"Even where the Counsel in chambers is merely 'advising on a case' or drawing up a conveyance of property, he is really thinking of what view the court and the judges will take of his advice or his draftsmanship if any dispute arises on them . . . . The supreme test in every case is: 'Will this stand the scrutiny of the Court?'STEPHENS. Commentaries on the Laws of England
THE peculiarities of legal English are often used as a stick to beat the official with. They are cited (to quote a typical comment) to show that "it would be a herculean task to teach the Civil Service to write its own language creditably". The style in which Acts of Parliament are written is contemptuously called "official jargon". That the style has peculiarities cannot be denied, but if it is jargon -an arguable proposition-its species is the legal not the official. It is written by lawyers, not by civil servants (in the sense in which the critics use the term), and its peculiarities arise from causes exactly opposite to those of the peculiarities alleged against officials. Those of the one come from a desire to convey a precise meaning; those of the other-so it is said-come too often from a reluctance to convey any meaning at all. The only difference between the language of Acts of Parliament and that of private legal documents is that in the skilled and experienced hands of Parliamentary Counsel its inevitable peculiarities are less obtrusive and ungraceful than they are in the hands of the ordinary private practitioner. Such as they are, they are caused by the necessity of being unambiguous. That is by no means the same as being readily intelligible; on the contrary, the nearer you get to the one the further you are likely to get from the other.
The reason why certainty of meaning must be the paramount aim is clear enough. These documents impose obligations and confer rights, and neither the parties to them nor the draftsmen of them have the last word in deciding exactly what those rights and obligations are. That can only be settled in a Court of Law on the words of the document. If anyone is to be held irrevocably to meaning what he says, he must be very careful to say what he means. And words are an imperfect instrument for expressing complicated concepts with certainty; only mathematics can be sure of doing that. As Dr. Glanville Williams has pointed out in this connection, "words have a penumbra of uncertainty". He writes:
"The ordinary man is not usually troubled with these perplexities. It does not matter to the seaman whether an anchor is or is not called part of a vessel. A chemist does not need to answer the question, yes or no, does a rolled-gold watch come within the description gold. Biologists may find difficulty with their classification, but nothing turns on the question whether they classify a creature under one head or another: it is simply a question of verbal expediency. With the lawyer it is different. The lawyer, like the theologian, is faced with a number of texts that he regards as authoritative and that are supposed to settle any question that can conceivably arise. Each text was once drawn up by someone who presumably meant something by it; but once the document has left ins author's hands it is the document that matters, not any unexpressed meaning that still remains in the author's mind. For the lawyer the words of the document are authoritative as words and there is no possibility of obtaining further information from the author, either because the author is dead or because of the rules of evidence precluding reference to him". (4)
It is accordingly the duty of a draftsman of these authoritative texts to try to imagine every possible combination of circumstances to which his words might apply and every conceivable misinterpretation that might be put on them, and to take precautions accordingly. He must avoid all graces, not be afraid of repetitions, or even of identifying them by aforesaids, be must limit by definition words with a penumbra dangerously large, and amplify with a string of near-synonyms words with a penumbra dangerously small; he must eschew all pronouns when their antecedents might possibly be open to dispute, and generally avoid every potential grammatical ambiguity. (An application for quashing a New Towns Order turned on the true antecedent of a thereto.) All the time he must keep his eye on the rules of legal interpretation and the case-law on the meaning of particular words, and choose his phraseology to fit them. (Previous judicial interpretations of the word money recently compelled the beneficiaries under a will to take a case to the House of Lords in order to establish that money meant what everyone knew the testatrix had intended it to mean.) No one can expect pretty writing from anyone thus burdened. A well-meant attempt was made by the Minister in charge of the Bill that because the Workmen's Compensation Act 1906 to make perfectly clear to ordinary people what sort of accidents gave rise to a right to compensation; he insisted on using the simple words "arising out of and in the course of" the employment. Simplicity proved to have been bought at such cost in precision that those words must have caused more litigation than any other eight words on the Statute Book. Halsbury's Laws of England takes more than 38 pages to explain the phrase and cite the cases on it.
To illustrate the difference between ordinary phraseology that makes its meaning plain and legal phraseology that makes its meaning certain, let us take an example at random. I open the volume of Statutory Rules and Orders for 1945, and, turning over the pages until I find a short one, alight on the "Rags (Wiping Rags) (Maximum Charges) (Amendment) Order". In the summer of 1945, it appears the President of the Board of Trade, moved perhaps by compassion for those who follow what must be a spiritually unsatisfying occupation, decided to increase the profit allowed for washing wiping rags. The Order effecting this (if we omit the common-form provisions about the Interpretation Act and the Short Title) runs as follows:-
"The Rags (Wiping Rags) (Maximum Charges) Order 1943 (as amended) shall have effect as if in Article 1 thereof for the figure '8' where it occurs in the last line there were substituted the figure '11½'."
