Plain English and the Law: the 1987 Report Republished (html)

5. The importance of plain English

93 Plain English is important because it improves communication. Improved communication increases information and decreases the need for interpreters. In the legal system, adoption of a plain English approach would have two main benefits. First, it would contribute to the rule of law by decreasing the risk of unintentional breaches of the law, and of legal obligations, resulting from ignorance or misunderstanding. Secondly, it would decrease the costs associated with the administration and application of legislation and other legal documents.

The rule of law

Problems created by poor drafting

94 Laws confer benefits and impose obligations on people. If laws are not written in clear and easily comprehensible language, those who are affected by them may be deprived of those benefits or fail to discharge their obligations. But laws are rarely written as plainly as they might be. In 1950, Lord Radcliffe commented on legal language by saying that:

a sort of hieratic language has developed by which the priests incant the commandments. I seem to see the ordinary citizen today standing before the law like the laity in a medieval church: at the far end the lights glow, the priestly figures move to and fro, but it is in an unknown tongue that the great mysteries of right and wrong are proclaimed.^[88]

He concluded by posing the question:

what willing allegiance can a man owe to a canon of obligation which is not even conceived in such a form as to be understood?

Recent concern

95 Little has changed since Lord Radcliffe expressed his concerns. Sir John Donaldson MR

referred to precisely the same question in a case in 1983. Merkur Island Shipping Corp v Laughton^[89] concerned the question whether the International Transport Workers Federation (ITF) had committed the tort of inducement to commit a breach of contract. The answer depended on the effect of three interrelated Acts of Parliament, none of them expressed in clear language and the most recent of them adopting definitions which distorted their natural meanings. Sir John Donaldson MR observed that:

The efficacy and maintenance of the rule of law, which is the foundation of any parliamentary democracy, has at least two prerequisites. First people must understand that it is in their interests, as well as in that of the community as a whole, that they should live their lives in accordance with the rules and all the rules. Second they must know what those rules are. Both are equally important, and it is the second aspect of the rule of law which has caused me concern in the present case, the ITF having disavowed any intention to break the law.

In industrial relations, it is of vital importance that the worker on the shop floor, the shop steward, the local union official, the district officer and the equivalent levels in management should know what is and what is not ‘offside’. And they must be able to find this out for themselves by reading plain and simple words of guidance. The judges of this court are skilled lawyers of very considerable experience, yet it has taken us hours to ascertain what is and what is not offside, even with the assistance of highly experienced counsel. This cannot be right.^[90]

Relationship to Government policy

96 There is a growing awareness of the importance of proper communication in relation to the rights and obligations of citizens. A failure by the Parliament or the Government to communicate its message as clearly as possible to its audience puts at particular risk those who are not well educated, who have had relatively little experience, or who are not fluent in the English language. Many of the Government’s major client groups, including those in receipt of social welfare payments are within one or other of these categories. There is a special danger that they will break the relevant rules, fall foul of the relevant procedures, and be deprived of entitlements and opportunities if Government bodies communicate with them in inappropriate ways. The objectives of the Government’s Social Justice Strategy include the extension of the effective exercise of legal rights. That objective is put at risk by laws and forms which are needlessly complex and pay little or no attention to the principles of plain English. People must know their rights and be aware of relevant opportunities if they are to exercise and make use of them. Government initiatives to further the objectives of its Social Justice Strategy will be less effective if resources have to be wasted on unnecessary administrative tasks.

Response of legal system

United States

97 In the United States, the courts themselves are responding to the problem in innovative ways. Perhaps the most important decision is David v Heckle.^[91] This involved a class action on behalf of hundreds of thousands of elderly people in New York whose Medicare claims had been reduced by the Department of Health and Human Services and the insurance carrier administering the relevant part of the Medicare program. Under the program, reduction of such a claim was permitted if the particular treatment was not necessary, or was not covered by the program, or if the doctor’s charge was not reasonable. A beneficiary was entitled to seek a review of a reduction of a claim. After review, the insurance carrier was required to send a notice notifying the beneficiary of the basis of the decision on review. Where the amount involved was more than $100, there was an opportunity for a hearing. The plaintiffs claimed that the review notices they received were in violation of the due process clause of the United States Constitution.

98 Chief Judge Weinstein of the United States District Court for New York upheld their claim. The particular review letter received by Joseph David was long and confusing. The explanation for the refusal of additional payment was:

The Medicare Department has reviewed these claims and have determined that no additional allowances are warranted. They were paid correctly to the doctors’ new and old profiles.

There was no indication of what the doctors’ reasonable charge allowance was. The phrase ‘doctors new and old profiles’ was not defined. Expert evidence was given to the effect that the letter was understandable only by someone with the reading ability of a college senior. While other review letters were not as complex, the reading level required for them was still above that of most of the relevant elderly population:

The review letters defy understanding by the general populace. They are filled with confusing cross-references to ‘control numbers’ and are composed of paragraphs that seem strung together randomly. Explanations are couched in technical jargon. The words and phrases ‘approved charges’, ‘customary charges’, ‘prevailing charges’, ‘locality’, ‘economic index’, and ‘physicians’ old and new profile’, which are the substance of the letter, are specialized Medicare vocabulary. To a layman unfamiliar with Medicare regulations, this language has no real meaning.

