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Clarity
Number 53 May 2005
Journal of the
international association
promoting plain legal language
Editor in chief:
Michèle Asprey
Guest editor for this issue:
Catherine Rawson
In this issue
Multilingual legislative drafting
William Robinson
How the European Commission drafts legislation
in 20 languages 4
Juliet Weenink-Griffiths
The European Central Bank’s approach to
drafting legislation in 20 languages 11
Duncan Berry
The effect of poorly written legislation
in a bilingual legal system 15
Emma Wagner
Producing multilingual legislation in Switzerland 18
Ian Frame
Linguistic oddities in European Union legislation:
don’t shoot the translator 21
Plain language in non-English speaking
and multilingual countries
Catherine Rawson
Just fix the English 25
Christopher Williams
Progetto Chiaro! and the
plain language movement in Italy 30
Cheryl Stephens
Canada’s multilingual plain language projects 33
Myla Kaplan
Legalese of biblical proportions:
some observations on legal language in Israel 36
Maggie Jo St John
Citizen’s Language: Plain language in Mexico 39
Daniel Cassany
Plain language in Spain 41
Vijay Bhatia
Plain English in Asia 45
Kyal Hill
Legal English in Japan: a translator’s perspective 48
Lei-Theng Lim
Plain English in Singapore:
preparing the next generation of lawyers 51
Other ways of tackling clear writing
Mike Unwalla
ASD simplified technical English 54
Margaret van Naerssen
A forensic test of a Pennsylvanian contract 57
Book reviews 63
Clarity and general news 65–72
Conference announcements & reports 65
2 Clarity 53 May 2005
Country representatives
Australia: Christopher Balmford
Words and Beyond Pty Ltd
1 Barrack St, Sydney NSW 2000
02 8235 2337 (fax 9290 2280)
christopher.balmford@cleardocs.com
Brazil: Dominic C. Minett
Lex English Language Services Ltda
Rua Humberto I, 298
Bloco B, Sala 2, 2o andar, Vila Mariana
Sao Paulo, SP 04018-030
011 5084 4613 (phone & fax)
dominic@lexenglish.com.br
Canada: Philip Knight
1074 Fulton Avenue
W. Vancouver, BC V7T 1N2
604 628 0387 (fax 925 0912)
philknight1@mac.com
France: Anne Wagner
Département Droit
Université du Littoral Côte d’Opale
21, rue Saint-Louis, BP 774
62327 Boulogne sur Mer Cédex
03 21 99 41 22 (fax 21 99 41 57)
valwagnerfr@yahoo.com
Hong Kong: Wai-chung Suen
Department of Justice
9/F Queensway Govt Offices
66 Queensway, Admiralty
2867 4171 (fax 2845 2215)
wcsuen@doj.gov.hk
India: Sandeep Dave
4 Kanch, Plot No 191, 11th Road
West of Khar, Mumbai 400052
22 2600 0550 (phone & fax)
sandeepdave@hotmail.com
Israel: Myla Kaplan
POB 56357, 34987 Haifa
054 3132010 (fax 04 8110020)
mylakaplan@yahoo.com
Italy: Christopher Williams
Via Taranto 33
70031 Andria (BA)
0883 554171
cjwilliams72@hotmail.com
Japan: Kyal Hill
Apartment 706 Presle Tamaishi
4-15-28 Toshima, Kita-ku
Tokyo 114-0003
080 3415 2082 (fax 03 5390 1700)
kyal.hill@mhmjapan.com
Malaysia: Juprin Wong-Adamal
Department of Human Resources Development
7th Floor, Block A, Wisma MUIS
88999 Kota Kinabalu, Sabah
88 218722 ext. 199 (fax 88 211 554)
Juprin.Adamal@sabah.gov.my
New Zealand: Richard Castle
148A Tinakori Road
Thorndon, Wellington 6002
04 938 0711 (fax 934 0712)
schloss@paradise.net.nz
Philippines: Victor Eleazar
4/F Unit C-2 Marvin Plaza Building
2153 Chino Roces Avenue
Makati City 1200
02 897 1681 (fax 897 5257)
attyvye@msn.com
Singapore: Lei-Theng Lim
Faculty of Law
National University of Singapore
13 Law Link, 117590
6874 6464 (fax 6779 0979)
leitheng@nus.edu.sg
South Africa: Adv Annelize Nienaber
Law Faculty, University of Pretoria
Pretoria, 0002
012 420 2634 (fax 420 4524)
anienabe@hakuna.up.ac.za
Sweden: Barbro Ehrenberg-Sundin
Justitiedepartementet
SE-103 33 Stockholm
08 405 48 23 (fax 20 27 34)
barbro.ehrenberg@justice.ministry.se
UK: Paul Clark
Cripps Harries Hall
Wallside House
12 Mt Ephraim Road
Tunbridge Wells
Kent TN1 1EG
01892 515121 (fax 01892 544878)
pec@crippslaw.com
USA: Prof Joseph Kimble
Thomas Cooley Law School
PO Box 13038
Lansing, Michigan 48901-3038
1 517 371 5140 (fax 334 5781)
kimblej@cooley.edu
Other European countries:
Catherine Rawson
legal_easy@hotmail.com
All other countries:
Please contact the USA representative
Patrons The Rt Hon Sir Christopher Staughton and The Hon Justice Michael Kirby
Founder John Walton
Committee
President: Professor Joseph Kimble (kimblej@cooley.edu)
Members: Country Representatives plus Simon Adamyk, Mark Adler, Michèle Asprey, Peter Butt,
Sir Edward Caldwell, Robert Eagleson, Nicole Fernbach, Robert Lowe, John Pare,
John Walton, Richard Woof.
Clarity 53 May 2005 3
An international association
promoting plain legal language
www.clarity-international.net
President
Professor Joseph Kimble
kimblej@cooley.edu
Clarity … the journal
Published in May and November
Editor in chief
Michèle Asprey
PO Box 379 Milsons Point
NSW Australia 1565
Fax: 61 2 9252 0189
asprey@plainlanguagelaw.com
Guest editors for next issue
Nicole Fernbach
Juricom, Inc.
Phone: 1 514 8454834
nicole@juricom.com
Edward Caldwell
Law Commission
Phone : 44 20 7453 1206 (direct)
or 1238 (secretary)
edward.caldwell@lawcommission.gsi.gov.uk
Advertising rates
Full page: £150
Smaller area: pro rata
Minimum charge: £20
Contact Joe Kimble, kimblej@cooley.edu
Copyright policy
Authors retain copyright in their articles.
Anyone wanting to reproduce an article in whole
or in part should first obtain the permission of the
author, and should acknowledge Clarity as the
source of the original.
This issue
This issue reviews plain language initiatives
around the world, particularly in non-English
speaking countries and multi-lingual countries.
About half the articles discuss the complexities
of drafting legislation in more than one language.
Most of the others deal with the challenges of trans-
lating and editing texts written by non-native
speakers of English. Two articles deal respectively
with a linguist’s forensic test of the “plainness” of a
contract, and “simplified English”—the plainer-
than-plain international writing standard used by
the aero industry to promote safety.
Getting news of what is going on around the world
has taken imagination and persistence. How do
you find someone to ask? Having found a likely
person, how do you persuade that person to write
for Clarity?
Despite the bumper size of this issue, its overview is
not comprehensive. Some countries apparently they
do not have plain language initiatives in the public
or private sectors. Other countries’ fledgling plain
language initiatives seem to have lost momentum,
leaving little of consequence to talk about. In some
cases I was unable to find anyone who would
respond or who was willing to contribute.
But Asia is awakening to the benefits of plain
language. In February, the Malaysian Securities
Commission published The Plain Language Guide for
Prospectuses. And last year the Hong Kong Mortgage
Corporation, a statutory authority, issued HK’s first
plain language prospectus. Readers will be able to
read about this experience in Clarity No 54.
The Clarity and Obscurity in Legal Language confer-
ence being held in France in July (see pages 65–67)
has two sessions reviewing plain language around
world. We hope that this issue of Clarity will act as
a “tickler” for the conference, encouraging you to
come along and share your experiences.
Finally, if you know of a plain language initiative
not mentioned in this issue, please email me about it
because Clarity is keen to learn of developments and
hear of your experiences.
Catherine Rawson
legal_easy@hotmail.com
Catherine Rawson helps multi-
lingual organisations ensure that
their staff write clear, concise,
readable English, regardless of
their native language. By using
tailored software to reinforce
Catherine’s plain English
training, her clients are able to
monitor the quality of their
English communications.
4 Clarity 53 May 2005
William Robinson
Coordinator in the Legal Revisers Group of the European
Commission’s Legal Service, Brussels, Belgium
European Union (EU) legislation applies to 450 million
people in 25 countries and exists in 20 languages which
all have equal status. This article describes how the
European Commission drafts legislation, what it has
already done to improve drafting quality and what more
it could do.
The article expresses the author’s personal views and does
not necessarily reflect those of the Commission. It is far
from exhaustive and focuses on actual drafting of Euro-
pean Community legislation in the Commission, not what
happens before or after.
The European Community (EC)
legislative process
Under the EC Treaty as amended over the years
most basic Community legislation is adopted jointly
by the European Parliament, directly elected by EU
citizens, and the Council, representing the govern-
ments of the Member States, with only a few fields
such as taxation, agriculture, and fisheries being
reserved to the Council alone. But in almost all cases
the proposal for legislation—the first draft of the
measures—must come from the Commission, and
without such a proposal the other institutions
cannot act.
Also under the EC Treaty, most of the detailed rules
to give practical effect to the basic legislation are to
be adopted by the Commission, which must gener-
ally act with the approval of a committee composed
of representatives of the Member States.
The EU has 20 official languages
Article 290 of the EC Treaty states:
The rules governing the languages of the insti-
tutions of the Community shall … be determined
by the Council, acting unanimously.
Those rules were laid down by Regulation No 11, as
amended by successive Acts of Accession, under
Article 1 of which:
The official languages and the working lang-
uages of the institutions of the Union shall be
Czech, Danish, Dutch, English, Estonian,
Finnish, French, German, Greek, Hungarian,
Italian, Latvian, Lithuanian, Maltese, Polish,
Portuguese, Slovak, Slovenian, Spanish and
Swedish.
Article 4 provides “Regulations and other documents
of general application shall be drafted in the twenty
official languages”, thus indicating that there is not
simply one original language version and 19 trans-
lations. Under Article 5, the Official Journal of the
European Union must be published in all 20 languages.
Exceptionally, because of difficulties regarding
translation into Maltese, Regulation (EC) No 930/
2004 lays down that, for a limited period, acts need
not be drafted and published in Maltese. Irish is not
an official language under Regulation No 1, but the
Treaties themselves are authentic in Irish.
Although all 20 official languages are the working
languages of the institutions according to Regu-
lation No 1, the institutions’ day-to-day work can
hardly be carried on in all of them simultaneously.
Different institutions have chosen different practical
solutions, a number of which have faced legal or
political challenges. Some institutions have opted
for a single internal working language: French for
the European Court of Justice, English for the Euro-
pean Central Bank, for example. The European
Commission has a policy of using three languages
for internal purposes: English, French and German.
In practice, French and English are the main lang-
uages of internal communication and drafting.
Formerly French enjoyed a clear predominance but
in recent years the balance has shifted and now
within the Commission most drafting is done in
English.
How the Commission drafts legislation
Step 1—First draft written by technical experts
Legislation is drafted by the technical department
for the sector concerned, not by a corps of drafting
specialists. The first drafts are generally written not
by lawyers but by technical experts such as econ-
omists or scientists: veterinarians draft animal
health rules and so on. Until recently, new arrivals
were not even given much in-house training in
drafting and would have to depend on their own
experience and national background and the
experience of colleagues.
How the European Commission
drafts legislation in 20 languages
Clarity 53 May 2005 5
Drafters must write in either English or French and
their choice is determined by the language used in
their department. So most write in a foreign lang-
uage, and it is harder for them to write exactly what
they want to say or to express their ideas in the
clearest possible way.
One result is a tendency for drafters to follow prece-
dents. It is much easier for non-native speakers of a
language to stick to provisions or phrases that have
been used in earlier legislation. Non-lawyers gain
some comfort from the fact that provisions or phrases
have been used before and therefore—they assume—
cannot be wrong. Adherence to precedents drawn
from past legislation is all the more tempting since
they exist in all the languages. All those dealing
with the new draft in English or French will be able
to find out what it will look like in their own lang-
uages. Translation will probably take less time and
present fewer problems because the translators can
rely in part on the old text.
Unfortunately the precedents chosen may not be
best suited to the new circumstances. Because the
drafters are not lawyers, they may not always ana-
lyse sufficiently the circumstances they are dealing
with and those dealt with by the precedent. And
because they have to work in a foreign language,
they are not in a position to judge the linguistic
quality of the precedent they have chosen. Moreover,
drafting standards have evolved and over-reliance
on precedents tends to perpetuate past faults and
weaknesses.
Step 2—Consultation within the Commission
Once the technical department has prepared its
preliminary draft, it is submitted to the other
Commission departments concerned as part of the
internal consultation procedure. The Commission’s
Legal Service has to be consulted on all draft legis-
lation. Lawyers specialising in the sector concerned
will examine the draft for compliance with the law
and coherence with other legislation in the field.
The Commission’s legal revisers, who all have dual
legal and language qualifications, will examine it
for compliance with the rules on form and presenta-
tion of legislation, in particular the Joint Practical
Guide of the European Parliament, the Council and the
Commission for persons involved in the drafting of
legislation within the Community institutions 2.
At this comparatively early stage when the draft
exists in only one language, far-reaching changes
can be suggested if the legal revisers believe them
necessary. Unfortunately the strict, short deadlines
under the internal rules and the volume of work
prevent the revisers from always achieving the
standard they would like. The formal Legal Service
response is drawn up by the lawyer for the sector
concerned and generally—but not always—incor-
porates all the legal revisers’ suggestions. The law-
yer will sometimes drop some of the legal revisers’
suggestions in deference to the wishes of the
originating department.