This by itself conveys no meaning at all to anybody. Because the same is true of so many Orders, instructions have been given to all Departments that every Order submitted to Parliament must be accompanied by an explanatory memorandum. In this case the explanatory memorandum was as follows:-
"This Order permits launderers of wiping rags to add 11½ percent to the charges they were making during the week beginning the 31st August, 1942, for such work".
That is a statement immediately intelligible. Why could not the Order itself be equally lucid? Because, although the explanatory memorandum is probably enough to tell most people all that they want to know, it is not precise enough to give unmistakable guidance in doubtful cases or to support a prosecution for its breach. What is a "wiping rag", and what are "charges"? Both need definition, and both are elaborately defined in the original Order. Why then, it may be asked, did not the amending Order repeat these definitions, and so make all clear? Because the definitions are so complicated that re-enactment of the Order as amended would have been far from making the meaning of the Order immediately clear. Research would have been necessary to find out what was old and what was new. If the whole of the old Order had been reprinted with the substitution of 11½ for 8 not only would there have been a waste of paper, but everyone would have had to look through both old and new Orders with minute attention, only to discover in the end that the only change was in the figure. Moreover the two volumes of Statutory Rules and Orders for 1 945 already contain no fewer than 3,000 pages. No one would ask for more. To complete the picture, here are the definitions of "charges" and "wiping rags in the original Order:
(i) basic charge means in relation to the services to which this Order applies,
(a) the charge made for such services in the ordinary course of the business in the course of which those services were being performed during the week beginning 31st August, 1942, in accordance with the method of charge then in being in relation to that business for performing such services; or
(b)the charge made for such services in the ordinary course of a substantially similar business during the said week, in accordance with the method of charge then in being in relation to that business for performing such services;
Provided that in any case in which a person who performs such services proves that such services were being performed in the course of his own business during the said week, 'basic charge' shall only have the meaning specified in sub-paragraphs (a) of this paragraph.
'Rags' means any worn-out, disused, discarded or waste fabric or material made wholly or mainly from wool, cotton, silk, rayon or flax or from any mixture thereof.
'Wiping rags' means rags each one of which is not less than 144 square inches in size and has been trimmed and washed and is suitable for use as a wiping rag".
This may provoke the comment that the washing of wiping rags can hardly be worth such lavishness of words. But that is beside the point. The point is that the law, whatever it is about, must be certain, and if it is necessary for the law to concern itself with washing wiping rags, it must be no less certain here than anywhere else. If anyone thinks that he can draft more simply and no less certainly, I advise him to try his hand and then ask an expert whether he can find any loopholes. I have seen even eminent members of the Bar humbled by that test. Drafting is a science, not an art; it lies in the province of mathematics rather than of literature, and its practice needs long apprenticeship. It is prudently left to a specialised legal branch of the Service. The only concern of the ordinary official is to learn to understand it, to act as interpreter of it to ordinary people, and to be careful not to let his own style of writing be tainted by it, a subject to which we will return. These remarks are therefore a digression from my main subject; their purpose is to expose the confusion of thought of those who criticise officials because Acts of Parliament are not written in readily intelligible English. Even Eric Partridge slips into it whets he quotes in his Usage and Abusage under the heading Officialese, an article in a newspaper making game of this extract from the Shops (Sunday Trading Restriction) Act, 1936:
...the following provisions of this Act shall extend only to shops, that is to say, those provisions of section six and section eight which relate to the approval by occupiers of shops of orders made under those sections, the provisions of paragraph (e) of subsection (1) of section seven and the provisions of paragraph (a) of section twelve".
If example were needed to prove that legal language cannot be elegant or luminous, this would serve well enough.(5) But that needs no proof; everyone knows it. To a reader with the Act before him (and he cannot expect to understand it unless he has) the meaning that this subsection conveys is precise: it says unambiguously that certain provisions of the Act apply to trading only in shops and that all the others apply to trading not only in shops, but also in any place that is not a shop. The trouble in this case arose not from any obscurity in the words quoted, but from the penumbra round the word place used in another Section. The Court held that it was not as large as the draftsman had thought. He had naturally assumed that, when he had covered both sales in shops and sales places that are not shops, he had left nothing outside. But he was wrong. He forgot the stop-me-and-buy-one man. The Court held that the ice-cream vendor's tricycle is neither a shop nor a place; and the bit of ground on which it happens to be standing is not a place either. His sales are therefore outside both categories, and he escapes the meshes of the Act. This curious instance of the waywardness of words shows how hard it is for the draftsman to foresee every possible path down which the judicial mind may be led by what he writes, and also provides another illustration of the truth that legal ambiguities are caused more often by over-simplicity of diction than by over-elaboration.
The official has therefore two good defences against a charge of failing to draft a law in literary English: one that he did not draft it, and the other that if it had been so drafted it would not have served its purpose.
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