, straightforward expression, using only as many words as are necessary. It is language that avoids obscurity, inflated vocabulary and convoluted sentence structure. It is not baby talk, nor is it a simplified version of the English language."
How does the drafting of our laws comply with this definition?
First, user-friendly and contemporary vocabulary should be used. Words which are not readily comprehensible to the public should not be used, for instance herein, hereby, heretofore, hereinafter, aforesaid and aforementioned. But these archaic words are still appearing in recent legislation, as is the word facsimile when the term fax is better understood.
Second, shorter and less complex sentences should be used. Unfortunately, the old drafting convention was that a section in an Act should consist of one sentence only. This has led to hugely and unnecessarily complex sentences in legislation.
Third, legal drafters frequently separate the subject and verb in a sentence and this often means that the reader has to get to the end of a sentence to understand its meaning. A good example is: "An employer or any servant or agent who aids, abets, counsels or procures an employee in the employment of that employer to commit any offence under subsection (1) shall be guilty of an offence."
This would be better stated as: "An employer or any servant or agent is guilty of an offence if he aids. . ."
Fourth, it is frequently the case that a conditional clause is put at the beginning of a sentence. This is user-unfriendly as the reader is met with an exception before knowing what the substantive position is.
A good example is: "If, for the purpose of obtaining entitlement to any payment of unemployment assistance. . ., or of avoiding the making of any repayment. . ., any person makes any statement which is to his knowledge false or misleading. . ., shall be guilty of an offence. . ."
Fifth, legislation should not introduce unnecessary concepts, such as "the relevant period" or "the appropriate date", which force a reader to look elsewhere for information which could have been given directly.
Sixth, there should be much greater use of examples, maps, diagrams and mathematical formulae in Acts to demonstrate the effect of the legislation. Formulae are used frequently in taxation legislation, but infrequently in other legislation.
The Law Reform Commission identified these issues in considerable depth in a consultation paper in 1999 and in a report in 2000. The commission reviewed the efforts being made in other common law jurisdictions such as Canada, Australia, the UK and the US to have their statutes drafted in plain English .
The commission prefers the term "plain language" as it is broader than "plain English" and encompasses format, design, layout as well as the "plainness" of the words used. The commission recommended that even in the layout of legislation, understanding would be enhanced by highlighting in bold font terms defined earlier in the enactment.
The commission strongly recommended that existing statutory provisions in Ireland be replaced with alternatives expressed in plain language.
It emphasised that while the use of plain language is desirable, this end should not be achieved at the expense of legal certainty, especially where certain words and grammatical constructions, though not in common usage, have acquired a fixed and clear legal meaning.
The recent Interpretation Act, 2005, is a welcome measure which will assist in the interpretation of ambiguous or obscure provisions.
It enables the court to take a more "purposeful" construction from the Act as a whole, rather than the literal meaning of a provision. It also enables a court to make allowances for the change in the meaning of words arising from social conditions and technology. The Act also makes better provision for the use of "examples" in legislation. And it enables the active voice to be used.
There have been concerns about the use of plain language in the law, eg that it would lead to a lowering of standards of good writing, sacrificing certainty, loss of the established meaning of words, and prohibitive costs. But the Law Reform Commission has refuted these concerns. As the Plain English Campaign in the UK argues, the law is all about our rights and responsibilities. How do we know our rights and discharge our responsibilities if we cannot understand the law as written?
Some progress has been made. There is now a modern drafting manual in use in the Attorney General's office, a style guide for use in modern legislative drafting. But a lot more needs to be done.
Henry Murdoch is author of the book Murdoch's Dictionary of Irish Law and the CD/internet product Murdoch's Irish Legal Companion.