If the originating department chooses, it may also
consult a team of editors in the Translation
Directorate-General who will suggest linguistic
improvements.
After those consultations it is up to the originating
department to take account of the comments
received. Generally the Legal Service’s suggestions
must be followed although it does not have the
power to block a text altogether.
Step 3—Translation into the other
official languages
The text must then be translated into all the official
languages by the Translation Directorate-General,
before formal adoption by the Commission. Some-
times the originating department has already begun
the translation process before receiving the Legal
Service’s suggestions. It may then be reluctant to
accept any drafting changes because of the difficulty
of having the changes made in all the other lang-
uage versions by the Translation Directorate-General,
or else it may have the changes made by members of
its staff who are not trained translators: a hazardous
course.
The legal revisers may have another opportunity to
revise the text at this stage. Revision may be requested
by the originating department, often at the instigation
of the Legal Service or of the Commission’s Secretariat-
General, which has general responsibility for ensuring
that procedures are properly followed. Since the text
has passed through extensive consultations, is often
the fruit of difficult compromises, has been translated
into all the official languages and is to be adopted in a
matter of days, the revisers must confine themselves to
correcting formal or terminological errors and ensur-
ing that the legal scope is exactly the same in the
different language versions.
What happens when the Commission
has adopted a legislative proposal?
The Commission’s proposal is submitted to the
European Parliament and the Council, where it
passes through those institutions’ internal pre-
adoption procedures. In the European Parliament it
is considered by a committee of Members of the Euro-
pean Parliament, which submits a report to the
plenary. In the Council it is considered by working
groups consisting of experts from the Member States.
Each institution has its own team of legal revisers
who will also ensure that the drafting rules are
complied with. At the more advanced stages of the
procedure, however, it is harder to propose restruc-
turing or rewriting for the sake of clarity and the
revisers’ primary responsibility is to correct
mistakes and ensure that the various language
versions correspond exactly.
6 Clarity 53 May 2005
Particular features of EU law
Multilingualism
A unique feature of EU legislation is that it exists in
20 language versions, each of which has equal force.
This fact and the multilingual drafting process are
the source of certain complications.
The handicap of having to work in a foreign lang-
uage weighs heavily on the authors of the first
drafts but it affects the subsequent stages of the
procedure too. Most of those involved in discus-
sions on that draft will also be working in a foreign
language and will have extra difficulty, first in
understanding what is in the draft, and then in
explaining how they want it altered. The resulting
text must then be translated, which creates scope for
misunderstanding, especially if the original text is
not clear. The text will also undergo various word-
processing manipulations as it passes from one
department to another. At all these stages mistakes
can creep into the various versions. In a mono-
lingual system, there is less scope for linguistic
errors in the first place, and most errors that do slip
in will tend to be corrected by those involved at later
stages, right up to the level of the minister who
signs the final text. In a multilingual system, few of
those involved at later stages will actually be native
speakers of the language version concerned and so
such spontaneous correction is less likely.
It may happen that a term used in one language
leads to a misunderstanding in another. In Regu-
lation (EC) No 141/20003, the term “orphan drug”
is used in a technical sense (known to the trade
circles) of a drug which is used to treat a rare
disease and for which the manufacturer receives
special tax credits and marketing rights as an
incentive to develop the drug. However, a German
expert has assured me that she has seen it trans-
lated as “medicine for children without parents”!
In the Koschniske case4, the Court of Justice was
asked whether “diens echtgenote” (Dutch: “whose
wife”) in a provision of a regulation on social secur-
ity could also be understood to mean a married
man. The Court held that it could, by interpreting it
in the light of all the other language versions, which
used a word such as spouse to cover both sexes, as
well as the purpose of the provision and the prin-
ciple of equal treatment.
In June 2004 a Directive on jams, jellies and marma-
lades5 had to be amended because the German
version had used the terms “Konfitüre” and “Marme-
lade” for “jam” and “marmalade” respectively,
while in certain local markets in Austria and
Germany the term “Marmelade” is traditionally used
for “jam” and the term “Marmelade aus Zitrusfrüchten”
is used for “marmalade”.
A recent example of the pitfalls of the system was
the native-English-speaking author who refused to
accept the revisers’ correction of “ton” to “tonne”.
He said that “tonne” had been in all the documents
submitted to him but he had checked in an English
dictionary and the correct spelling in English was
“ton”. He was clearly unaware that a tonne or
metric ton is 1 000kg while a British ton is 2 240lb
(1.016 tonnes).
To ensure that the legal effects of an act are identical
in all languages the various language versions
must, as far as possible, have the same form. It is not
permissible to adopt a solution to a drafting problem
that works only in one language. For example alpha-
betical order cannot normally be used because items
would appear in a quite different order in most
languages.
During the drafting of the Constitution one thorny
problem was the names for the various components
of the Court of Justice. Some languages, such as
French, have two words (“cour” and “tribunal”)
which on their own convey a hierarchy which could
not be reflected by two words in some other lang-
uages, including English. Moreover, in some
languages two words similar to the French words
exist but the hierarchical order is not clear. The
solution finally adopted was to call the lower body
“general court” or the equivalent except in lang-
uages where single words were enough to convey
the hierarchical relationship.
Multilingualism is not just a complicating factor. It
brings benefits too: the original text is subjected to a
particularly close scrutiny as all the translators and
revisers consider how the meaning should be ren-
dered in their own languages. Mistakes or lack of
clarity or consistency in the original are often
brought to light by the translation process and
corrected.
Multiculturalism
EU legislation becomes more complex because it has
to deal with many different cultures and divergent
local conditions. The animal health rules contain
many examples.
The rules on ear tags on bovine animals had to take
account of the particular cases of bullfights in some
Mediterranean countries and the custom in some
Nordic countries of displaying animals in tradi-
tional rural settings, in farm museums for example.
When pet passports were introduced to make it
easier for citizens to travel with their pet animals,
they catered not just for cats and dogs, which are
common pets throughout Europe, but also for
ferrets, much to the bemusement of countries with
no ferreting tradition.
How the European Commission
drafts legislation in 20 languages
(continued)
Clarity 53 May 2005 7
During a case at the Court of Justice in which the
French word “chasseurs” had to be translated into
English, the translator pointed out that in England
hunting would conjure up images of red-coated
horse riders in pursuit of inedible foxes whereas in
France hunters are often local farmers and workers
out with a gun and a dog shooting birds for the pot.
Taking account of multiculturalism is a dynamic
process since local conditions are evolving at dif-
ferent speeds in different countries. Even areas
where there was once a large degree of uniformity
across the Member States may become more complex.
For example, marriage has generally been regarded
as an institution with common core features across
the EU. Since the introduction of same-sex
marriages in the Netherlands, however, some people
there find it is no longer enough to say they are
married but feel it necessary to specify the sex of
their partner.
Negotiated law
The first drafts of legislation are not of the highest
quality and the text becomes even heavier through
the cumbersome process of multilingual committees
whose members are making textual suggestions in
one language but “thinking” in another, whether
their native language or one in which they formerly
worked.
At a very early stage the draft becomes the expres-
sion of the policy and many subsequent attempts to
influence the policy consist of textual suggestions
by bodies largely made up of non-native speakers of
the drafting language.
Changes are made with a view to achieving policy
ends rather than producing clear, simple and pre-
cise legislation. It sometimes happens that a provision
is deliberately left vague (known in French as flou
artistique) to paper over a failure to reach full agree-
ment. This is a situation addressed by the Joint
Practical Guide in point 1.3:
Provisions that are not clear may be interpreted
restrictively by the Community courts. If that
happens, the result will be just the opposite of
what was intended by the incorporation into the
text of grey areas intended to resolve problems
in negotiating the provision.
The Joint Practical Guide cites the example of the Pro-
Sieben case in which the Court concurred with the
conclusion of Advocate General Jacobs, after having
applied all the available methods of interpretation,
that two opposing interpretations were possible6.
AG Jacobs stated (at Point 53):
in the present case, … the provision in question
appears to be, in the light of the arguments ad-
vanced on both sides, not only equally open to
two conflicting interpretations, but perhaps
deliberately ambiguous. An ambiguity—and
particularly a deliberate ambiguity—cannot be
invoked to restrict a fundamental freedom.
Lack of continuity in the drafting process
The European drafting process differs from many
national systems in that there is not a single depart-
ment with responsibility for total quality. Texts are
largely drafted by committee with the familiar
danger that all contribute but no one single person
assumes full responsibility.
The danger exists within the Commission itself
because so many different departments, each with
different priorities, are involved in the drafting
process. In 2001 an attempt was made to tackle part
of the problem by adopting guidance on the respon-
sibilities of those involved in the drafting process
within the Commission7.
The danger is aggravated by the fact that for all
basic legislation, the texts produced by the Com-
mission pass to the European Parliament and the
Council, where they may be substantially changed
by committees and working parties before adoption.
Steps taken to improve drafting?
As long ago as 1992 the European Council adopted
the Birmingham Declaration including the strong
message: “We want Community legislation to be
clearer and simpler”.
At the Amsterdam Intergovernmental Conference in
1997 the heads of State and of government adopted
Declaration 39 calling on the Community institu-
tions to adopt common guidelines for improving the
drafting of Community legislation and to take “the
internal organisational measures they deem neces-
sary to ensure that these guidelines are properly
applied”8.
On 22 December 1998 the institutions adopted an
Interinstitutional Agreement9 setting out 22 guide-
lines for drafting, based in large part on suggestions
from the Member States. The first guidelines include
general principles familiar to all drafters: draft in
clear, simple and precise terms; think of the addres-
sees; keep sentences and provisions short; use plain
language; be consistent both within one act and
between acts in the same field.
That agreement also listed the internal measures to
be taken.
The very first was to produce, in March 2000, the
Joint Practical Guide for persons involved in the
drafting of legislation. That guide was translated
into all the official languages and distributed within
the institutions. In 2003 it was published and put
on the EU’s website for legislation, EUR-LEX10. The
guide is quite short with less than 100 pages, laid
out in accessible form and illustrated by models and
8 Clarity 53 May 2005
examples of good and bad drafting. It is designed to
help all those involved in the legislative process,
those writing the first draft, those commenting on
drafts, the translators of the various language
versions and those negotiating the final text.
Secondly the institutions undertook to enable their
legal services and in particular their legal revisers to
make drafting suggestions earlier in the process.
The Commission’s legal revisers now have the
opportunity to revise all draft legislation as soon
as the originating department submits it to the other
Commission departments for approval, and they
handle some 2000 drafts a year.
The institutions also committed themselves to
providing drafting training to their staff. Since 2001
the Commission’s legal revisers have been offering
basic legislative drafting courses, which have been
attended by some 400 staff.
A computer programme has been introduced to
standardise the presentation and formatting of
legislation and to steer drafters in the right direction.
Contacts have been established with the Member
States to exchange views on drafting and ways to
improve legislation. The legal revisers of the three
institutions sometimes liaise with each other to
harmonise their practices and agree on common
solutions to problems.
At the end of 2003, the institutions adopted a new
Interinstitutional Agreement11 reaffirming their com-
mitment to the full application of the 1998 Agree-
ment and to “ensure that legislation is of good
quality, namely that it is clear, simple and effective”
(point 25). As part of efforts to make European legis-
lation more accessible, the institutions have also
adopted agreements on codification and recasting12.
Other possible steps
In 1995 an influential report on the quality of Com-
munity legislation was produced by a committee of
senior Dutch civil servants chaired by a former
judge at the Court of Justice, Judge Koopmans. One
of its suggestions, endorsed by other commentators,
was an independent body to review acts at the stage
of the Commission’s proposal or just before they
become law, on the model of the French Conseil
d’état or similar bodies in some Member States.
At the end of 2003 the United Kingdom Foreign and
Commonwealth Office presented a report examining
the drafting of EU legislation and identifying prob-
lems relating to the application and interpretation
of EU legislation in Member States13. It suggested an
EU Legislative Drafting Office, perhaps modelled on
the UK Parliamentary Counsel Office, independent
of present institutions, with responsibility for draft
legislation throughout the legislative process.
In January 2004 the four countries holding the rotat-
ing presidency of the European Council in 2004 and
2005 (the Netherlands, the United Kingdom, Ireland
and Luxembourg) launched a Joint Initiative on
Regulatory Reform14 to maintain the momentum in
implementing the Commission’s Action Plan on
simplifying and improving the regulatory environ-
ment. Other Member States have since backed the
initiative.
The standards by which EU legislation
has to be judged
At a Colloquium of the Association of the Councils
of State and Supreme administrative jurisdictions of
the European Union in The Hague in June 2004, it
was suggested that EU legislation should be judged
by different standards from national legislation. The
President of the Association, Mr. H. Tjeenk Willink,
Vice-President of the Dutch Council of State said:
The European legal order was devised to serve
diversity and pluralism and the EU’s legislators
must take this into account. Were some law intro-
duced in the name of the free market which made
it mandatory for all cafés in Europe to meet the
same requirements, it might denote a success for
that free market but it would spell failure for the
concept of Europe. Of Europe as a cultural and
social reality. “European legislation is not intend-
ed to take away the diversity of legal traditions,
methods and systems in the Member States, but
rather to shape their compatibility”.
This means that the EU’s legislators do not
necessarily play the same role as national ones.
While national legislators focus primarily on
how to find uniform solutions to what are
experienced as common problems, European
legislation must define the scope for diverse
solutions. National legislators will often indi-
cate what must be done while EU legislators
will indicate what must be stopped.
Is it possible then that the lack of clarity and lack of
precision resulting from the process by which EU
legislation is adopted are not just unfortunate side-
effects of that process but are actually essential to
enable the system to work by giving the Member
States the leeway they need to adapt it to their own
legal systems? Perhaps in EU law the point of bal-
ance between fuzzy and fussy legislation is different
from that in national systems. Whatever the answer,
the acknowledged need for some leeway or “wriggle
room” cannot be treated as licence to be sloppy.
