International Conference on Legal Language

International Conference on Legal Language

Linguists and Lawyers -
Issues We Confront

Writing Rules: structure and style

David C. Elliott
Edmonton, Alberta, Canada

24-27 August 1994

The Aarhus School of Business,
Aarhus, Denmark

Contents

Introduction...... 1

The need for structure
The effect of style
The purpose of communication
Seeking information from rules
Responsibility of rule-writers
Return on investment
Purpose of this paper

PART 1: THE STRUCTURE OF RULES...... 2

Some history...... 3

Early laws written in English
Criticism of the lack of structure
Lord Brougham's Act
After 1850
The state of the art today
Differences of opinion over decimal numbering
An alternative
Conclusion

PART 2: A QUESTION OF STYLE...... 15

Different strokes for different folks
Stylistic echoesof a distant past
Style need not compromise effectiveness
Recent stylistic innovations in rule-writing
From New South Wales, Australia
From the United States
From Canada
From Canada/New Zealand collaboration
From England
Stubborn styles from the past
Times are changing

Conclusion...... 39

The rule-writer's task
The future

Appendices...... 40

Appendix 1 - English Act of Parliament of 1783
Appendix 2 - Mr. Pitt's literary composition
Appendix 3 - Telegraph Act of 1863.
Appendix 4 - Acts from various jurisdictions enacted around 1900.
Appendix 5 - Comparison of Traditional and Modern Formats

Writing rules: structure and style

Introduction

The need for structure

Just as music is composed on staves with bars indicating timing, so should rules have a consistent framework for their component parts, divisions, sections, subsections, and other segments. Structural conventions, for music and for rules, provide a framework for both writers and readers. The framework aids in communicating the writer's musical or written message.

The effect of style

My Bank Manager recently wrote to me to say that I "was required to attend her office" to fill in some forms. The style of that letter caused me to ignore the contents. Writing style is important. It can encourage or repel reading. So too with rules. If the style is convoluted and overly complex, readers are naturally reluctant to read them.

The purpose of communication

Every written communication has a common purpose – to convey information in the writer's mind, through the medium of writing, into the mind of the reader. The objective, of course, is that nothing be lost in the formulation of ideas, the transcription of ideas into writing, and the accurate comprehension of those ideas by the reader. This is a difficult enough task between two people, but when the "mind" formulating the message is a collection of individuals comprising a rule-making body, like a legislature, and the readers vary from layfolk to professional advisors and judges, the writing task becomes that much more challenging.

Seeking information from rules

We read rules to get information. We may want to keep up to date with the law, we may have a client with a question, we may have to give an opinion about the law, we may be asked to construct a proposal that conforms with the law, we may want to know how the law affects us, but there is one common purpose: to seek information from a rule written by someone else. Often we know little or nothing about how the rule was developed, little or nothing about the underlying intentions of the drafter, and little or nothing about how the rule-maker wants the rule interpreted. This places a heavy burden on readers.

Responsibility of rule-writers

It is now recognized that the burden of communicating complicated ideas – of making rules easier to understand – is a responsibility shared by rule-writers and rule-readers, but with the initial primary responsibility on the rule-writer. This may seem self-evident, but until recently rule-writers drafted rules only to "get them right", not to help readers understand them.

Legislatures are imposing legal obligations on the conveyors of legal information to write understandable rules, and the courts are beginning to develop strands of a doctrine of clear communication as an obligation on legal drafters. In one sense, this obligation can be seen as the other side of the rule that says ignorance of the law is no excuse for failing to comply with it. If ignorance of the reader is no excuse, neither is there any excuse for rules or legal documents that are unintelligible.

Return on investment The value of investing time and resources on the structure and style of rules is easy to identify, difficult to quantify.

Return on investment includes

improved compliance rates. Every well written and functionally well structured document will result in greater compliance with the rule
greater efficiency. Good structure and style mean that readers can find their way around the document more quickly, not just once, but every time every reader seeks information from the document
greater respect for the rule. Better written rules mean they are better understood, which in turn gives the rule greater credibility
reduced administrative costs. Well written rules reduce the need for explanatory information or the need to answer questions about the rule
improved access to the law. Although an unpopular rule remains unpopular, however well written, the debate over its substance is not impeded by difficulty in understanding it.

Purpose of this paper

This paper looks at two of the challenges of rule-writing borne by rule-writers – the structure of rule-writing and the style in which rules are written. By "rules", I include Acts, regulations, bylaws, and other directions governing conduct or activities.

PART 1: THE STRUCTURE OF RULES

It took England over 600 years of law-making(1) before its laws had any structure to them at all.

Some history

Early laws written in English

It is worth peeking into the past to look at how the structure or architecture(2) of rules governing much of the English-speaking world developed.

