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Christopher Williams, The Impact of Plain Language on Legal English in the United Kingdom

Routledge
Ruth Breeze
p. 34-45
Référence(s) :

Christopher Williams. 2023. The Impact of Plain Language on Legal English in the United Kingdom. London and New York: Routledge, 206 pp. ISBN: 9780367457297.

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1Christopher Williams’s new book, The Impact of Plain Language on Legal English in the United Kingdom, is thoroughly welcome in two senses. First, it brings together a wealth of useful and interesting information about legal English, gathered by the author over many years of teaching and research. Second, it also provides much needed empirical evidence concerning ongoing changes in various areas of legal English as a consequence of the move towards plain language and in response to other social concerns. It is also satisfying to see experts in language for specific purposes bringing their ideas together in monograph form, rather than as isolated chapters. In this review, I will first provide an overview of the book’s contribution, with some comments on specific aspects, before proceeding to a final evaluation.

2Wherever legal language is used, it tends to be conservative, and the Common Law reliance on precedent may well make legal English particularly prone to the preservation of archaic linguistic affordances. At the same time, dating back at least to Chaucer, there has been a feeling that legal English is unnecessarily confusing and obscure, making lawyers not only the butt of satirists but also the target of social reformers. For as Williams points out, the plain language movement that gathered momentum in English-speaking countries over the 20th century is underpinned by ethical concerns about ordinary citizens’ inability to comprehend information that is important for their lives, and for the exercise of their rights or performance of their duties.

3The first chapter of this book introduces the concept and the importance of ‘plain language’, showing how the notion of reforming legal language is linked to three theoretical strands. These are language planning (actions or measures designed to implement policies), popularisation (dissemination of ideas to a wider public in order to inspire greater interest, awareness and engagement), and moves to promote greater accessibility of information (mainly through digitalisation) associated with the democratisation of knowledge. The second chapter sketches out a brief history of initiatives intended to further the use of plain language in the United Kingdom. These are described against the background of the influential movements that got under way in the United States in the 1940s and gathered momentum from the 1960s onwards, largely as a result of consumer activism but doubtless also informed by the heightened awareness of citizens’ rights in that cultural context. After briefly describing the origins of the UK-based Plain English Campaign and Plain Language Commission, Williams goes on to discuss various other initiatives to promote plain language and/or help lawyers who want to communicate more clearly. The most prominent of these is Clarity1, which claims to be ‘the largest international plain language organisation’ (Clarity 2022), and whose express aim (enshrined in its mission statement) is to ‘promote plain legal language to engage and empower citizens around the world’. Special attention is then paid to government-backed moves to improve the standards of the English in official documents, which began slowly in the 1980s, and found their first full instantiation in the Timeshare Act (1992) and the more famous Tax Law Rewrite Project that ran from 1996 to 2010. For those of us who teach legal English, the most notable change of this period came about as a consequence of the new Civil Procedure Rules or ‘Woolf Reforms’, implemented in 1999, which removed terms such as ‘plaintiff’ from the language of the courtroom.

4After explaining these developments, Williams devotes special attention to Scotland, and the Office of the Scottish Parliamentary Counsel (now known as Parliamentary Counsel Office), which continues to promote plain language drafting, possibly as part of a wider initiative to reshape the relationship between lawmakers, justiciary and people (see Breeze 2020). The chapter ends with a discussion of some criticisms levelled at the plain English campaigns of this period, in particular, the failure on the part of some campaigners to acknowledge the importance of technical language or to distinguish between the needs of different audiences. The author reaches the conclusion that the plain language ethos has become widely accepted, but that institutional actors are putting its principles into practice only to a limited degree.