How the European Commission
drafts legislation in 20 languages
(continued)
Clarity 53 May 2005 9
Communicating the law
G.C. Thornton has written that the legislative
draftsman’s “task is not only to determine the law,
but also to communicate it” 15. At the 1990 Common-
wealth Law Conference, he suggested:
Communication depends on an overlap of the
linguistic experience of the sender and receiver
of the message. There must be a shared context
of both linguistic experience and social exper-
ience if ambiguities and other comprehension
problems are to be avoided or resolved.16
For European legislation, identifying a shared
context presents particular problems. While there is
perhaps some overlap of linguistic experience at the
level of the government representatives who nego-
tiate the texts, there is less overlap at the level of the
lawyers and civil servants in the Member States,
and still less in the case of the ordinary citizen.
A shared context of social experience must be
viewed in relative terms. While a person at one
geographical extreme of the Community may per-
ceive considerable cultural differences between his
or her social context and that of the other geograph-
ical extremes, those differences might appear quite
small to a person viewing the situation from the
other side of the world. Perhaps we Europeans are
too conscious of our differences and not enough
aware of the increasing amount that we have in
common.
Language
In view of the trends in language knowledge and
teaching in Europe, more of the institutions’ day-
to-day work will probably be done in English. The
problem of authors or negotiators thinking in French
(because they have been doing so for many years)
but drafting in English will tend to diminish. At the
same time, and partly as a result of that change, the
general standard of English amongst its staff will
probably improve.
This does not mean that EU English will come to
use only words in common use in the British Isles
and that those words will have the same meaning.
Indeed the Court of Justice has held that it is unsafe
to assume that words used in EU law have the same
meaning as in national law17. In fact EU English is
an international medium of communication
divorced from any one national culture.
Is it possible that, in the same way as EU legislation
has to be judged by different standards from nat-
ional legislation, EU English cannot be judged by
domestic standards in the British Isles? It is perhaps
indicative that a booklet published in English by the
EU institutions advising authors how to draft in
order to make sure translation is easier and more
faithful was based on a Swedish document which
in turn was a translation and adaptation of a
Finnish guide produced for Finnish domestic pur-
poses18. This “internationalisation” of English is
part of a wider trend, not just confined to the EU. In
England itself, Leeds Metropolitan University is
“launching a new MA in Teaching English as an
International Language in September 2005 which
will be staffed by a team of mainly non-native
speaker lecturers”19.
Euro-speak
On 2 September 2004 The Economist published a light-
hearted article in its Charlemagne column entitled
“Decoding a Euro-diplomat takes more than a dic-
tionary”. It looked at some of the language problems
in the institutions and concluded:
But ever-inventive Brussels is coming up with
a solution of sorts through the emergence of
“Euro-speak”—a form of dead, bureaucratic
English.
The joy of phrases like “qualified majority
voting”, “the community method” and “the
commission’s sole right of initiative” is that
they are completely meaningless to all ordinary
Europeans—whether in translation or in the
original. But, crucially, they are crystal-clear to
insiders.
The idea of Euro-speak dictionaries explaining to
outsiders what EU insiders are talking about is one
to be taken seriously20. There are precedents. Back in
1886 a guide to Indian English words called Hobson-
Jobson was published by Yule and Burrell to explain
new words such as “curry” and “juggernaut” that
we now accept without question in everyday Eng-
lish. A dictionary explaining the Euro-English
expressions listed by The Economist but also many
more such as “transposition” (the way European
directives are made part of national law) and “Com-
itology” (the system of committees of Member States’
representatives overseeing the Commission’s exer-
cise of the powers delegated to it) would certainly
help the “outsiders” now, even if it might seem
quaint in years to come.
A critical approach to the quality of language and
legislation in the EU is healthy. But critics should
ensure that they know what they are talking about
before they sound off. In 2004, BBC journalist John
Humphrys published a book entitled Lost for Words:
The Meaning and Manipulation of the English Lang-
uage, in which he blamed institutions like the EU for
the decline in standards of English. He com-
plained of the use of such words as “pertannually”
in the draft European Constitution and the fact that
when concerns were raised, the word was replaced
with “insubdurience”, an assertion picked up by
various reviewers. In fact those words did not exist.
According to Private Eye magazine, Humphrys had
simply been taken in by a spoof by Simon Hoggart
published in the Guardian newspaper in June 2004.
10 Clarity 53 May 2005
What more could be done?
The departments and staff of the institutions must
be made aware that even if imprecision, diplomatic
vagueness, linguistic slips and awkwardness are
inevitable and tolerable in their day-to-day commun-
ications, much higher standards must apply to the
drafting of legislation.
Moreover, while numerous routine management
laws may continue to be drafted by a production-
line process, special procedures may be needed for
drafting fundamental laws. Those could be entrusted
to specialist drafters who should be allowed the
extra time and resources necessary to produce a
quality product.
The Commission’s technical departments, which
under the present internal rules are responsible for
the quality of the first drafts, should each set up
their own drafting units (as called for in the 1998
Interinstitutional Agreement) to meet that responsi-
bility, facilitate all the work on the text downstream,
and pave the way for a better final product.
More generally, all departments and staff of the insti-
tutions should recognise the crucial importance of
effective communication and take language skills
more seriously, especially in the main internal
working languages, English and French. All staff
concerned should be offered advanced training in
those languages. Greater emphasis should be placed
on drafting as a specialist skill and all drafters
should be offered reinforced back-up, both by human
drafting specialists and by computer systems.
© W Robinson 2005
William.Robinson@cec.eu.int
1OJ 17, 6.10.1958, p385/58.
2<http://europa.eu.int/eur-lex/en/search/
search_lip.html>.
3OJ L 18, 22.1.2000, p1.
4Case 9/79 Wörsdorfer, née Koschniske v Raad van
Arbeid [1979] ECR 2717.
5OJ L 219, 19.6.2004, p. 8.
6Case C-6/98 ARD v Pro Sieben [1999] ECR I-7599.
7Communication on simplification and rationalisation
of the language process in Commission decision-
making procedures (SEC (2001) 2031).
8OJ C 340, 10.11.1997, p139.
9OJ C 73, 17.3.2000, p1.
10 <http://europa.eu.int/eur-lex/en/about/
techleg/index.html>. Paper copies may be
obtained from: <Juristes-reviseurs@cec.eu.int>.
11 OJ C 321, 31.12.2003, p1.
12 OJ C 102, 4.4.1996, p2 and OJ C 77, 28.3.2002, p1.
13 Implementation of EU legislation, an independent
study for the FCO by R. Bellis, available from:
<www.fco.gov.uk>.
14 <www.finance.gov.ie/viewdoc.asp?DocID=1804&
CatID=1&StartDate= 1+January+2004&m>.
15 Legislative Drafting, 4th edition, Butterworths 1996.
16 <www.plainlanguagenetwork.org/Legal/
lawdefn.html>
17 Case C-103/01 Commission v Germany [2003] ECR
I-5369
18 Writing for Translation, Translation Centre for the
Bodies of the European Union, 2003 ISBN 92-894-
6331-7.
19 Guardian Weekly, 17-23 September 2004.
20 English reference works already available include:
Bainbridge, T. and Teasdale, A.L., The Penguin
Companion to the European Union, London, Penguin,
1995; Leonard, D., The Economist Guide to the
European Communities, 8th edition, Profile Books;
Davies, E., Eurojargon: a dictionary of European
Union acronyms, abbreviations and terminology, 7th
edition, European Information Association.
William Robinson has
for many years worked in
the field of European law
and language, He started
his career in Luxembourg
as a legal translator at the
European Court of Justice
before moving to Munich
as a translator, reviser and
editor for the European
Patent Office. He then
returned to the Court of
Justice where he revised
translations of its judg-
ments and produced
guidance for English
translation. Since 1996 he
has been a legal reviser in the European Commission’s Legal
Service in Brussels revising draft legislation and working on
guidance and training for drafters.
How the European Commission
drafts legislation in 20 languages
(continued)
Clarity 53 May 2005 11
Juliet Weenink-Griffiths
Head of Institutional Legal Framework Section
Juristes-Linguistes Division, European Central Bank,
Frankfurt am Main, Germany
This is an overview of the European Central Bank’s
(ECB’s) Juristes-Linguistes Division (JLD): how it is
organised, its principal responsibility for producing
ECB legislation in the 20 official European Community
languages, and its working procedures and quality
standards. The article also considers future challenges for
the JLD.
The views expressed here are the author’s and are not
necessarily shared by her employer, the ECB. The article
concentrates on the drafting and publishing of legal acts
and instruments, and does not cover the court cases and
other legal documents that the lawyer-linguists also
handle.
A History and organisation of the
Juristes-Linguistes Division
The European Central Bank (ECB), the central bank
for the European Union’s single currency (the euro),
has regulatory powers that enable it to adopt legal
acts (regulations, decisions, recommendations and
opinions) and other legal instruments (guidelines,
instructions and internal decisions). The difference
between legal ‘acts’ and other legal instruments is
that legal acts are those also used by other European
Community institutions, while legal instruments are
forms of rulemaking used by the ECB for specific
purposes. The ECB’s powers stem from two sources:
•the Treaty establishing the European Community,
and
•the Statute of the European System of Central Banks
and of the European Central Bank.
In June 1999, the ECB’s Governing Council followed
other European Union (EU) institutions in creating
a dedicated juristes-linguistes (lawyer-linguist) unit.
In 2000, it adopted a ‘transparency’ policy under
which it publishes almost all of the ECB’s legal acts
and instruments in all of the 20 official languages of
the European Community (see the article How the
European Commission drafts legislation in 20 languages
by William Robinson, in this issue on page 4). This
policy went beyond the requirements of European
Council Regulation No 1/58 on the languages used
by the European Community, which would require
only ECB regulations to be published in the 20
official languages in order for them to be directly
applicable. European Community Regulations rank
highest in the hierarchy of secondary legislation
because they are the only legal acts that are directly
applicable in all Member States. Member States have
to implement them word for word into national law
without variation.
The ECB’s Juristes-Linguistes Division (JLD) has
been fully operational since early 2001. Unlike the
other European institutions, where the lawyer-
linguists are linked to the Legal Service of the
institution concerned, the JLD forms part of the
ECB’s Directorate General Secretariat and Language
Services. Having a position within the organisation
means that the JLD is integrally involved in decisions
on the form and wording of legal acts and instru-
ments.
The ECB’s lawyer-linguists are all fully-trained
lawyers, able both to draft legislation in their
mother tongues, and translate legislation from
English (the ECB’s working language) into their
mother tongues. The Division comprises two sec-
tions, each of which mirrors one of the Divisions
within the ECB’s Legal Services: Operations Legal
Framework Section and Institutional Legal Frame-
work Section. Within each section, the lawyer-
linguists belong to specific subject teams.
B Responsibilities of the JLD
The ECB’s lawyer-linguists, like those of the Euro-
pean institutions, ensure that the legal acts and
instruments comply with national linguistic rules
and legal terminology, as well as the requirements
of both the law of the European Community and
national legal systems. However, each EU institu-
tion has a different approach to the way in which
lawyer-linguists contribute to preparing legal acts
and instruments. For example, at the European
Court of Justice, the lawyer-linguists either translate
or revise translations. At the European Commission
and the Council of the European Union, the lawyer-
linguists revise translations and provide both legal
advice and advice on legal drafting rules. At the
Parliament, the lawyer-linguists’ main task is to
revise translations and to coordinate language
versions for the various hearings and committee
The European Central Bank’s approach
to drafting legislation in 20 languages
12 Clarity 53 May 2005
meetings. The table on page 12 shows the different
tasks of the lawyer-linguists in five of the main EU
institutions.
The JLD carries out all the tasks shown above for the
ECB, and performs several other tasks that are vital
to ensuring consistency both within one text and
between various texts (known as ‘concordance’).
The ECB’s ‘cradle to grave’ approach involves the
lawyer-linguists from the initial drafting of a legal
act or instrument until its publication. The ECB’s
lawyer-linguists participate in drafting panels, edit
all legal acts and instruments, ensure their trans-
lation, play a coordination role, give legal advice,
advise on legal drafting rules, and organise the
publication of legal documents.
Within the ECB, the JLD has primary responsibility
for two main areas:
•the quality of the drafting of ECB legal acts and
instruments; and
•preparing all ECB legal acts and instruments in
the 20 official languages.
Quality of drafting
The JLD ensures that the ECB legal acts and instru-
ments comply with the European institutions’ rules
and advice on legislative drafting. Some of the most
important are:
•Joint Practical Guide for the drafting of
Community legislation
<http://europa.eu.int/eur-lex/en/about/
techleg/index.html>;
•Interinstitutional Agreement of 22 December 1998
on common guidelines for the quality of drafting
of Community legislation (OJ C 73, 17.3.1999, p1);
•Interinstitutional Agreement of 16 December 2003
on better lawmaking (OJ C 321, 31.12.2003, p1);
and
•Interinstitutional Style Guide (on style and
presentation)
<http://publications.eu.int/code/en/
en-000300.htm>.
Although the ECB is not party to these agreements
or guides, it fully complies with them. The English-
mother-tongue editors and draftspersons are
responsible for enforcing the drafting rules and for
producing the English text on which translations
are based. However, the JLD’s multilingual approach
to drafting allows timely and valuable input from
colleagues covering the other 19 official languages.
The JLD has two main aims in its drafting: clarity
and consistency.
Clarity
Clarity means ensuring clear, simple and precise
drafting whenever possible. The English-mother-
tongue lawyer-linguists enforce the merits of plain
English, in particular:
•avoiding unnecessarily vague or indirect
language, and unnecessary ‘legalese’ and jargon;
•checking for correct use of specific terminology;
•checking for clear structure (for example, using
headings when necessary);
•avoiding long sentences or paragraphs, and
repetition;
•lessening use of the passive;
•replacing nouns by verbs whenever possible; and
•applying gender-neutral language.