The earliest laws written in English had no parts, divisions, sections, or subsections. The text filled the page from margin to margin and top to bottom. In part, this was to prevent extra words or sentences being slipped into the text when authentication of original laws was problematic. But the practice of "wall to wall" text went on long after the reason for doing so had passed.

Criticism of the lack of structure

In time, King's and Queen's printers broke up the text of legislation a little by using roman or arabic numerals to give some minimal assistance and relief to readers.(3) Frustration with wall to wall text in legislation surfaced in official circles in England in a 1796 report on the promulgation of statutes, tabled by a House of Commons Committee.(4) The Committee drew attention to the desirability of numbering sections and of adding marginal notes by someone other than those who printed the statutes.

English philosopher Jeremy Bentham railed about the structure and style of English legislation in a series of manuscripts written between 1811 and 1831. Bentham explains how the printer came to affix section numbers to legislation even when the original had no such numbering. He first commented on the original Act of Parliament(5)

Number it has none - division it has none; . . . A lot of surplusage, and mostly a lot to the same effect, such as - "And be it further enacted," - or, "And be it further enacted by the authority aforesaid," gives commencement to a sentence: - and it is on the reappearance of this useless string of words that the printer finds his only warrant for the arithmetical figure which, to the several successive masses thus distinguished, he has ventured to affix.

Bentham recounts a fascinating little story about how William Pitt sought to "create a literary composition" for introduction into Parliament, broken into divisions, sections, and articles. It was based on French drafting style and was rejected as a French plot!(6)

Arthur Symonds was active in the 1830's in promoting improvements to the structure of legislation. As he said in the preface to his book, The Mechanics of Law-Making(7)

There are full enough of workmen on the general principles of our legislation: there are few or none engaged on the details of its workmanship.

One of the difficulties of not having section numbers in English Acts of Parliament was identified by Sir Henry Seton who submitted a series of Notes on the Statute Law to a House of Commons Committee in 1836. Sir Henry said

It is greatly to be wished that the practice of numbering the chapters and sections (so convenient for the purposes of reference) should rest upon some authority beyond that of the King's printer.

He pointed out that the only recognized method of referring to a particular provision in an Act was by describing it, because no officially sanctioned numbering system existed. This caused a particular problem in repealing or amending Acts. It was, said Sir Henry, "attended with the utmost inconvenience". The inconvenience lasted until 1850.

Arthur Symonds continued to consider detailed improvements to the structure of legislation. The editor of Bentham's Of Nomography summarized a proposal by Symonds titled "Papers relative to the Drawing of Acts of Parliament, and to the means of insuring the uniformity thereof, in language, in form, in arrangement, and in matter," which was laid before Parliament. The principal amendments recommended by Symonds(8) were

section headings
each section to be divided into paragraphs, and each paragraph into sentences, so that each sentence may have but one enacting verb
each paragraph to be numbered
a table of contents
authority to be given to a body of persons to frame regulations, for the purpose of obtaining uniformity in statutes
a public officer to revise all statutes, and see that they conform with the regulations
a brief mode of referring from one statute to another
an authoritative classed index or catalogue of the whole Statute Law.

Arthur Symonds' proposals were perhaps the first formal suggestion in the United Kingdom of "regulations for the purpose of obtaining uniformity" in Acts of Parliament. It was more than 30 years later before an office was established dedicated to bringing some uniformity to legislative drafting in the United Kingdom.

Lord Brougham's Act

In 1850, Lord Brougham's Act(9) said

All Acts shall be divided into sections if there be more enactments than one, which sections shall be deemed to be substantive enactments without any introductory words.

And so, at last, it took an Act of Parliament to force Parliament itself to break the text of its laws into sections, and some improvements were immediately apparent.(10)

After 1850

Still, it was not until 1869, when Henry Thring became the first Parliamentary Counsel to the Treasury, responsible for the preparation of all Government Bills, that structural changes in the form of legislation were further developed. Over the next 50 years or so the structure was refined to become uniformly applied in the structure and format we recognize today.(11) Appendix 4 shows a selection of Acts from various jurisdictions enacted around the turn of this century.

In English law-making jurisdictions it is now common to see larger Acts divided into parts with each part sometimes further broken into divisions. Sections, the core of the legislative structure, are divided into subsections and further divided into paragraphs, sub-paragraphs and clauses.(12) Marginal notes or headings to sections (and sometimes marginal notes to subsections) are standard practice.

For most of this century, the basic structure of legislation written in the British Commonwealth(13) has remained relatively unchanged, although from time to time, in some jurisdictions, minor revisions to the indentations, marginal notes, and typeface of legislation have been made.

The most commonly found structure of sections is illustrated below(14)(15)

1 Section

(1) Subsection

(2) Subsection

(a)Paragraph

(b)Paragraph

(i)Subparagraph

(ii) Subparagraph

(A)Clause

(B) Clause

2 Section

The following example illustrates the structure and format that was used for many years in the Province of Alberta.