5The next three chapters (3–5) look in turn at how far legislators, judges and lawyers in the United Kingdom have implemented the principles of plain language over the last 50 years, providing empirical evidence from several ad hoc corpora. In chapter 3, corpus linguistics techniques are used to investigate changes in the language of legislation. The author obtains quantitative data from legislation enacted in 1970, on the one hand, and in 2018–2020, on the other, and calculates the frequency of various well-known markers of legalese. Some of the results suggest considerable change. For example, the average sentence length in legislation fell from around 79 words per sentence to around 43. Even more dramatic findings emerged in the context of reference words: antiquated pro-forms such as ‘aforesaid’ or ‘foregoing’ have completely disappeared from the 2020 corpus, as have archaic pronominal adverbs (‘thereby’, ‘hereto’, ‘thereinunder’). Inclusive language has also become predominant, with generic ‘he’ or the more inclusive ‘he or she’ almost vanishing from the most recent laws. Interestingly, instead of opting for plural forms throughout or using ‘they’ and ‘their’ to represent a singular referent, the drafters prefer to rephrase such sentences using the passive, a solution which itself poses new problems for comprehension and for the implementation of plain language. However, despite this new issue, drafters have actually reduced the frequency of passive constructions in the more recent corpus. The reduction is performed partly through the use of simple imperatives instead of the more cumbersome ‘shall be done’ expressions, and partly by simply rephrasing passive sentences as active. One related aspect is the decline of ‘shall’, previously the modal verb of obligation par excellence in legal English, on the grounds that ‘shall’ is not used as a deontic in everyday usage. The main substitutes for ‘shall’ are constructions with ‘be to’, and ‘must’, which is in itself questionable (‘must’ usually implies that the speaker endorses a strong obligation, while ‘have to’ is generally used to indicate the existence of an external rule, and of course, ‘must’ is also used to express deduction). Williams concludes this chapter by suggesting that UK legislation is now drafted in ‘standard English’ rather than archaic legalese, but that it is still far from reader-friendly. He speculates that the layout and design of legislation might provide a partial solution to these problems but the author does not go into further details at this stage.

6While chapter 3 points to considerable change in certain areas of legal drafting, chapter 4, which deals with court judgments, suggests that there has been relatively little change in this area. The main bulk of the chapter is again a comparison between texts produced in 1970 and 2020, but this time focusing on judgments from the Court of Appeal. The quantitative comparisons cover similar points to those investigated in the chapter on legislation, although aspects such as first-person pronouns and possessives, honorifics and Latinisms are also included, since these could be expected to be more salient in judgments than in legislation. The findings presented in chapter 4 are indeed interesting. Sentences became longer over this 50-year span, with a mean sentence length of 25.7 words in 1970 compared with 27 words in 2020. Judgments also became longer over that time: Williams excluded very long (>20,000 words) judgments from his sample, but of the ‘shorter’ judgments used, the average length went from 4,657 words in 1970 to 7,372 words in 2020. In particular, civil judgments became much longer, while criminal judgments grew only slightly. In contrast to the findings for legislation presented in chapter 3, use of pronominal adverbs (i.e. ‘hereby’) only declined slightly. Judges in 2020 still made active use of such forms (not only when referring to precedents or legal texts). The use of the passive rose slightly, while Latinisms, which have never particularly been frequent, declined in 2020 to almost one third of their frequency in 1970. The use of titles such as ‘Mr’ fell somewhat, while the convention of referring to colleagues (often, in appellate cases, judges from lower courts who had erred) as ‘the learned judge’ seems to have almost died out. One striking result is that the use of the first person ‘I’ dropped to around one quarter of its previous frequency, while instances of ‘we’ and ‘our’ also dwindled. This intriguing finding can only point towards the development of a more impersonal style of writing. As Williams suggests in his ‘summing up’ at the end of the chapter, this may indicate an underlying move from ‘subjectivity’ (judges of an earlier generation made no effort to conceal their authority) to ‘objectivity’, understood as the tendency to prioritise legal principles over personal opinion. He opines that future judges might benefit from training in judgment writing as appears to be the case in civil law jurisdictions, where judges enter the profession early in their career, perhaps in their twenties, and receive courses in legal drafting.

  • 2 ‘Judicial College’. 2022. Courts and Tribunals Judiciary. Retrieved from <https://www.judiciary.uk/ (...)
  • 3 I would like to thank Upper Tribunal Judge West for his comments on the language of judgments, and (...)