Consistency
Consistency is more complex and involves ensuring
that:
•a word in a text has the same meaning
throughout;
•conventions, such as the rules set out in style
guides, are followed; and
•there is consistency between all language versions
(‘concordance’).
The European Central Bank’s approach
to drafting legislation in 20 languages
(continued)
Institution Drafting Editing Translating Revising Coordinating Legal advice Publishing
Court of Justice XX
Commission XX
Council XX
Parliament XX
ECB X X X X X X X
Clarity 53 May 2005 13
The JLD has developed, with Legal Services, a series
of legal templates for the ECB’s legal acts and instru-
ments to ensure that legal acts and instruments
comply with all the relevant rules for presentation.
A further quality control measure involves applying
the ‘four-eyes’ principle so that each editor/drafts-
person asks a colleague to revise their work. In add-
ition, the English lawyer-linguists have developed a
checklist like Dr Betty S. Flowers’ madman-architect-
carpenter-judge approach to the writing process (see
Christopher Balmford’s article in Clarity No. 43,
May 1999). Under this approach the four stages are:
•Madman—creative brainstorming stage;
•Architect—reviews information and outlines
document;
•Carpenter—lays down structure and produces
first draft; and
•Judge—edits and reviews drafting.
All lawyer-linguists cooperate closely and exchange
ideas with their colleagues at the Council of the
European Union, European Commission and
Parliament, as well as with the ECB’s lawyers,
who ensure the timely involvement of the lawyer-
linguists in the drafting process. Together the
lawyers and lawyer-linguists aim to balance the
speed of adoption of legislation with the need to
allow plenty of time to get the legislation right.
As mentioned earlier, the JLD is responsible for
preparing all ECB legal acts and instruments in the
20 official languages of the European Community.
All texts must be legally, linguistically and termin-
ologically consistent and accurate so that the effect
of legal acts and instruments is identical in each
different language.
The ECB publishes its legal acts and instruments in
the 20 official languages whenever possible (unless
confidentiality justifies otherwise). It also aims to
publish anything that could be of interest to the
financial markets or the public. If it is not possible to
publish all of a legal act because certain aspects of it
need to remain confidential, then the ECB adopts
two separate acts—a public and a non-public
version. (There is more information on the institu-
tional framework of the European System of Central
Banks in an article in the ECB’s July 1999 Monthly
Bulletin.)
The final stage for the JLD is arranging for the ECB’s
legal acts and instruments to be published in the
Official Journal of the European Union and on the
ECB’s website in the electronic legal compendium:
<www.ecb.int/ecb/legal/1341/1342/html/
index.en.html>.
C Working procedures
The JLD’s work relies heavily on effective teamwork,
both externally with Legal Services and the business
areas involved, and internally between the lawyer-
linguists. Projects generally involve four phases:
1. Preparation
When the JLD receives a request from Legal Services
to edit or draft, and translate a legal act or instru-
ment, it first chooses an English editor/draftsperson,
a project coordinator and several subject experts
representing a cross-section (usually four or five) of
the official languages. The team then draws up a
draft production schedule with Legal Services and
the business area or areas involved. The JLD is
aware of legal acts and instruments in preparation,
so it can effectively plan resources and avoid bottle-
necks. Past practice has shown that the earlier the
lawyer-linguists are involved in the drafting or
editing of legal acts and instruments, the shorter the
text and the fewer the number of revisions needed.
2. Editing and drafting
There may be several rounds of editing or drafting,
as the ECB’s various expert committees usually
change the legal document. The subject experts do a
multilingual drafting check. They start to translate
the non-final version of the legal act or instrument,
to highlight any drafting, translation or other
problems the English text presents. The subject
experts discuss all these problems and issues with
the English editor/draftsperson, who amends the
legal document as necessary. This not only improves
the quality of the draft text at an early stage, but also
uses resources more efficiently. The group that
works alongside the English editor at this stage
produces several reference versions that help the
lawyer-linguists to answer queries. The project team
identifies useful background information and
sources of specialised terminology. The English
editor/draftsperson and the coordinator may also
meet with Legal Services and business area experts.
By the end of this phase, the legal act or instrument
should be stable enough for translation into the
other 19 official languages.
3. Translation
During this phase, the coordinator gathers further
comments on the English text and arranges a
‘translatability’ meeting with the relevant business
area and Legal Services’ representatives. Ideally, the
editing and drafting phase has already identified
most problems. However, further points often arise
during the ‘translatability’ check which lead to
changes to the source text. Lawyer-linguists also do
a ‘concordance’ check comparing their language
version, or selected parts of it, with one or two other
language versions, to ensure that each version has
equally binding legal effect in all targeted jurisdic-
14 Clarity 53 May 2005
tions. To simplify this task the German and French
versions of a legal act or instrument are established
early in the drafting process, so they can serve as
additional reference versions during translation. For
regulations, which are not just published but also
adopted in all 20 languages, individual lawyer-
linguists may informally consult contacts in the
relevant national central bank.
4. Publication
After the legal act or instrument is adopted by the
ECB’s Governing Council or Executive Board, the
JLD arranges its timely publication in the Official
Journal of the European Union. Some legal acts or
instruments (mainly statistics texts) are proofread
by the ECB’s lawyer-linguists before publication.
All ECB regulations are proofread after publication.
Once a legal act or instrument is published, all
language versions of the text are placed on the ‘legal
framework’ section of the ECB’s website.
D Future challenges
1. ‘Better regulation’
The ‘better regulation’ agenda is currently in vogue,
in part prompted by the European Commission’s
2002 Better Regulation Action Plan (which
promoted impact assessments, and simplifying and
modernising existing legislation) and the 2003
Interinstitutional Agreement on better lawmaking.
Under this Agreement the European institutions
committed themselves to transparency, account-
ability, better preparation of legislation, impact
assessments, public consultation before making
proposals, and to legislate only when necessary.
Wider use of public consultations and the possible
introduction of legal impact assessments are almost
certain to prompt calls for greater clarity in drafting
legislation. The ECB has carried out public consult-
ations, but not yet for a legal act or instrument.
2. Joint Initiative on Regulatory Reform
In 2004, Ireland, the UK, Luxembourg and the
Netherlands launched a Joint Initiative on
Regulatory Reform (as mentioned on p 8 of William
Robinson’s article in this issue). The Joint Initiative
makes recommendations about:
•improving the quality of regulatory proposals by
better impact assessment procedures;
•ensuring that impact assessments influence
decision-making;
•encouraging greater consideration of the outcome
of legislation; and
•simplifying regulation and looking at alternatives
to it.
The JLD is closely watching to see how these
recommendations develop to ensure high quality
drafting.
3. Even more languages
The increasing number of languages used within
the EU makes it even more important for the ECB
and other European Community legislators to
improve the quality of legal drafting. In 2004, the
number of EU Member States increased from 15 to 25,
nearly doubling the number of official languages—
from 11 to 20. If Romania and Bulgaria join the EU
on 1 January 2007, it will be necessary to translate
the body of common rights and obligations that
bind all EU Member States (known as ‘acquis
communautaire’) into those languages. The ECB’s
lawyer-linguists will again help the relevant
institutions to translate the ECB’s part of the acquis
communautaire.
These are just a few of the issues that challenge the
ECB’s lawyers and lawyer-linguists. It is critical to
the quality and transparency of ECB legislation that
we meet those challenges.
© J Weenink-Griffiths 2005
juliet.weenink_griffiths@ecb.int
Juliet Weenink-Griffiths has been working in the field of EC
law for over 18 years having studied English and French law
in Birmingham and Limoges. While working for the Com-
mission, a law firm, a
European Industry
Association, a multi-
national company,
and the European
Central Bank, she
gained broad insight
into the drafting of
Community legis-
lation from both a
European and a
national perspective, and from the position of the drafter as
well as that of the end user. Having always worked in a
multicultural environment she is attuned to the challenges
posed by producing legislation in many languages and is
firmly convinced that clear and precise drafting is the key to
success in this area.
The European Central Bank’s approach
to drafting legislation in 20 languages
(continued)
Country reps wanted
If you are in a country without a
Clarity country representative and
you would consider taking on the
job, please contact Joe Kimble at
kimblej@cooley.edu.
Clarity 53 May 2005 15
Duncan Berry LL.M, MPP, SJD
Consultant Parliamentary Counsel, Office of the
Parliamentary Counsel to the Government, Ireland;
formerly Deputy Principal Government Counsel
Hong Kong Department of Justice; Dublin, Ireland
Hong Kong is unique in having legislation that is written
in both the English and Chinese languages. But despite
the improvements in the Chinese drafting style over the
past few years, the Chinese version of Hong Kong legis-
lation will still be difficult to understand if the English
text from which it is derived is not itself readily compre-
hensible.
Until the late 1980s, it was the policy for Hong Kong
legislation to be drafted and enacted only in the
English language, with only explanatory notes
being written in both languages. A change in policy
occurred with the signing of the Sino-British Joint
Declaration of 1984 on the restoration of Chinese
sovereignty over Hong Kong. Three years later, the
Hong Kong Legislative Council enacted the Official
Languages (Amendment) Ordinance 1987 (No. 17 of
1987) (HK) and the Interpretation and General Clauses
(Amendment) Ordinance (No. 18 of 1987) (HK). Shortly
afterwards, the first Chinese language versions of
Hong Kong legislation appeared and a program to
produce Chinese language versions of existing
Hong Kong legislation was established.
Under section 10B(1) of the Interpretation and General
Clauses Ordinance (Cap. 1) (HK), both the English
and Chinese texts are equally authentic and both
texts are regarded as having equal status. Although
Hong Kong’s Basic Law does not explicitly provide
for English to be an official language of Hong Kong,
Article 9 of that Law does say that “…English may
be used as an official language …”.
The normal Hong Kong practice is for the English
text to be drafted first and for that text to be the basis
for preparing the Chinese text. This may be con-
trasted with Canada where, at the federal level at
least, separate English and French texts are drafted
contemporaneously by Anglophone and Franco-
phone legislative counsel.
During the period immediately after the intro-
duction of the new policy, the Chinese language
versions of legislation were basically translated
texts. Legislative counsel concentrated on closely
adhering to the style and format of the English texts
and ensuring that legislative concepts in the English
version were accurately replicated, even at the
expense of readability and comprehensibility. In
other words, in preparing the Chinese version of a
legislative provision, readability and comprehen-
sibility were sacrificed for accuracy if alternative
(but more readable and comprehensible) Chinese
versions would result in an interpretation different
from the interpretation of the English version. One
reason for this was that the drafters of the Chinese
versions were then relatively inexperienced in
original legislative drafting. Nevertheless, according
to Tony Yen, Law Draftsman, Hong Kong Depart-
ment of Justice, a Chinese version of a legislative
provision would not be adopted if it would depart
so far from the grammatical norm in the Chinese
language that it would fail to convey accurately, or
even adequately, its technical meaning.1
In recent years, Sinophone legislative counsel have
gained more experience and confidence in the
preparation of the Chinese versions of Hong Kong
legislation and so those versions are no longer a
word-for-word translation of the English text.
Nevertheless, the meanings that Sinophone users
elicit from the Chinese version of the legislation are
still expected to be the same as those elicited by
Anglophone users who read the English version.
Despite the improvements in the Chinese drafting
style that have evolved during the past 3 or 4 years,
I contend that the Chinese version of Hong Kong
legislation will still be difficult to understand if the
English text from which it is derived is itself not
readily comprehensible. Because of the semantic,
grammatical and syntactic differences between
English and Chinese, achieving exactly the same
legal effect of the English statutory provisions by
Chinese translation is far from easy. The difficulty
lies in the structural differences between the English
and Chinese languages. This can result in legis-
lative texts that differ in effect. If therefore the
English text is obscure, producing the Chinese
version becomes nightmarish. According to Fung
and Watson-Brown2:
Without clarity, the law becomes a trap. What
relevance is that to translation? Before the
translator can hope to be understood, he must
understand. The translator should not be led
The effect of poorly writtenpoorly written
poorly writtenpoorly written
poorly written legislation
in a bilingual legal system
16 Clarity 53 May 2005
into the trap of misunderstanding the law. In
recognising the issues that blur communication,
the translator is able to work his way through
the complexity of the law.
It should therefore come as no surprise to learn that
at least some Chinese versions of Hong Kong legis-
lation have been described as being difficult to read
and comprehend. However, some of the critics may
be unaware of the constraints imposed on those
responsible for producing the Chinese version of a
legislative document. Others may not yet have
become used to using Chinese as a “legal language”.
The problem of ensuring that legislation is both
readable and comprehensible is not unique to the
Chinese texts. Users of the English versions of legis-
lation make similar complaints. For example, see
Fung3. Other contributors to the Hong Kong Lawyer
have voiced similar criticisms about the complexity
of the Chinese texts of Hong Kong legislation.
Many older Hong Kong statutes and regulations are
modelled on old English Acts that are drafted in
archaic English and in a convoluted, opaque style
that is difficult to understand. According to Yen4, it
has been particularly difficult to create readable and
comprehensible Chinese language versions of these
statutes and regulations. Hong Kong Sinophone
legislative counsel have on many occasions told me
how much easier it is to create readable and comp-
rehensible Chinese versions of legislation when the
English texts from which they are derived are them-
selves drafted in clear, user-friendly English, with
shorter and less complex sentences and more
familiar words.
In order to determine whether or not this view was
valid, I identified what I considered to be fairly
difficult sections in the Police Force Ordinance (Cap.
232) and the Fixed Penalty (Criminal Proceedings)
Ordinance (Cap. 240) and, as part of a legislative
drafting training exercise, asked some of the legis-
lative counsel who were participating in the
exercise to provide me with interpretations of the
them. Each of the provisions was misinterpreted by
at least one of the counsel. All of the counsel
involved in the training exercise were employed in
the Legislative Drafting Division of the Hong Kong
Department of Justice and were well-qualified law-
yers who had been regularly exposed to Ordinances
and subsidiary legislation for at least 2 years. Far
from being a reflection on them, their inability to
accurately interpret the sections concerned is a
reflection on the readability and comprehensibility
of those sections.