Notice of commodity advance and registration of lien / 268(1) Within 90 days of the making of an advance for the purpose of supplying a commodity to a person pursuant to this Act, the municipal district
(a) shall cause to be published in The Alberta Gazette of lien a notice that an advance has been made for that person, and
(b) shall register in the office of the proper land registration district the agreement for a lien.
(2) The charge referred to in subsection (1) has precedence over all other encumbrances against the land except
(a) taxes and sums that by law may be charged against the land in the same manners as taxes,
(b) any mortgage
(i) that is a first registered encumbrance against the land at the time the lien is registered by the municipal district, or
(ii) that, being registered at the time, subsequently becomes a first registered encumbrance by the discharge of previous encumbrances,
And
(c) sums remaining unpaid in respect of advances previously made under a statute providing for seed grain

The state of the art today

The past 20 years has seen a growing interest in the format of legal texts. Part of this interest stems from public demand for more readable legal documents, part from legislative and policy initiatives (particularly in the United States and Australia), and in part from development in printing technology. Research knowledge about layout and spatial and typographical cues is slowly being considered and incorporated into legislation. These cues have been shown to improve readability and assist readers in finding their way around texts.

Clarity is now recognized as involving consideration of type-style, line length, typographical aids, white space, headings and the like. Several jurisdictions, research bodies, and individuals(16) have undertaken research into improving the structure and format of legislation. The result of these inquiries commonly leads to recommendations

for headings to sections in distinctive type
for section numbers printed in a place and in a style that makes them easily identifiable without being intrusive
for a modern readable typeface of appropriate size
for print features to aid readers (for example, italicizing definitions, and to indicate the hierarchy of provisions in the text)
for appropriate use of white space
for limited line length and consideration of page size and colour.

Commentators have also considered the use of decimal numbering systems, the use of running headings to pages and the use of justified and unjustified text. The overall response to these proposals has been very positive. It is now well established that a readable, functional text comes from a combination of small design features. Those design features are well described in the reports in footnote 16 and do not need to be repeated here.

The following pages are extracted from a joint proposal (including the technical specifications) by the New South Wales Parliamentary Counsel's Office and the Centre for Plain Legal Language at the University of Sydney. The proposals illustrate the "state of the art" in the structure and format of legislation, although the proposals have not yet been implemented.(17)(18)

Differences of opinion over decimal numbering

Canadian legislative counsel considered and rejected a full decimal numbering system for legislation 20 years ago (although most Canadian jurisdictions use a decimal system for adding new sections or subsections to existing legislation). The Victoria Law Reform Commission recommended a decimal system in 1988. The New South Wales Parliamentary Counsel's Office has considered, and to date rejected, a decimal system.

Martin Cutts, of England, found a full decimal system ugly,(19) but suggested subsections be decimally numbered (for example 3.1; 3.2; 3.3 instead of 3(1); 3(2); 3(3)). Fred Martin, a Canadian lawyer, has experimented with this system for some years. It has been well received. The difficulty is that new sections or subsections added by amendment could not then be added using a decimal system.

An alternative

Non-lawyers developing a National Building Code for Canada took a rather different approach to numbering rules. The Code explains and demonstrates its system as follows:

Section 1.1 Referencing

1.1.2. Numbering System

1.1.2.1. Nomenclature

(1) In the numbering system used in this Code the first number indicates the Part, the second number indicates the Section of the Part, the third number indicates the Subsection of the Section, and the fourth number indicates the Article of the Subsection.

(2) An Article in this Code may be divided into Sentences, which are indicated by numbers in parentheses, the Sentences may be divided into Clauses, which are indicated by lower case letters in parentheses, and the Clauses may be divided into subclauses, which are indicated by roman numerals in parentheses.

(3) A reference in this Code by number to two or more Sections, Subsections, Articles, Sentences, Clauses or Subclauses shall be read as including the number first mentioned and the number last mentioned.

(4) A reference in this Code to a Sentence, Clause or Subclause shall, unless a contrary intention is given, be read as a reference to a Sentence, Clause or Subclause of the Article, Sentence or Clause, as the case may be, in which the reference is made.

I find this approach overly complex and sometimes confusing, but familiarity with traditional systems may affect my views.

Conclusion

Except for occasional tinkering, the modern structure and format for rules is exemplified by the New South Wales Parliamentary Counsel's Office/Centre for Plain Legal Language proposals. It sets the standard against which the structure and format of rules will be judged.

Apart from further consideration of numbering systems and the addition of other typographical aids, the legal community (with the New South Wales proposals) has probably gone about as far as it can in designing a functional structure and format. But perhaps linguists can suggest other issues lawyers and linguists should jointly confront in the structure and format of rules?