7At this point, a brief digression may be useful, intended to complement rather than contradict the ideas presented in the book. Williams comments that ‘there is clearly a need to persuade judges to exercise self-discipline and restraint when writing court judgments’ (p. 123), and this may indeed be the case, but the question of the length and style of judgments is serious, and there has been discussion of this within the profession itself. Even though formal training on how to write judgments is scarce (but see Judicial College [2022]2, for an overview of training programmes for the judiciary, and Cooper [2015], for an example of the highly content-focused guidance now provided on ‘reason writing’), judges are highly educated people and know that they should take extreme care when writing texts that may establish precedents and will therefore be pored over for many years to come. Indeed, when we consult recent judgments, such as the one issued by Lord Leggatt in Blue v. Ashley (2017), during his time at the Queen’s Bench, we may be struck by their clarity, eloquence and even elegance (although perhaps not their conciseness). It is perhaps instructive here to look at the perspective on judgment writing offered by Lord Burrows, Justice of the Supreme Court of the United Kingdom, in a recent conference for Judges of the Superior Courts in Ireland (Burrows 2021).3 As a former academic and practising Supreme Court judge, he would be expected to have a useful perspective on this situation. After stressing the need for clarity, coherence and conciseness in judgments, he urges the need for numbered headings and subheadings, a relatively recent development which makes it easier to read efficiently and grasp the structure of the text as a whole. He then explains four aspects of judgment writing that present particular challenges. The first of these is the heterogeneous nature of the target audience:

For senior judges, one’s target audience must include the parties themselves, the legal advisers to those parties, other judges, other practising lawyers, academic lawyers and students, and last but by no means least the public at large. (Burrows op. cit.: 4)

8The second is the requirement to be decisive, since ‘unlike a law article, a judgment cannot, on the central questions, sit on the fence’ (ibid.: 4). Thirdly, a judgment may be appealed, and so most judges ‘write with an eye on avoiding being overturned’ (ibid.: 5) (see also Mortimer 2018: 288 on ‘defensive judgment writing to stave off appeals’). Finally, and perhaps most importantly, ‘There is the view that a judgment that is unclear or not concise and therefore inaccessible may contradict the rule of law’ (Burrows op. cit. 5). This makes judgment writing quite different from many other kinds of professional writing: as Burrows points out, however obfuscating an academic paper might be, no one would accuse the writer of contradicting the rule of law.

9For all these reasons, when composing judgments, judges know that many important issues are at stake, and these together contribute to the length of the texts they produce. In other words, the length of judgments should not be attributed merely to an ingrained tendency to ‘long-windedness’ (p. 95). On this very issue of conciseness, Burrows (op. cit.) contributes various significant points. Since judgments may have many different types of readers, the text must address all of them satisfactorily. It is therefore hardly surprising that an academic interested in legal theory might skip the fact-finding parts, for example. However, these parts are not intended for an academic audiencethey are needed so that the parties’ counsel see that the judge has understood the case. The pressure on judges is considerable, because unlike the teams of drafters who produce legislation, judges work alone or with a few peers to compose their authoritative texts, and in case of doubt, they reasonably prefer to include rather than omit. Burrows concludes that longer judgments are actually better, reasoning as follows: ‘The reason that judgments on the law have become longer is because we have greater transparency of reasoning and greater rigour’ (Burrows op. cit.: 5). In fact, by providing even greater contextualisation and possibly drawing on reference to academic work, judges could promote a more objective approach to solving legal issues. What Burrows does think could be dispensed with are the ‘long passages cited from past cases’ (op. cit.: 6), which should be replaced by pithy summaries of the points raised. However, Justice Mortimer, writing in the Australian context where similar developments have occurred, argues that the trend towards including quotations from previous cases, facilitated by digital technology, is actually beneficial: ‘Where, in older cases, a report was cited with a pinpoint, the expectation was that the reader would go to the law report containing the case. Now, there is a tendency to quote the passage in the judgment itself.’ (Mortimer op. cit.: 287) In her view, this is positive, because it makes the judgment more self-contained and dispenses with the tiresome need to look up references.

10Regarding the increasing volume of documentation produced at the end of each court case, it is important to remember that this amount partly results from the use of separate judgments submitted by each judge: in current practice, three-judge (Court of Appeal) or five- seven- or even nine-judge (Supreme Court) panels give individual judgments, which are all reproduced in the documentation. Burrows concurs with Lady Arden (2015) in considering that single majority judgments should be preferred to separate ones, although Lady Hale (2010) provides several reasons why (short) concurring judgments might still be useful, including the need to allow judges to dissociate themselves from certain points in order to show a plurality of possible interpretations, or the desirability of adding distinct perspectives. As Hale points out, ‘Technically a simple concurrence is only agreeing with the outcome and the ratio, and not with everything said along the way, but this may not be generally known and in any case there is no harm in spelling it out’ (Hale 2010: 1).