I subsequently redrafted the provisions with a view
to making them more readable and more intelligible
and asked one of the Sinophone legislative counsel
in the Department to say whether those versions
would enable a Sinophone version to be produced
that would be easier for a Sinophone to read and
understand than the original (existing) Chinese
versions. One of the sections that I redrafted for the
purpose of this exercise was section 9A of the Fixed
Penalty (Criminal Proceedings) Ordinance. The section
reads as follows:
9A. Additional penalty in proceedings
on complaint
Where a person, having notified the
Commissioner of Police, in accordance
with a notice under section 3(3), that he
wished to dispute liability for a scheduled
offence or having been given leave under
section 3B(1)(a) and having been served
with a summons, does not appear before
the court or, having appeared, offers no
defence or a defence which is frivolous or
vexatious, the magistrate shall, in addition
to any other penalty and costs, impose an
additional penalty equal to the amount of
the fixed penalty for that offence.
In my view, the section is too long; it is too com-
pressed; and it contains too many ideas for the
reader to absorb on first reading. Furthermore, the
section is ambiguous because it is not clear which of
the preceding clauses the clause “and having been
served with a summons” modifies.
My redraft of the section is as follows:
9A. Additional penalty in proceedings
on complaint
(1) A magistrate who hears the
proceedings in respect of a scheduled
offence must impose on a person to whom
this section applies an additional penalty
in addition to any other penalty and costs
if the person—
(a) does not appear before the
magistrate; or
(b) having appeared, either offers
no defence or offers a frivolous
or vexatious defence.
(2) The additional penalty must be equal
to the amount of the fixed penalty for the
offence.
(3) This section applies to a person who—
(a) has given a notice of an intention
to dispute liability for a sched-
uled offence to the Commissioner
of Police under section 3(3); or
(b) has been given leave under
section 3B(1)(a) and served with
a summons.
The effect of poorly written legislation
in a bilingual legal system
(continued)
Clarity 53 May 2005 17
Although the redraft contains more words than the
original, it arguably expresses the ideas in a way
that is more readable and comprehensible. The
comments of the Sinophone legislative counsel (who
prefers not to be named) on the redrafted section are
as follows:
The tabulation of the English text of section 9A
improves its comprehensibility greatly and also
helps to remove ambiguities contained in the
original text. If correspondingly structured, the
Chinese version will be much more focused
with the legal subject (the magistrate) and the
legal action (imposition of the additional
penalty) stated upfront. Placing the circum-
stances and conditions under which the law
operates in a tabulated subsection (3) can
offload the original Chinese sentence, stream-
line its syntax and convey its meaning much
more clearly.
Along with others, I have proposed to the Hong
Kong Department of Justice that the English
versions of older Hong Kong statutes and regu-
lations could be re-written in plain, modern
language that would be much easier for Anglo-
phone users to read, understand and use. If this
suggestion were implemented, it would surely
facilitate the creation of Chinese versions of those
statutes and regulations that Sinophone users
would find much easier to read, understand and
use. Although the proposal has been favourably
received by the Department, it remains to be seen
whether there is sufficient political will to imple-
ment it in the foreseeable future.
© D Berry 2005
Duncan_Berry@ag.irlgov.ie
1Yen, T. “One law two languages”, The Loophole,
(Journal of the Commonwealth Association of
Legislative Counsel) 1997, Dec, 4-11, p 4.
2Fung, Y.C. and Watson-Brown, A. The Template—
A Guide for the Analysis of Complex Legislation,
London: Institute of Advanced Legal Studies,
1994.
3Fung, Y.C. “Law and disorder: Bilingual agenda”,
Hong Kong Lawyer, 1998, July, 28, 29.
4Yen, T. “One law two languages”, The Loophole,
1997, Dec, 4-11, p 4.
Duncan Berry graduated
LL.B University of
Nottingham July 1957. He
was called to the English
bar (Grays Inn) Nov 62;
joined NZ Parliamentary
Counsel Office Aug 65;
joined NSW PCO 1975
and was Senor Legislative
Drafting Officer NSW
PCO (1975-78 & 1984-
1995). He was Chief
Parliamentary Counsel of
Tasmania (1978-83) and
Deputy Principal Gov-
ernment Counsel Hong
Kong Department of
Justice (1995-2001). He was awarded his SJD (Doctor of
Juridical Science) by the University of Technology Sydney
(thesis: ‘Designing Usable Legislative Texts’) in May 2003,
and is currently Consultant Parliamentary Counsel, Irish
Office of Parliamentary Counsel. He is also secretary of the
Common-wealth Association of Legislative Counsel (CALC)
and editor of ‘The Loophole’ (journal of CALC).
Ambiguous and unhelpful signs
From The Sydney Morning Herald, Thursday 21 April 2005.
Ambiguous and unhelpful signs (Column 8, Friday and beyond) continue to roll in. “A
simple ‘Egress’ sign is bad enough,” writes Bob Watson, of Pennant Hills, “but even more
irksome is the Pennant Hills Community Centre’s exit doors, which are marked ‘Alternate
Egress’. Don’t get me started on ‘alternate’ instead of ‘alternative’.” As for hospital signs,
where this whole shemozzle started, sometimes the very word “hospital” has gone by the
wayside. “It is of interest to see the use of the word ‘campus’ by the Health Department of
NSW,” writes Bob Triebel, of Casino. “If you are looking for the hospital in Coffs Harbour,
give up, you should be looking for the ‘Health Campus’. These signs may well mean nothing
in an emergency or late at night.”
Reprinted with permission from ‘Column 8’, The Sydney Morning Herald.
18 Clarity 53 May 2005
Emma Wagner
Ex-Eurocrat, Brighton, UK
Legislating clearly in one language is hard enough—but
it is even more difficult when several equally authentic
language versions have to be produced. Switzerland is
one country that faces this difficulty and still produces
clear legislation. Has Switzerland solved the problems of
legislating multilingually and if so, could the people
producing European Union legislation copy the Swiss
model?
Switzerland is not a member of the European Union.
However, it has one characteristic in common with
the European Union: it is multilingual. Switzerland
has three main official languages: French, German
and Italian, plus a fourth, the Latin-based local
dialect called Romansh. Switzerland must produce
its legislation in all three (and in some areas four)
languages.
In the early days of the European Union there were
only four official languages: French, German, Italian,
and Dutch. Now the EU has grown to 25 Member
States, with 20 official languages, but the obligation
to produce multilingual legislation remains the
same. As explained in a recent European Com-
mission press release:
The scale of [the EU’s] multilingual regime
makes it unique in the world, and to some the
extra work it creates for its institutions may
seem at first sight to outweigh the advantages.
But there are special reasons for it. The Union
passes laws directly binding on its citizens and
companies, and as a matter of simple natural
justice they and their courts must have a version
of the laws they have to comply with in a lang-
guage they can understand. Everyone in the
Union is also entitled and encouraged to play a
part in building it, and must be able to do it in
their own language.1
Translation versus co-drafting
Given this similarity of obligations, it is interesting
to compare the systems used to produce multi-
lingual legislation. The EU system, discussed by
William Robinson in this issue of Clarity (page 4), is
based on translation of an original text into all the
other languages required. Much effort is then
expended on the legal checking of the translations
(these checks are carried out by lawyers, not by
translators) to ensure that all the language versions
are legally sound and can therefore be equally valid.
Critics of EU legal jargon have suggested that there
is an alternative to translation, called co-drafting.
This practice is followed in some bilingual coun-
tries, notably Canada, where ’Bills are co-drafted by
pairs of drafters in the Legislation Section working
simultaneously on English and French versions of
the bill. Neither version is subordinated to the
other.’2
Co-drafting is well defined by Winston Roddick QC,
Counsel General to the Welsh Assembly, in this evi-
dence to the Richard Commission of the National
Assembly for Wales:3
Co-drafting is the process by which each of the
versions of the Bill is drafted simultaneously
with the other—more or less—and there is a dia-
logue between the one version and the other in
which the wording of one informs the wording
of the other. The simultaneous evolution of the
two versions is bound, I would think, to mani-
fest itself in legislation the content and form of
which is quite different from that of legislation
made in English and then simply translated
into the other language. The Canadian exper-
ience was precisely that.
According to Mr Roddick, co-drafting improves the
brevity and clarity of texts:
The different approach required by co-drafting
produced legislation that was briefer and clearer
than legislation produced in English and then
translated into French. The form of one influ-
ences the form of the other.
And he explains why this is:
When you have to give effect to something in
two languages, each one as legally valid as the
other, you really have to know what that some-
thing is.
It has always been clear to me, as a translator, that
co-drafting would produce clearer results than
translation. In the process of translation, most trans-
lators will find obscurities in the original text:
passages that could have been worded more clearly.
Producing multilingualProducing multilingual
Producing multilingualProducing multilingual
Producing multilingual
legislation in Switzerlandlegislation in Switzerland
legislation in Switzerlandlegislation in Switzerland
legislation in Switzerland
Clarity 53 May 2005 19
They are often obliged to reproduce this ambiguity.
But if the obscurities could be nipped in the bud at
the drafting stage, in a ‘dialogue’ between the lang-
uage versions, the resulting texts would be clearer.
As for procedures, though: while co-drafting is
viable when producing a bilingual text, it is difficult
to imagine how it could be organised when more
than two languages are needed. So, having heard
that legislation is produced in multilingual Switz-
erland by co-drafting, and that Swiss legislators
attach importance to clear language, I decided to
investigate.
An interesting Swiss hybrid
(co-drafting plus translation)
My first discovery, based on information for which I
thank Christine Guy of the Federal Office of Justice
in Berne, was that Swiss legislation is not produced
by simultaneous co-drafting in all three official
languages. Co-drafting is used in two languages
only: French and German. The third, Italian, is
added by translation. All three language versions
are equally valid, but the drafting is done in two
languages only, because of the practical difficulty of
conducting a dialogue between more than two
participants. Co-drafting is restricted to important
legislation, and to certain departments. However, it
is considered very beneficial. As Christine Guy said
in a private e-mail: ’Co-drafting not only helps to
simplify and clarify legal style; it also enriches the
substance.’
This echoes the point made independently by
Winston Roddick QC in the passages quoted above,
reporting on the Canadian experience. Co-drafting
does indeed appear to concentrate the mind of the
drafters, forcing them to think harder and more
clearly about what they are trying to say. I can ima-
gine, too, that the more different the two languages
of co-drafting are, the greater the pressure on the
drafters to move away from the surface words and
think about the deeper meaning. French and German
are very different languages, with profound differ-
ences in word order, grammar and vocabulary. The
distance between them is even greater than the
distance between English and French. Probably this
makes for even better results in co-drafting Swiss
legislation. Certainly there is a consciousness of the
need to avoid interference between the two; this is
spelled out in one of the excellent on-line guides for
Swiss drafters: ‘Take extra care when translating
from German: its syntax and compound words can
lead to a clumsy style in the French version; make
sure the French is idiomatic.’4
Clarity tools in Switzerland
Co-drafting is not the only tool in the Swiss legis-
lators’ clarity toolbox. There are several others. One
is wide public consultation on important draft
laws.5 The effect of public consultation is twofold:
first, there is pressure to write comprehensible drafts
in order to minimise criticism during consultation;
and second, as Christine Guy points out, ’It is not
unusual for comments made in the consultation
process to lead to linguistic improvements’. There is
nothing like a critical test reader (or several) to ferret
out any obscurities persisting in a draft.
Another tool is the set of excellent legal drafting
guides provided by the Swiss authorities, in French
and German, and offered on-line so that they can be
updated as required. These guides include the Guide
linguistique des lois et ordonnances de la Confédération
which—despite its unsnappy title—provides pithy
advice such as the following, which could usefully
be framed and hung in the offices of officials in civil
services everywhere:
If a provision can only be understood by the
officials who wrote it, it is badly written. 6
The main drafting guide for Swiss legislators is the
Guide de Législation mentioned earlier. This is an ex-
haustive 500-page manual, in French and German,
covering all aspects of the legislative process, from
inception to implementation. After the chapters on
legislative technique, and forms and precedents,
there is a fascinating chapter on legal language,
including guidance on clear language such as the
following:
On concision: check that every word is really
necessary.
On syntax: •the simplest forms are often
the best;
•use short sentences;
•use simple constructions;
•avoid embedded subordinate
clauses.
On vocabulary: use modern, everyday words.
On verbs: use the active voice.
On definitions: •if definitions are necessary,
group them in the same article;
•definitions can be avoided if
everyday words are used with
their everyday meaning.
Little of the advice given above will be new to Clarity
readers. But should anyone mistakenly suppose
that concern about clear legal language is restricted
to English-speaking countries, they need only look
at the Guide de Législation to see that in Switzerland
there is official encouragement to write clearly in
French and German, with excellent advice on how
to do it.
20 Clarity 53 May 2005
Can co-drafting work for the EU?
Does Switzerland have anything to teach the EU
institutions about procedures for drafting multi-
lingual legislation? It seems that the answer is
‘Probably not.’ Of the three aids to legislative clarity
mentioned here—co-drafting, public consultation
and drafting manuals—the last two are already part
of the EU legislative process.
As for co-drafting, the Swiss experience has shown
that while it is possible when working with two
languages, the practical and economic difficulties of
bringing a third language to the co-drafting table
may be insurmountable. So there is not much hope
for the EU, with 20 official languages! Nevertheless,
even limited co-drafting can bring benefits, as the
Swiss and Canadians have found. An experiment
with co-drafting in two languages in the EU context
might bring the sort of clarity and brevity benefits
observed in Canada and Switzerland.
© E Wagner 2005
emma.wagner@btopenworld.com
Emma Wagner worked for
the European Commission
for 30 years as a translator
and translation manager.