Review letters are not only incomprehensible, but the information they do contain is insufficient and misleading. They set forth the figure which the carrier says is controlling without making any pretense of showing how the carrier arrived at the figure. The notices explain the computation of the carrier’s payment to the beneficiary only in generalized terms, assuming the correctness of the reasonable charge. This despite the fact that the key ingredients in the total computation are the reasonable charge figure and the method by which it is determined.

Chief Judge Weinstein summed up the letter in the following way:

The language used is bureaucratic gobbledegook, jargon, double talk, a form of officialese, federalese and insurancese, and doublespeak. It does not qualify as English.^[92]

Australia

99 The doctrine of due process is available in the United States as a catalyst for change in legal language. It has no counterpart in Australia. Many American jurisdictions have gone further and enacted specific and general laws prescribing levels of intelligibility in certain documents. In Australia, however, legislative recognition of the importance of proper communication of citizens’ rights has been halting and piecemeal. Specific information requirements are contained in a small number of Acts. One example is the Insurance Contracts Act 1984 (Cth). This requires that the insured be ‘clearly informed’ of his duty

of disclosure and of a variety of terms in a proposed contract of insurance.^[93] Another example is the Credit Act 1984 (Vic). This also requires that certain information be provided to consumers, partly on prescribed forms which have been said to be a model of clarity.^[94] But many other areas of the law remain unaffected. The doctrine of unconscionability might provide an answer in extreme cases. This doctrine enables agreements which are fundamentally unfair to be set aside in certain circumstances. Incomprehensibility of a contractual clause is regarded as capable of giving rise to unconscionability under the Uniform Commercial Code in the United States.^[95] However, Australian courts have not yet said anything on the matter, either under the general law or under the Unfair Contracts Act 1980 (NSW). This might not matter so much if laws and other legal documents were written clearly. But as earlier chapters of this report demonstrate, that is not always the case.

Cost savings

Costs of poor drafting

100 Laws which are not written in plain English impose unnecessary costs on Government and on the community at large. A document that is not readily comprehensible takes longer to understand, is more likely to need a ‘translator’ and is more likely to be misunderstood. Poorly drafted Bills consume the time of Members of Parliament who must understand and debate them. They impede the conduct of business in Parliament and interfere with the Government’s legislative program. Poorly drafted Acts and regulations consume the time of those who must administer or comply with them. They reduce the efficiency of administration and of business activity contrary to the Government’s policies on public service efficiency and business deregulation. They waste the time of lawyers and judges. The costs imposed by poorly drafted laws and related documents could be much reduced if they were written in plain English. The government would save administrative costs.

The community would benefit from a reduction in the costs of complying with the law.

Savings on plain English forms

United Kingdom

101 Recent experience in the United Kingdom indicates the potential savings which could result from adoption of a plain English policy in relation to government forms. Since February 1982, there has been a concentrated effort by Government departments in the United Kingdom to reduce the number of forms used and to improve the design of those that are essential. The Management and Personnel Office of the Cabinet Office is responsible for the program. It reports directly to the Prime Minister. By July 1985, 15,700 forms had been eliminated and 21,300 had been significantly improved. Savings to Departments by the redesign of forms amounted to millions of pounds a year, of which 4 million pounds a year was identified in 1984–85 alone. The 1984–85 cost of work on forms was only 2 million pounds. This included the cost of purchase of equipment.

102 One of the major factors in the savings has been the simplification of language and layout to minimise errors in completing government forms. A report made by Coopers & Lybrand Associates on the effectiveness of forms used by the United Kingdom Department of Health and Social Security^[96] identified the types of costs involved in the action necessary to correct errors on forms. These were of three main types:

• Costs to the Department. These included staff time for interviews, telephone calls and visits; postage, telephone and stationery; travel and subsistence.

• Costs to respondents. These included the additional time spent on interviews, telephone calls and visits; completing additional forms; postage; and delay in receipt of benefits.

• Costs to employers of respondents. These were constituted by the time taken by staff in locating respondents to answer queries and the time taken off work by respondents themselves.

103 The error rates on the forms were high and the costs enormous:

The DHSS currently uses some 12,000 different forms, roughly half of which are issued to the public in numbers varying from 10,000 to 30 million per year. Forms are used for assessing entitlement to benefits, collecting information and providing information to the public. Forms which are badly designed generate misunderstanding and errors; incorrect information may be given, questions may not be answered or, in some cases, the entire form may be left blank. In addition to the delay and frustration caused for members of the public, employers and the DHSS, such errors give rise to very significant cost. Estimates made during the course of this assignment suggest that if the forms we examined are typical then the costs of errors to the DHSS in additional processing costs alone, average some 113,000 pounds per form per annum. Thus, for the 6,000 forms issued to the public, the total annual cost to the DHSS of errors could be of the order of 675 million pounds, with costs and disbenefits of similar magnitude being incurred by employers and members of the public.^[97]

104 A particular study was made of the costs resulting from errors in completing 14 separate forms. One form alone, with an estimated annual use in excess of 4 million copies, accounted for errors costing more than 1 million pounds to remedy. The cost of the remedial action for errors in all 14 forms was almost 11 million pounds. The estimate of the cost imposed on respondents by the errors on those forms was almost 2 million pounds. Further costs imposed on respondents’ employers were more than 500,000 pounds.