11Interestingly for linguists, Burrows (op. cit.) concludes his account by advocating the use of a distinctive personal style when writing judgments, quoting Lord Rodger: ‘one moral might be that, in judgments as in most other literary endeavours, the safest thing to do with purple passages is to cut them out. But then life would indeed be dull if we only did what was safe’ (Rodger 2002: 246).

12I would like to emphasise that this expanded discussion of chapter 4 is not intended as a criticism of the book, but rather as an appeal to researchers in languages for specific purposes (LSP) and plain language to give serious consideration to the practitioner perspective, and to consider the contextual pressures, multiple readerships and different communicative intentions that may shape a professional genre and its specific instantiations at any given time.

13Returning to my account of the book, I will now turn to chapter 5, in which Williams examines an area where legal language directly impacts on the general public, namely the ‘terms and conditions’ (T&C) that form part of all commercial agreements and that we as consumers are constantly being asked to accept when entering any online transaction. Since this type of document is a product of the Internet age, there is no previous corpus for comparisons to be drawn. However, this does not mar the chapter as a whole. What emerges is a striking picture: in standard T&C from banking or website use, which are now a feature of our everyday life, sentences are extremely long (ranging from 31 to 57 words), unfamiliar pro-forms (particularly ‘the foregoing’) are quite common, pronominal adverbs are still found (628 per million words), and pronouns and possessives are mainly masculine (he/his). Regarding the use of the passive, there appears to be a difference between texts aimed at consumers and those intended to be read by businesses, with a certain trend towards a more ‘approachable’ style in the former: important legal relationships are even expressed in terms of ‘we’ and ‘you’ (i.e. ‘if you provide a valid email address to us then you warrant to us that you are entitled to receive email to such email address’). ‘Shall’ is still very frequent in T&C, occurring once every 153 words and amounting to the 21st most frequent word throughout. Interestingly, the convention of using capitals for nouns that have been defined (Purchaser, Vendor, etc.) persists, but that of omitting the definite article in such cases appears to be changing. One interesting point is that some drafters are starting to adopt a more engaging style when addressing customers, even using contracted forms (‘If you’d like some advice or a friendly chat’). However, as Williams notes, this does not occur when obligations are being set out, when ‘shall’ or ‘must’ are preferred. The author concludes that T&C are changing, particularly in the case of documents addressing clients, and that there are ‘encouraging signs that the language of contracts may be on the threshold of some epoch-making changes’ (p. 169). The only issue I have with this is that this chapter, like the previous one, makes a certain underlying assumption about what the language of contracts should be like (i.e. ‘plain’, ‘concise’). Although the need for clarity is clear, it would also be interesting to obtain some insider insights from practitioners (lawyers, law firms, companies) about issues such as why contracts seem to become longer by the year, how decisions are made to adapt language to different audiences, or what (legal or social) consequences such modifications are perceived to have.

14The final chapter takes up some of the ideas that have been mentioned in passing throughout the volume and develops them further. The issue of design, briefly touched upon in the early chapters, is here discussed further, with some speculation as to whether visual elements should be included to facilitate clear comprehension. The examples provided, such as a graphic representation of a clause on Risk and Title from a Shell marine division contract, and a timeline from a Buzzsumo contract, are well chosen, showing how formats that most people are familiar with from other areas of life can be brought in to improve clarity in legal relations. It is fairly surprising, however, to those of us in applied linguistics, that no space is dedicated here to other visual approaches based on the schematic organisation of text, such as the influential notion of ‘easification’ proposed by Bhatia (1983) and later taken up by Langton (2006), which might offer a partial solution to problems faced by legal drafters in both the public and private spheres.