While there, she coordin-
ated the ‘Fight the Fog’
campaign to encourage
clear writing. She is now
living in England and is on
the Council of the Institute
of Translation and Inter-
preting, a UK professional
association. She has co-
written two books on
translation-related subjects,
as well as Clarifying EC
Regulations, with Martin Cutts of Plain Language
Commission; she writes articles and gives lectures on
these topics.
Producing multilingual legislation
in Switzerland (continued)
1Commission Press release, 13.1.2005.
2Ch 2.3 of the Guide to Making Federal Acts and
Regulations produced by the Privy Council Office
of the Government of Canada.
3<www.comisiwnrichard.gov.uk/content/
template.asp?ID=/content/evidence/oral/
councilgeneral/index.asp>.
4Guide de Législation <www.ofj.admin.ch/f/
index.html>.
5For consultation procedure see RS 172.062
<www.bk.admin.ch/ch/f/rs/c172_062.htm>.
6Guide linguistique des lois et ordonnances de la
Confédération
<www.admin.ch/ch/f/bk/sp/guide/
memoire.htm>.
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Clarity 53 May 2005 21
Ian Frame
Lawyer-linguist, Court of Justice of the European
Communities, Luxembourg
Translators are often blamed for oddities and infelicities
in Community legislation, yet they are rarely at fault.
Rather it is the system that is to blame.
The role of the English language
European law has been a reality in the United King-
dom for more than 30 years. Throughout that period
the United Kingdom has not only been subject to
Community law but has participated actively in the
process by which it is adopted.
The Community legislative process has always
been multilingual but with each enlargement of the
European Community there has been an inexorable
progression towards the use of English as the
drafting language for the majority of Community
instruments.
It is undeniable that there have been linguistic
errors in EU legislation over the years and all too
often the easy option has been taken of attributing
them to translators. What is miraculous is that there
have been so few mistakes, given the enormous
number of enactments. But, as will become apparent
from a brief examination of the legislative process,
the translators are rarely to blame.
The start of the legislative process
All secondary legislation in the EU (that is, regu-
lations, directives and other measures that the
Community institutions adopt under the various
Treaties) originates in the Commission. Specialised
departments write the first draft of an instrument
(known as the ‘proposal’). Those who do so will
almost certainly have limited experience of legisla-
tive drafting. They may be, for example, economists,
tax specialists, pharmacists or veterinarians,
depending on the subject of the proposal.
Although English is now the language in which
most documents are drafted, particularly in the ‘co-
decision procedure’ (see below), it is not necessarily
the mother tongue of the drafter. That said, the
standard of English of the majority of drafters is
impressively high, whatever their linguistic
background.
The result is that the raw document produced by the
originating department in the Commission will in
most cases display a reasonably good standard of
English but there will be errors of style and vocab-
ulary, and many other imperfections in need of
tidying up.
Legal revisers
It is at this stage that, in theory, the Commission
proposal will be looked at by a Commission legal
reviser. The legal reviser’s job is to check the instru-
ment for compliance with the rules on form and
presentation and to improve the quality of drafting
generally.
However, correctness of another kind—political
correctness—is a factor that complicates matters.
Since the majority of Community acts first see the
light of day in English it would be logical for the
Commission to have more legal revisers of English
mother tongue than of any other language. How-
ever, political correctness prevents the recruitment
of significantly more English legal revisers than
those of other languages, with the result that there
are not enough of them to ensure that all the docu-
ments that need to be examined by a legal reviser of
English mother tongue are in fact so examined.
Another adverse factor is that it is extremely diffi-
cult to recruit English legal revisers to work in the
EU. Although the UK is considerably more linguist-
ically aware and competent than it was 30 years
ago, there is still a shortage of English lawyers with
an indepth knowledge of two or more foreign lang-
uages. Those who do possess this dual qualification
tend to look first to the City of London for employ-
ment where they can often earn more and look
forward to speedier promotion. Large financial
incentives will be needed before a sufficient number
of UK multilingual lawyers will consider abandoning
claret in the winebars in London’s Bishopsgate for
the raspberry-flavoured beer served in the bars
around the Rond Point Schuman in Brussels.
Whilst it is acceptable for the thousands of routine
documents that the Commission drafts every year
not to be revised by a native speaker (for example,
those concerning agricultural prices will often differ
from earlier ones only as regards the date and the
price levels), important documents really need
linguistic scrutiny as early as possible.
Linguistic oddities in European Union legislation:Linguistic oddities in European Union legislation:
Linguistic oddities in European Union legislation:Linguistic oddities in European Union legislation:
Linguistic oddities in European Union legislation:
don don
don don
don’t shoot the translator’t shoot the translator
’t shoot the translator’t shoot the translator
’t shoot the translator
22 Clarity 53 May 2005
There is also an understandable temptation for the
Commission to be economical with its overstretched
resources by not revising instruments that are to be
examined in detail by legal revisers elsewhere at a
later stage, because they will ultimately be adopted
jointly by the Parliament and the Council. This pro-
cedure—known as the co-decision procedure—is an
important innovation introduced by the Maastricht
Treaty to give the Parliament more powers and raise
its reputation from that of a mere talking shop. The
documents adopted under the co-decision procedure
are looked at, first separately and then jointly, by the
European Parliament legal revisers and by their
counterparts in the Council (who refer to themselves
as jurist-linguists). More than 95% of the acts adopted
under this procedure are drafted in English.
Where documents are drafted in English by a non-
native speaker, the originator of the document may
be mentally translating certain passages from a
language that may or may not be his or her mother
tongue into English. Even if the drafter is of English
mother tongue, he or she may not have developed
the linguistic awareness needed to produce a
document that is grammatically as well as legally
cohesive. As a result, any linguistic peculiarities
present at this early stage are attributable not to
professional translators but to the drafters.
The amendment stage
The draft instrument now moves forward in the
legislative process, and numerous participants,
many (sometimes most) of whom are neither lawyers
nor linguists, add their contribution. All draft legis-
lation is of course forwarded to the Member States
for consideration by their domestic civil servants
and politicians. At the international level, there are
working groups, consultative committees, manage-
ment committees, groups of experts, meetings of the
various national representatives—the list goes on—
so that changes and additions come from many
sources. And in the co-decision procedure the
Parliament’s contribution is in the form of numerous
amendments tabled by Members of the European
Parliament [MEPs] (many of which do not attract
enough votes to survive).
MEPs’ amendments are usually, but not always,
drafted in the language of the document to which
they relate. Some are drafted by the MEPs and their
assistants and some are mere echoes of suggestions
made by lobbyists—it is not unusual for the text of
lobbyists’ amendments to be lifted verbatim. Because
they are interpolations, they often fit with difficulty
into the grammatical structure of the sentences of
which they aspire to become part, and they often
introduce inconsistencies of vocabulary. Those that
are not drafted in English have to be translated into
English. But the translator does not have the last
word. That responsibility falls to others. The final
versions of the amendments are checked by the
Parliament’s legal revisers.
As a result of the many changes which documents
undergo, imperfections arise or in some cases are
wilfully introduced, or are at least tolerated. It must
not be forgotten that the Council is not just in the
thrall of the Member States—it is virtually an eman-
ation of the Member States. Therefore, there is a
tendency to do those things which ought not to be
done and to leave undone those things which ought
to be done, at the behest and for the convenience of
the Member States.
The imperfections are many and diverse. They
derive from political disingenuousness, a desire for
vagueness, or outright spin; from application of the
‘principle of inertia’ (including the subprinciple of
‘even if it’s broke don’t fix it’); from overreliance on
technical experts; from inadequate knowledge of
English on the part of some of those involved in the
legislative process, including some native speakers
of English; and from indifference about the quality
of the language of legislation (sometimes exacerbated
by the desire of national civil servants to escape
from long meetings and catch flights home).
Inertia: even if it’s broke don’t fix it
Council Directive 93/104/EC of 23 November 1993
concerning certain aspects of the organisation of working
time
Article 21(7):
Member States may provide that workers on
board seagoing fishing vessels for which national
legislation or practice determines that these vessels
are not allowed to operate in a specific period of
the calendar year exceeding one month, shall
take annual leave in accordance with Article 7
within that period.
Even if we disregard the lonely comma between the
subject and the main verb, we cannot overlook the
fact that the sentence structure goes awry with the
phrase for which national legislation or practice
determines that these vessels … . In 2003, when the
directive was being amended, the Council squan-
dered the opportunity to rectify this provision by
refusing to adopt the following wording suggested
at the legal revisers’ meeting, which would have
enhanced both the grammar and the clarity of the
provision:
Member States may provide that workers on
board seagoing fishing vessels which, by virtue of
national legislation or practice, are not allowed to
operate in a specific period of the calendar year
exceeding one month shall take annual leave in
accordance with Article 7 within that period.
Linguistic oddities in European Union
legislation: don’t shoot the translator
(continued)
Clarity 53 May 2005 23
The longer a document exists, the harder it becomes
to change it. For this reason it would—as suggested
above—be extremely useful for the Commission’s
Legal Service to have more English-language legal
revisers available to remove grammatical and
stylistic errors before the consultation stage from
draft legislation produced in English. By the time
draft legislation finds its way to the Parliament’s
and the Council’s legal revisers, time allows only for
legal niceties and logical inconsistencies to be
corrected. Moreover, because most of the participants
are not native English speakers, they are unlikely to
regard grammatical errors and stylistic infelicities
in the English version as important.
Political meddling
Member States’ representatives often make changes
for political reasons which override linguistic con-
siderations. Particularly in the case of directives,
Member States often prefer ambiguity to clarity since
this enables them to implement a measure in a way
that suits their domestic agenda. Even if the Court of
Justice ultimately finds that a Member State has not
properly transposed a directive into its domestic
legislation, this tactic buys years.
The taming of terminology
Directive 2002/30/EC of the European Parliament and
of the Council of 26 March 2002 on the establishment of
rules and procedures with regard to the introduction of
noise-related operating restrictions at Community
airports
The wording of this directive is vague, which comes
as no surprise since the United Kingdom Govern-
ment is sensitive about steps to reduce aircraft
noise, fearing that commercial interests might be
damaged. Thus, at the end of the legislative process
the measure contained strange linguistic deviations
that remove the sting from plain words such as
‘aggravation of noise pollution’ (which would have
been the obvious translation of the French aggravation
de la pollution sonore) and substituted the anodyne
expression ‘deterioration in the noise climate’. Other
examples of tampering include ‘assessment of the
noise impact’ for évaluation des incidences des nuisances
sonores and ‘a policy approach to address aeroplane
noise’ for une méthode d’action pour traiter des nuisances
sonores générées par les avions. No English-speaking
translator would have produced these translations
from French; they are politically massaged versions
of faithful translations.
The translator as healer
In contrast to linguistic chicanery of the kind illu-
strated above, translation can sometimes rectify and
heal. This happens when a translator improves on
the original text. For example, an English draft that
contains errors intentionally overlooked or even or
created by disingenuous participants may be trans-
lated correctly into other language versions. Consider
the following example.
Directive 2003/30/EC of the European Parliament and of
the Council of 8 May 2003 on the promotion of the use of
biofuels or other renewable fuels for transport
Article 4(1)
In the report covering the year 2006, Member
States shall indicate their national indicative
targets for the second phase. In these reports,
differentiation of the national targets, as com-
pared to [sic] the reference values referred to in
Article 3(1)(b), shall be motivated and could be
based on the following elements .... (emphasis
added).
The words ‘shall be motivated’ in the original
English were doubtless written (in English) by
someone whose mother tongue is French, Spanish
or Portuguese (French sera motivé or Spanish and
Portuguese será motivado). No translator in the Com-
mission or the other EU institutions would use the
word ‘motivated’ in that context. They would usually
use the words ‘reasoned’ or ‘reasons’ as in Article
85 EC: ‘a reasoned decision’; or Article 253 EC:
‘shall state the reasons on which they are based’).
Here, an acceptable translation might read ‘the
reasons for differentiation of the national targets …
shall be specified’. A United Kingdom civil servant
would only insist on retaining ‘motivated’ because
its meaninglessness attenuates the force of the
obligation imposed on the governments of the
Member States, including the UK.
The ironical result is that the only version that is
meaningless is the original language version, which
the translator, as healer, has not had an opportunity
to improve.
Misconceived mastery of experts
Sometimes native speakers of English defer to
technical experts even when they must know the
English is wrong or that jargon should be translated
into plain English. Here is an example.
Directive 2003/71/EC of the European Parliament and of
the Council of 4 November 2003 on the prospectus to be
published when securities are offered to the public or ad-
mitted to trading (as amended by Directive 2001/34/EC)
These securities may include different products,
such as debt securities, certificates and warrants,
or the same product under the same programme,
and may have different features notably in terms
of seniority, types of underlying, or the basis on
which to determine the redemption amount or
coupon payment [emphasis added].
Whether or not it is customary to use ‘underlying’
as a noun in the securities industry, this usage
confuses most readers who assume that ‘under-
24 Clarity 53 May 2005
lying’ is an adjective and so look in vain for the
noun it modifies. Translators into other languages
added the noun ‘assets’ or ‘securities’ after ‘under-
lying’ in their versions.
Drafters in denial
To end, here is an example of the Council painting
itself into a corner by publishing an error in its
Manual of precedents for acts established within the
Council of the European Union (the English version of
which, for some undisclosed reason, has an index
only in French).
A provision that appears in numerous measures
conferring powers on a committee (a process called
‘comitology’) refers to Council Decision 1999/468/EC
laying down procedures for the exercise of implementing
powers conferred on the Commission.
The provision states incorrectly that for certain
committees the period laid down in Article 4(3) [of
Decision 1999/468] shall be set at [x] months. Article
4(3), however, does not lay down a period but refers
to ‘a period to be laid down in each basic instrument’,
so there is a clear contradiction. Apart from the
standard clause being wrong, the expression ‘shall
be set at’ implies that further action is to be taken at
a later stage. This is not the case since the instrument
containing the comitology clause sets that time-limit.