Victoria

105 No equivalent studies have been made in Australia. However, substantial savings have already been achieved in projects undertaken during the Commission’s work on the plain English reference. A project on rewriting the traditional Summons and Information form will eliminate both wasteful paperwork and unnecessary procedures. As a result, 26 staff positions, including 15 in the police force, will be available for redeployment to more useful areas. In a project on court forms in connection with road traffic offences, two forms have been eliminated and the redesign of the third will reduce paperwork and save another four staff positions. The combined savings are estimated to be worth between $400,000 and $600,000 a year.

Savings on plain English legislation

106 It is much more difficult to assess the likely savings to Government and the community of the implementation of a plain English policy in relation to legislation. There is no experience to rely on. There would clearly be savings in administrative time and costs, particularly legal costs, to the community. The level of these savings would depend on a variety of factors. It is evident, however, that the savings in relation to the time taken to comprehend legislation would be substantial. To investigate the improvement in the time taken to comprehend legislation and the level of comprehensibility, the Commission engaged Dr Virginia Holmes, Reader in Psychology at the University of Melbourne, to conduct a study. The broad aim of the study was to determine whether legislation drafted in the traditional manner is more difficult to understand than legislation drafted in plain English. The study was based on a comparison between traditional and plain English versions of sections from the Companies (Acquisition of Shares) Act 1980 (Cth) and the Futures Industry Act 1986 (Cth). Passages of original legislation and plain English versions^[98] were given to separate groups of lawyers and law students. They were asked to apply the legislation to a number of hypothetical cases. The time taken to complete the task was recorded and the answers were assessed. The results are set out in Table 1.

TABLE 1

There was no significant difference in the level of accuracy of the answers given by participants.^[99] However, there was a significant improvement in the time taken to reach that level. The mean time for comprehending the plain English versions of the test passages was between one half and one third of the mean time for comprehending the traditional versions. These findings strongly suggest that considerable savings could be made for lawyers and the community if legislation were drafted in plain English. A much more sophisticated study would be necessary to establish the extent of those and other savings, including savings resulting from a decreased need to seek lawyers’ advice.

Other benefits

107 The Government would benefit from a plain English policy not only by the obvious reduction of its costs in dealing with the public but also through the increased understanding its officers would have of corporate goals. Mr Brian Palfrey, a training and development consultant whose work with various government departments and

agencies has been concerned with effective communication, said in his submission

dated 23 February 1987:

In evaluating some of these programmes and from my reading of the experiences of organisations that have adopted (or imposed) a [plain English] house-style, I am impressed by the results. One particularly interesting feature is that, once the house-style is simplified, not only can the clients understand, but the staff within the organisation suddenly become more aware and productive. Plain English removes the mystery and inaccessibility of documents not only for the reader: the writer gets relief too, once the skills and confidence begin to take root. One significant consequence of this in some organisations has been that more staff become capable of writing effectively and independently. This is healthy. It makes more productive use of more people’s time; it raises self-esteem and enriches jobs; and, remarkably, it allows staff to understand sometimes for the first time exactly what the section or department does, and how it does it.

More effective communication is therefore not just a benefit in external relations. It assists an organisation in increasing its own efficiency in a variety of ways. It leads to greater understanding of corporate goals, greater job satisfaction and greater efficiency.

88. ‘Some Reflections on Law and Lawyers’, (1950) 10 Cambridge Law Journal, 348, 361.

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89. [1983]1 AllER 334.

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90. At 351.

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91. 591 F Supp 1033 (1984).

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92. At 1037.

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93. ss 22, 35, 37, 44.

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94. W Pengilley, submission, 29 December 1986.

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95. See Wille v Southwestern Bell Telephone Co, 219 Kan 755, 549 P 2d 903 (1976); J Fort, ‘Understanding Unconscionability: Defining the Principle’, (1978) 9 Loyola University Law Journal 765.

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96. Operational Research Services: Forms Effectiveness Study, 1984.

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97. At 1. See also Law Reform Commission of Canada, Annual Report, 1985-6, 21.

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98. s 150 Futures Industry Act 1986 (Cth) and s 31 Companies (Acquisition of Shares) Act 1980 (Cth).

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99. The passages chosen dealt with complex concepts. Even the plain English versions were difficult. The rate of comprehension (words per minute) was slightly lower in the case of the plain English versions than in the case of the traditional versions. This is probably attributable to the absence from the plain English versions of the repetitions in the original. These are familiar to lawyers and law students.

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