Plain Words (34 page)

A choice does sometimes have to be made between the simplicity that conveys a ready meaning and the elaboration necessary to a precise one. In Parliamentary Bills, Statutory Orders and other legal documents the choice is likely to be unavoidable. Those who are to be held irrevocably to meaning what they say must be very careful to say what they mean.

Eric Partridge slips into confusing what is unavoidable inelegance in legal English with the faults of the ordinary official, when, in
Usage and Abusage
, under the heading ‘Officialese', he quotes from an article in a newspaper making fun 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 (
e
) of section twelve.

If example were needed to show that legal language is not always elegant or luminous, these few lines would serve well enough. But that needs no proof; everyone knows it.
*

Moreover with the whole Act before you (and you cannot expect to understand excerpts from it otherwise), the meaning conveyed by the quotation above 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.

A real difficulty did arise over this Act, but not because of any obscurity in the words quoted by Partridge. The trouble was with the penumbra of meaning round the word
place
used in another section, to which this one refers. The court held that this penumbra was not as large as had been supposed. The person who drafted the Act had naturally assumed that, as it covered both sales in shops and sales in places that are not shops, its provisions were complete. But what of 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 that the bit of ground on which it happens to be standing is not a place either. Sales of ice cream from a tricycle were therefore outside both categories, and the seller escaped the meshes of the Act. This curious instance of the waywardness of words shows how hard it is for the drafters of Acts to foresee every possible path down which their choice of expression may lead the judicial mind. It also provides an illustration of the truth that legal ambiguities are caused more often by diction being over-simple than over-elaborate.

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:

This Order permits launderers of wiping rages to add 11½ per cent to the charges they were making during the week beginning the 31st August, 1942, for such work.

That statement is immediately intelligible. Why was it not possible for the Order itself to 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:

(i) basic charge means in relation to services to which this Order applies,

(
a
) the charge 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-paragraph (
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.

Why then, it may be asked, did the amending Order not repeat these definitions, and so make all clear? Because the definitions are so complicated that simply giving them again as amended (re-enactment of the Order) 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, merely to discover in the end that the only change was in the figure. Moreover, the two volumes of Statutory Rules and Orders for 1945 already contain no fewer than 3,000 pages. No one would ask for more.

The reader may be provoked into thinking that the washing of wiping rags can hardly be worth even the lavishness of words that it already receives. 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.

A well-meant attempt was made by the minister in charge of the Bill that became 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. But simplicity proved to have been bought at such a 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 thirty-eight pages to explain the phrase and cite the cases on it. One of them concerns a worker who suffered
burns as a result of ‘petrol used for cleaning greasy hands near stove': though the injury took place at work, how definitely could it be said to have arisen, in the simple words of the Act, ‘out of and in the course of employment'?

Note
. After Gowers had come under fire for this defence of inelegant legal English, he decided in a revision of his work, ‘by way of redressing the balance a little', to cite a 1943 article from the
Spectator
that gave what he called a ‘remarkable' example of the reaction that legal drafting could provoke in a reader:

My attention has been called (I have just invented this serviceable phrase) to Statutory Rules and Orders 1943 No. 1216, issued by the Ministry of Supply. You can buy it from the Stationery Office for a penny. Its operative clause runs thus:

1. The Control of Tins Cans Kegs Drums and Packaging Pails (No. 5) Order, 1942(
a
), as varied by the Control of Tins Cans Kegs Drums and Packaging Pails (No. 6) Order, 1942(
b
), the Control of Tins Cans Kegs Drums and Packaging Pails (No. 7) Order, 1942(
c
), the Control of Tin Cans Kegs Drums and Packaging Pails (No. 8) Order, 1942(
d
), and the Control of Tins Cans Kegs Drums and Packaging Pails (No. 9) Order, 1942(
e
), is hereby further varied in the Third Schedule thereto (which is printed at p. 2 of the printed (No. 6) Order), in ‘Part II. Commodities other than Food', by substituting for the reference ‘2A' therein, the reference ‘2A(1)'; and by deleting therefrom the reference ‘2B'.

This is excellent news, that will gladden the heart of every public-spirited citizen. Why the Ministry of Supply could not leave it at that is unimaginable. Jettisoning gratuitously the sound and time-honoured principle that a Government Department never explains, it adds—quite incredibly—an Explanatory Note, which reads:

    The above Order enables tinplate to be used for tobacco and snuff tins other than cutter-lid tobacco tins.

What is to be said of this unwarrantable insult to the national intelligence? What kind of people do they think we are? Do they suppose we can't read plain English? ~

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First published by Particular Books 2014
Published in Penguin Books 2015

Text revisions and updates copyright © Rebecca Gowers, 2014

The moral right of the reviser has been asserted

Grateful acknowledgement is made to Faber & Faber Ltd for permission to quote from ‘Little Gidding' by T. S. Eliot

ISBN: 978-0-241-96035-6