The Parliament’s efforts to amend this recurrent
error (by suggesting the wording: the period referred
to in Article 4(3) shall be [x] months) usually fail
because the Council will not admit that it has been
wrong for many years to use the illogical wording
enshrined in its Manual of Precedents and, thanks to
its superior bargaining power in this, the so-called
co-decision procedure, the Council’s wishes mostly
prevail.
I could give many other examples, but I hope that
those I have given show that it is rarely the trans-
lator who is responsible for the oddities found in
Community legislation.
© Ian Frame 2005
ianframe@primexplus.com
Linguistic oddities in European Union
legislation: don’t shoot the translator
(continued)
After eight years with a
City of London law firm,
in 1981 Ian Frame
became a lawyer-linguist
in the Court of Justice of
the European Communities
where he has worked ever
since, apart from a period
of about 18 months as a
legal reviser scrutinising
legislation in the European
Parliament. He is also a
Scrivener Notary Public of
the City of London, having
been attracted to that
profession by the dual
qualification in law and
foreign languages which Scriveners must obtain, during a
five-year traineeship, before being entitled to practise.
Clarity: electronic or paper?
We publish Clarity in both electronic (.pdf) and paper
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posted from the US all around the world. You can ask for
Clarity to be delivered to you either or both ways.
Just let your country representative know
if you want to change the way you receive Clarity.
Clarity 53 May 2005 1
Catherine Rawson
International Legal English, Consultant, Beijing, China
Non-native English speakers who expect a quick fix of
their writing are usually indulging in wishful thinking
and making the mistake of forgetting the needs of their
readers—the overriding principle of plain language
writing. Editing this sort of English is skilled work.
While some errors are obvious and easy to correct, others
are not, especially when tangled up in tortuous sentences
with legal concepts. If allowed, an expert legal editor can
greatly improve a text by not only correcting the errors,
but also by “translating” and “interpreting” the text to
meet the needs of international readers.
As guest editor of this issue of Clarity, the reason I
chose to explore the extent to which plain language
is used in multilingual and non-English speaking
countries, is that I have found that using plain
language (like plain speaking) raises deep cross-
cultural issues. German lawyers, for example, are
inclined to perceive plain language as unscholarly,
whereas English-speaking lawyers consider it to
be the hallmark of competence. The difference in
perception is cultural. German academic tradition
equates transparency with superficiality, while
Anglo cultures admire thinkers who make their
ideas “crystal clear”. Non-native English writers
whose native language has both a formal and
informal mode of address can feel uncomfortable
following the plain English recommendation of
using “you” to involve their reader. To them this
form smacks of rude informality.
This article is in two parts. Here I review some of the
problems non-native English lawyers experience
writing in English, and the extent to which meaning
and language are inseparable. In Clarity No 54 I
will expand on what is involved in editing non-
native English texts, and how firms can dramatically
improve writing standards while reducing costs by
lessening their lawyers’ dependence on native Eng-
lish speakers. With training supported by software
tools, non-native English lawyers can correct style
and translation errors themselves.
“Reading maketh a full man, writing maketh
an exact man”
When Englishman Sir Francis Bacon (1561-1626)
wrote these words 400 years ago England was a
multilingual country, so Bacon would not have been
a stranger to the misunderstandings that occur when
speakers use a foreign language. Bacon understood
that we must be exact in how we write, if others are
to understand our thoughts and be persuaded to
our way of thinking.
Each of us is shaped by our family, education, and
national culture. Frustration and misunderstandings
can easily result when we communicate in a foreign
language to a different audience. Without the benefit
of non-verbal signals and voice tone, the written
word presents our readers with a linguistic guessing
game. The task of the non-native English lawyer is
to remove the guesswork.
Standard English
Today more people use (abuse?) English as a foreign
language than use it as a native language. To be
comprehensible as an international language, English
must follow one standard. Since each English-
speaking country has its own usage standards for
grammar, vocabulary, spelling, and punctuation,
writers must choose one standard and stick to it.
This is easily done with computerised grammar-
and spell-checkers, although the prompts designed
for native English speakers may sometimes puzzle
and confuse non-natives.
Editing out “foreignness”
If “foreignness” could simply be skimmed off a text
as cream is from milk, an editor could “just fix the
English”. The problem is that gleaning meaning
comes before editing. If a legal editor cannot under-
stand what a text is about, then if the intended
reader is to understand it, the editor will need to go
beyond merely correcting the odd foreign error. A
plain English text, as Clarity’s readers know, allows
the intended reader to get its message on first reading.
25
26 Clarity 53 May 2005
A legal editor plays the role of an expert surrogate
reader for the target audience, which for a lawyer is
mostly prospective and existing clients. If a text is
unclear or poorly written or both, the editor will
stumble and backtrack, just as the reader would.
The editor’s task is to correct flawed writing and fill
content gaps to create flow. Sometimes this involves
“translating” foreign concepts and language and
“interpreting” assumed cultural messages.
“Lawyers have two common failings. One
is that they do not write well and the other
is that they think they do.”1
This statement made by Prof Carl Felsenfeld in 1982
about US lawyers, applies to non-native English
lawyers today. How well a foreign lawyer writes
in English depends on the lawyer’s grasp of law,
English level and writing ability. A writer whose
thoughts are unclear finds it hard to write clearly,
regardless of the vehicle language.
Non-native English lawyers who write poorly in
their mother tongue have trouble writing well in
English. Like their native English speaking col-
leagues, these lawyers do not know the difference
between good and poor writing because they have
not been taught how to write plainly. Once non-
native English lawyers accept that writing quality
can be measured objectively, they are motivated to
improve their writing skill, because they realize that
both English speaking and writing competence are
the keys to their success in the international work
place.
What errors do foreign lawyers make?
Non-native English legal writers often make mistakes
in content and writing. The main content error is
assuming that all readers share their cultural and
legal context. They make errors in grammar, vocab-
ulary, spelling, punctuation, tone, linkages, and
layout. Let’s consider these cultural and writing
errors in six classes (of which only the first three
are unique to non-native English speakers):
•Learner errors
•“Signature” errors
•Misjudged cultural assumptions
•Problems with flow and tone
•Proofreading errors
•Poor writing style.
Learner errors
Non-native English speakers’ errors are rather like
a foreign accent. A light accent does not affect
understanding but a thick accent does. Similarly,
occasional errors do not affect a text’s readability,
but endemic errors do.
Because they are all learners of English, they nearly
all make mistakes. Learners with upper intermed-
iate English or better can cope with legal writing if
they use plain English. (See my article in Clarity No
45 (Dec 2000), “Plain English is a Gift for Foreign
Lawyers”). Less competent users of English do bet-
ter to use a translator. Editing a garbled English text
takes longer and is less reliable than translation,
because the native English editor has to guess the
meaning.
“Signature” errors
When language learners transfer some of the patterns
of their mother tongue to English they make “sign-
ature” errors. Dunglish, for example, is Dutch that’s
gone English2 and Japalish is Japanese that’s gone
English3.
Another type of sub-English is EuroEnglish. This is
the insider-speak of the European institutions, and
is as much a dialect to outsiders as legalese is to non-
lawyers. EuroEnglish is especially unintelligible to
native English speakers with no knowledge of Euro-
pean languages. Take this meaningless sentence:
The modalities of the situation dictated a
complicated solution.
Modalities, a word with French roots, is a chameleon
word whose meaning changes according to context.
Since its natural habitat seems to be abstract, jargon-
ised sentences, nothing short of a rewrite is usually
necessary to expose meaning. In the example, the
writer might have been trying to say that:
Involved procedures were needed to solve the
complicated situation.
The closer a language is to English, the more likely a
learner is to transfer signature errors. Linguistically,
English is a fixed-word-order, non-inflecting, subject-
prominent language. In other words, English is a
language where meaning comes from the order of
the words and not how they are modified by others
around them. Being a subject-prominent language
requires the order: subject-verb-object (S-V-O). The
expected pattern of an English sentence is thus Who-
Did-What-To-Whom or What?, followed or preceded
by When?-How?-Why? detail. This is why plain
English experts advocate writing short sentences in
the active voice without embedded clauses.
The table on page 27 gives examples of signature
errors.
Just fix the English
(continued)
Clarity 53 May 2005 27
Misjudged cultural assumptions
Cultural myopia occurs on two levels. At the
country level, the writer assumes a universal
understanding of how the world works. Take for
example “business hours” which vary from place
to place. To avoid confusion, a writer must spell out
opening and closing times, not forgetting the lunch
“hour” or siesta zizzzz.
In legal practice, cultural myopia shows in assump-
tions made about the way the law works. Every
lawyer knows that the civil and common law
systems are different, yet lawyers in different
jurisdictions sometimes fail to set out the basic
assumptions that underpin their advice. Consider
the rules of inheritance. In Belgium forced-heirship
rules override conflicting provisions in a testator’s
will. Unless this is explained to a lawyer who is
used to testamentary freedom, that lawyer is likely
to assume that the Belgian has made a mistake in
applying the terms of the will.
Problems with flow and tone
1. Linkages: tone and flow
Untrained writers often find it difficult to strike the
right tone because they cannot manage smooth
linkages. Sometimes this is because they have not
mastered the use of subordinating conjunctions
(although, because, when) and conjunctive adverbs
(however, moreover) or have fallen for the myth that it
is grammatically incorrect to start sentences with
coordinating conjunctions (and, or, but).
The end of an English sentence carries the rhetorical
stress. Putting old information before new creates
flow in a text. Sometimes to achieve flow, S-V-O
word order must be surrendered in favour of the
passive voice’s O-V-S order. Reversing the order
allows the writer to lead the new sentence with
information picked up from the previous sentence.
Consider this example taken from Michèle M
Asprey’s Plain Language for Lawyers4:
To acquit the accused, the jury must believe the
accused’s alibi. The alibi must be confirmed by
the evidence.
The focus in Dutch sentences is the reverse of
English, leading many Dutch writers to “frontally
overload” their English sentences. Joy Burrough-
Boenisch5 gives this example of refocusing
Dunglish to English:
Especially in the social sciences, a clear bias can
be observed in the development of models.
(Dunglish)
A clear bias can be observed in the development
of models, especially in the social sciences.
(English)
Examples of signature errors
Dutch (NL), French (FR), German (DE), Spanish (ES), Japanese (JP) General (Gen)
False cognates DE: The actual situation is serious current
ES: She is embarrassed with a boy pregnant
FR: The market is fiercely concurrent competitive
NL: Her death was dramatic tragic
Translation errors DE: He did not advise the price correctly guess
ES: Her book has 5 years old is
FR: The event arrived in 2000 happened
NL: He controlled the accounts checked
JP: He is 6 feet high tall
Abbreviations— Gen: f.e. e.g. (for example)
not used in English Gen: i.r.t. in regard to
Punctuation— Gen: A Panda eats shoots. A panda eats shoots.
incorrect Gen: “What nonsense”! “What nonsense!”
Gen: When will you come. When will you come?
Unidiomatic English Gen: When I and you arrive he’ll be happy you and I
Gen: Later or sooner he will agree sooner or later
Gen: That’s less or more correct more or less
Gen: His carriage and horse were out horse and carriage
28 Clarity 53 May 2005
2. Passive voice
Many non-native English lawyers overuse the passive
voice believing it creates the formal tone appropriate
for legal writing. They may do this because this is how
they write in their mother tongue or because they are
imitating poor examples of English legal writing.
3. Tense
Some non-native English writing conventions do
not transfer to English. For example, some Euro-
peans record minutes of meetings in the present
tense, not realising that English requires the simple
past tense.
4. Blockages and focus
Most native English speakers instinctively recognise
stilted English but many have difficulty in freeing
blockages and refocusing sentences, let alone
explaining why the changes are needed. Overly
confident non-native English writers resent native
English editors who cannot justify their changes,
even if those changes result in flowing, idiomatic
English.
Proofreading errors
Diligent users of English can proofread their own
texts for spelling, grammar and punctuation errors
by using Microsoft Word’s spell- and grammar-
checker. Checking for deviations from a firm’s
styleguide, if any, is more painstaking but nonethe-
less essential. A customised style-checker, however,
does the job faster and better than a bored human.
Poor writing style
Poor native users of English make the mistake of
writing long, complex sentences redolent with the
style faults listed in the table below.
Style faults
•Passive verbs •Clichés—ordinary
& business
•Nominalisations •Redundancies
•Misusing words •Tautologies
•Confusing words •Overwriting
•Archaic words •Weak modifiers
•Foreign words •Cross referencing
•Complex words •Elegant variation
•Jargon •Abstractions
When non-native English lawyers ape traditional
(poor) English legal writing it is often faster and
better to rewrite sentences than to edit them. Teasing
out non-native English speaker errors from complex
sentences riddled with style faults is more effort
than the job is worth. In cases of truly dreadful
writing, the editor may end up ghost-writing the
entire text. If a text is to be assessed— such as a
doctoral thesis—rewriting raises ethical issues.
Should an editor speak the non-native
English speaker’s language?
Fluency in the non-native English speaker’s lang-
uage can help an English editor pick up obvious
transfer mistakes and odd literal translations. If the
native English editor is also familiar with the non-
native English speaker’s culture, the editor will
readily spot cultural gaps in understanding which
need bridging. Countries and professions have
cultures. For example, a Brazilian may not think to
explain that insuring households in Brazil is a
government-run monopoly. Similarly, a civil law
practitioner may not realize that certain concepts
deriving from Roman law are foreign to common-
law practitioners.
Living in the non-native English speaker’s country
has a downside. Editors can lose their grip on
English when immersed in another culture. One’s
sensitivity to sentences like “I’ve been working here
since 10 years” dulls with time and repetition.
Can content be separated from writing?
Since the purpose of writing is to convey meaning,
simply removing non-native English speaker’s
errors and style faults is often insufficient to convey
meaning, as the following excursion into linguistics
shows.
•Correct but meaningless
Leading linguist, Noel Chomsky6, gives this
example:
Colorless green ideas sleep furiously.
•Correct but ambiguous
Please remove all your clothes when the
washer’s light goes out. (sign in a laundry)
•Correct but confusing
This charter is neither extensive nor exhaustive.