15Williams concludes that ‘the novelty value of plain language in the legal sphere may have worn off, but much still remains to be done despite a number of noteworthy achievements in certain areas’ (p. 192). He is obviously right when he speaks of an evolving understanding of what ‘plain language’ might mean, since visual presentation and recourse to image, for example, were probably not on the minds of the early plain language campaigners. Moreover, it would be difficult to object to the movement’s driving commitment to greater accessibility and accountability on the part of legislators and lawyers. This volume provides a thorough discussion of the issues and affords new insights into what is really happening in the UK legal world, based on abundant empirical evidence and a wealth of useful references. The book confirms what those of us involved in teaching and translating have long suspected: the spheres of law controlled by public services tend to have a stronger commitment to accountability in general and successful communication with the public in particular. It would be interesting to complement this volume with evidence from other countries and indeed other languages, to explore how far the patterns described here are mirrored elsewhere. It could also be useful to look further into the design and use of technological applications that facilitate plain language in practice (see, for example, da Cunha 2021). As I have argued in my account of the chapter on judgments, it might also be extremely valuable to gain practitioner perspectives on the implications of using plain language (or not), and of current changes to legal language and genres in general.

16Finally, from the perspective of LSP teachers and particularly those of us involved in teaching legal English, the book also serves as a reminder that change is slow, and that the language used in the area of private law, particularly contracts, terms and conditions, and so on, has changed very little. One priority in the training of future lawyers in non-English-speaking countries is that they should be prepared to tackle legal documents written in English (Breeze 2015). Today, this still means that they need to acquire specific reading skills to interpret long sentences and understand lengthy documents efficiently. They also still need to comprehend archaic systems of reference and be familiar with the traditional uses of ‘shall’ and ‘may’. Moreover, since one of their roles may be that of linguistic mediator, explaining technical material to non-expert clients, they should learn appropriate techniques to express the points made in such documents clearly to laypeople.

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Bibliographie

Arden, Mary. 2015. Common Law and Modern Society: Keeping Pace with Change. Oxford: Oxford Academic.

Bhatia, Vijay K. 1983. “Simplification v. easificationthe case of legal texts”. Applied Linguistics 4/1, 42–54.

Breeze, Ruth. 2015. “Teaching the vocabulary of legal documents: A corpus-driven approach”. ESP Today 3/1, 44–63.

Breeze, Ruth. 2020. “People engaging with justice: Petitions to the Scottish Parliament”. International Journal for the Semiotics of Law-Revue Internationale de Sémiotique Juridique 35, 431–454.

Burrows, Andrew. 2021. “Judgment-writing: A personal perspective”. Address to Annual Conference of Judges of the Superior Courts in Ireland. Retrieved from: <https://www.supremecourt.uk/news/speeches.html> on 31 December 2022.

da Cunha, Iria. 2022. “Un redactor asistido para adaptar textos administrativos a lenguaje claro”. Procesamiento del Lenguaje Natural 69, 3949.

Cooper, Jeremy. 2015. Guide to Reason Writing in Tribunals. London: Judicial College.

Hale, Brenda. 2010. “Judgment writing in the Supreme Court”. UK Supreme Court Blog. 25 October. <http://ukscblog.com/judgment-writing-in-the-supreme-court-brenda-hale/>

Langton, Nicola. 2006. “Cleaning up the Act. Using plain English in legislation”. In Wagner, Anne & Sophie Cacciaguidi-Fahy (Eds.), Legal Language and the Search for Clarity. Bern: Peter Lang, 361–390.

Mortimer, Debbie. 2018. “Some thoughts on writing judgments in, and for, contemporary Australia”. Melbourne University Law Review 42/1, 274297.

Rodger, Alan. 2002. “The form and language of judicial opinions”. Law Quarterly Review 118, 226–47.

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Notes

1 ‘Clarity International’. 2022. Clarity International. Retrieved from <https://www.clarity-international.org/> on 31 December 2022.

2 ‘Judicial College’. 2022. Courts and Tribunals Judiciary. Retrieved from <https://www.judiciary.uk/about-the-judiciary/training-support/judicial-college/>on 31 December 2022.

3 I would like to thank Upper Tribunal Judge West for his comments on the language of judgments, and for the references to Burrows, Arden and Mortimer.

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Ruth Breeze, « Christopher Williams, The Impact of Plain Language on Legal English in the United Kingdom »ASp, 83 | 2023, 34-45.

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Ruth Breeze, « Christopher Williams, The Impact of Plain Language on Legal English in the United Kingdom »ASp [En ligne], 83 | 2023, mis en ligne le 20 mars 2023, consulté le 16 juin 2024. URL : http://journals.openedition.org/asp/8315 ; DOI : https://doi.org/10.4000/asp.8315

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Ruth Breeze

Instituto Cultura y Sociedad, University of Navarra, Spain

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