Plain language expert, Martin Cutts, in his Oxford
Guide to Plain English7 says the confused public
interpreted this sentence to mean:
This charter is neither costly nor tiring.
As Cutts says the government would have done
better to write:
This charter doesn’t try to give you every detail.
•Correct but illogical
Bargain basement upstairs. (department store sign)
•Incorrect abbreviated writing (texting)
RU OK 4 2Nite? It’d B GR8 2 C U!
Just fix the English
(continued)
Clarity 53 May 2005 29
•Incorrect (jumbled) lettering
Seieng is bleivneig, rghit? It deosn’t mttaer what
oerdr the ltteers in a wrod are so lnog as the frist
and lsat ltteer aer in the rghit pclae, bcuseae we do
not raed ervery lteter but the word as a ttoal.
•Incorrect capitalization
oNLy ThE GooD aRe ReWaRdED.
•Incorrect spelling creating wordplay
Bach in a minuet. (sign on a music shop)
Now let’s try classifying the following
ungrammatical non-native English speakers’
sentences as acceptable, understandable, guessable8
and unintelligible.
•Acceptable?
Please learn me how to sing. (teach)
•Understandable?
Please me teach English. (teach me)
•Guessable?
The veteran typist did the job quickly. (Japalish
for: expert)
•Unintelligible?
I was cried by the baby (Japalish for: I couldn’t
lull the baby)
Managing changes
When a writer believes that the editor has changed
the meaning of a sentence the solution is rarely to
reinstate the original text. If the editor didn’t under-
stand something then the reader probably won’t
either (even if the reader may know more about the
subject than the English editor). Instead, the writer
and editor need to agree an acceptable rewrite.
Writers should not judge an editor who asks ques-
tions and makes “wrong” guesses as incompetent.
The line of least resistance (and greatest profitability)
for an editor is to pander to clumsy writers’ fragile
egos. Fewer edits reinforce clumsy writers’ misplaced
confidence that they write well. More realistic
writers respect the contribution an editor can make,
invite the editor to do whatever is necessary to make
the text comprehensible for the reader, and so help
both the writer and the reader.
Do-it-yourself fixing for non-native
English speakers
Once trained in plain English writing techniques,
and armed with customised editing software, non-
native English lawyers are able to correct common
style and translation errors. My work with inter-
national firms is aimed at making their multilingual
lawyers confident and self-sufficient English writers,
who depend on native English legal editors only for
honing content to meet their foreign readers’ needs
and expectations.
At Clarity’s July 2005 conference in France, I will
show how DIY editing saves money and fragile egos
by allowing non-native English lawyers to:
•pick up predictable translation and signature
errors
•access legal know-how relevant to an inter-
national audience
•enforce adherence to housestyle rules
•measure writing quality
•promote plain writing.
© C Rawson 2005
legal_easy@hotmail.com
1“The Plain English movement in the United
States”, Prof Carl Felsenfeld, Canadian Business Law
Journal, vol 6, 1981-82.
2Righting English that’s gone Dutch, 2nd ed, Joy
Burrough-Boenisch, Kemper Conseil.
3Noriko Nakanishi, an MA linguistics student at
Kobe City University of Foreign Studies is studying
the extent to which readers understand Japalish.
You can help her by filling out her questionnaire
at <http://members.goo.ne.jp/home/
questionnaire2005>.
4Michèle M Asprey, Plain Language for Lawyers, 3rd
ed, Federation Press, at page 141.
5Joy Burrough-Boenisch (see endnote 2 above).
6Noam Chomsky, quoted by Steven Pinker in The
Language Instinct, 1994, Penguin Books, at page 88.
7Martin Cutts, Oxford Guide to Plain English, 2nd ed,
OUP, 2004, at page 11.
8Noriko Nakanishi’s questionnaires allow subjects
to choose from these categories when assessing
Japalish sentences (see endnote 3 above).
Catherine Rawson helps
multilingual organisations
ensure that their staff write
clear, concise, readable
English, regardless of their
native language. By using
tailored software to rein-
force Catherine’s plain Eng-
lish training, her clients
are able to monitor the
quality of their English
communications. Catherine
has worked as a lawyer on
three continents, is fluent
in German and gets by in
French and Portuguese.
Wanted: a pithy
shortform description
Catherine needs your help. See page 38.
30 Clarity 53 May 2005
Christopher Williams
Associate Professor of English at the Faculty of Political
Science, University of Bari, Italy
After an encouraging start, the state-sponsored plain
language initiative ‘Progetto Chiaro!’ has fizzled out.
So Italians are once again left to grapple with the
complexities of bureaucratese, an area still in need of
drastic reform.
I wish to thank Giovanni Vetritto for his invaluable
comments.
Anyone who has lived and worked in Italy will be
only too aware of the mind-boggling complexity and
sluggishness of Italian bureaucracy and of Italy’s
legal system. Small wonder, then, that there have
been calls for reforming the language of officialdom
to make it more user-friendly. But while in Britain,
the USA and other English-speaking countries, the
plain language movement has mainly found expres-
sion outside government institutions, the nearest
equivalent in Italy, known as the Progetto Chiaro!,
is part of the Department of Public Administration
(Dipartimento della Funzione Pubblica).
The Department was set up in 1983 as part of the
drive to modernise public administration, but it was
only in the 1990s that a concerted effort was made to
improve its quality and efficiency. This culminated
in the setting up of Chiaro!, the so-called ‘Project for
the simplification of administrative language’
<www.funzionepubblica.it/chiaro/>.
The language of officialdom
One of the characteristics, then, of the plain language
movement in Italy is that it has so far concentrated
its attention mainly on the language of officialdom
and has tended to be less concerned than its English-
speaking counterparts with, say, consumer rights
such as ensuring that leaflets contained in prescribed
medicines are comprehensible to non-experts, or
with the language of prescriptive legal texts. Of
course, the language of officialdom spills over into
the legal field; moreover, in recent years attempts
have been made within the Italian Parliament to
improve the quality of legislative drafting, as Stefano
Murgia and Giovanni Rizzoni pointed out in Clarity
No. 47 (May 2002, page 20).
Thus, on the one hand, the focus of the Progetto
Chiaro! is more limited than that of, say, the plain
English movements in the UK, Australia and Canada
but on the other hand, given the pervasiveness of
state officialdom in most people’s lives in Italy, the
project has undoubtedly hit on the area that was
most desperately in need of reform. A guiding
source of inspiration behind the proposed reform
of bureaucratese has been Alfredo Fioritto whose
Manuale di Stile. Strumenti per Semplificare il
Linguaggio delle Amministrazioni Pubbliche was first
published in 1997. The manual provides practical
advice on how to draft administrative documents,
regulations, contracts etc (see Francesca Nassi’s
review in Clarity No. 47 (page 23).
Gathering momentum
The most fruitful period in the drive towards the
simplification of administrative language in Italy
seems to have been between 1994 and 2002. It was
in 1994 that the scheme for rewriting administrative
documents was launched with Sabino Cassese as
Minister (his Codice di Stile of 1993 was the fore-
runner to Fioritto’s manual). Under his successor,
Franco Bassanini, the project continued to flourish.
On 8 May 2002, with Franco Frattini as Minister, the
so-called ‘Frattini directive’ was introduced calling
for an overhaul of administrative language by
establishing drafting rules. To help in applying the
directive the Progetto Chiaro! was set up that year,
with an online consultancy service for local govern-
ment employees and officials seeking guidance on
how to draft administrative documents in accord-
ance with the directive.
The directive’s ten ‘rules for writing texts’
The first part of the directive contains the (rather
opaquely worded) ‘rules of communication and
legal structure’, such as making sure the content of
the text is always clear, always having a clear idea
of who the recipients of the text will be, inserting
information in a logical way, using notes, attach-
ments and tables to lighten the text etc. This is
followed by ten ‘rules for writing texts’:
1. Write short sentences.
2. Use words from everyday language.
3. Use technical terms sparingly and explain
them.
Progetto Chiaro!Progetto Chiaro!
Progetto Chiaro!Progetto Chiaro!
Progetto Chiaro!
and the plain language movement in Italy
Clarity 53 May 2005 31
4. Use abbreviations and acronyms as little as
possible.
5. Use verbs in the active and in the affirmative
form.
6. Connect words and sentences briefly and
clearly.
7. Be consistent when using capital letters, small
letters and punctuation.
8. Avoid neologisms, foreign words and Latinisms.
9. Use the indicative form rather than the sub-
junctive where possible.
10. Make sure the text is visually pleasing (i.e. use
what modern technology has to offer, but don’t
get carried away!).
Sentence length, subjunctives and passives
One area where there is certainly room for reform—
not just in legal or bureaucratic language—is that
of sentence length. Not surprisingly it is put first in
the list of rules above. There would seem to be an
ingrained tradition in Italy of writing long sentences:
anyone perusing the average academic textbook in
Italian will see what I mean, with sentences laden
with subordinate and parenthetical clauses.
Rule 9 is an interesting case. While subjunctives are
almost non-existent in modern English they repre-
sent roughly 10 per cent of all verbal constructions
in Italian legal texts. But in my opinion their use
does not generate any particular ambiguity (they
always refer to hypothetical situations); they simply
make the text sound more formal (people tend to
‘drop’ their subjunctives in informal conversation).
And, in common with many other countries, the
directive calls for a reduction in the use of the pas-
sive, even if it is less frequently adopted in Italian
(about 20% of verbal constructions in prescriptive
texts are in the passive) than it is in English (about
25%).
Losing momentum
Unfortunately, the momentum favouring language
reform came to an abrupt halt not long after the
directive was passed, as can be witnessed by visiting
the website where the information and documen-
tation have not been updated for three years. When
I emailed the address provided on the website for
those seeking further information or advice, my
email bounced back and I was informed that the
user was unknown. The implicit message was, alas,
molto chiaro! It was only after further investigation
that I was informed that the project had been given a
limited time span, after which it was shut down
altogether and has not since been revived.
Top down
The hiatus in the activities of the Progetto Chiaro!
reveals one of the inherent weaknesses in a move-
ment that springs from within the state itself rather
than from the grassroots, namely that much depends
on the interests and priorities of individual ministers.
This is not to say that the average citizen in Italy
does not moan about the incomprehensibility of offi-
cial documents, but there is simply not much of a
tradition in Italy as there is in, say, the UK, in forming
pressure groups to do something about it. It is often
the case in Italy that reforms take place as a result of
adopting models from abroad rather than as a result
of pressure from within.
Legal language
There are several possible reasons why legal lang-
uage tends not to be the main focus of criticism in
Italy as it is in most English-speaking countries.
First of all, the type of language in which laws are
drafted in Italy is not perceived as being as archaic
or idiosyncratic as it is in English-speaking coun-
tries. There are few equivalents to the hereinafters
and aforetosaids that sound like something from the
Elizabethan age. Laws drafted in Italian may not
always be easy to follow, but they do not sound
particularly antiquated. Secondly, like most other
countries in continental Europe, by far the most
commonly-used tense used in prescriptive texts in
Italian is the present indicative, constituting two-
thirds of all finite verbal constructions. So there is
no ambiguity as there is often claimed to be in Eng-
lish between shall and the present tense: in the vast
majority of cases shall would be rendered as the
present simple in Italian. Può and possono (respect-
ively, third person singular and plural of the modal
verb potere = to be able to) are the equivalent of may,
used for expressing discretion or, in the negative
form, prohibition; while deve and devono (respect-
ively, third person singular and plural of the modal
verb dovere = to have to) are the equivalent of must,
used for expressing legal requirements or condi-
tions. To the best of my knowledge the choice of
verbal constructions is not a major issue in drafting
legislation in Italy.
Changing perspective
Another difference from the position in the UK or
the USA, for example, is that there is no tradition of
‘plain writing’ courses in Italy. Fioritto’s manual
stands out like a beacon, and it has only given rise
to one or two isolated initiatives in recent years.
Summing up, then, the situation of plain language
in Italy has undoubtedly improved in the last ten
years. It has been officially recognised that there is a
problem with the language of public administration
and it has been addressed, at least in part. What is
lacking, rather, is a widespread determination
among the general public and the state to apply
plain language principles to other areas where citi-
zens may feel excluded simply because they cannot
understand what is being said. While consumer
32 Clarity 53 May 2005
Christopher Williams
was born in Nottingham
and graduated in Modern
Languages in London in
1974, the year he moved
to Italy. He is currently
Associate Professor of Eng-
lish at the Political Science
Faculty of Bari. He also
teaches English at the Law
Faculty at Foggia Uni-
versity. He has a long
experience of translating
legal texts, mainly in
labour law, from Italian
into English. He has pub-
lished several articles on legal English and has just completed
a book, Tradition and Change in Legal English: Verbal
Constructions in Prescriptive Texts, published by Peter
Lang.
movements are fairly active in Italy, they have not yet
fully grasped that plain language lies at the heart of
the desire for reform and change. Few people in Italy
would deny that abstruse language can be a problem,
but there is not yet the perception that clarity begins
at home (apologies for the pun!), and that lasting
results can only be achieved by forming grassroots
associations to tackle the practical issues at hand.
© C Williams 2005
cjwilliams72@hotmail.com
Progetto Chiaro! and the plain language
movement in Italy
(continued)
ORDERING YOUR COPY
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PLAIN LANGUAGE FOR LAWYERS
PLAIN LANGUAGE FOR LAWYERS
3RD EDITION
3RD EDITION
Michèle M Asprey
New
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Clarity 53 May 2005 33
Cheryl Stephens
Plain language consultant, legal marketing
and development coach, Vancouver, Canada
I want to share with you some of the lessons I learned
from directly handling one project and from observation
as a participant in another.
The two multilingual projects:
1. Online Legal and Court-Related Dictionary
2. Plain Train, an online training course in plain
language
The biggest lesson I learned: the bigger and more
complex the project, the more significant the “project
management” needed.
First, you have to remember to include a line item in
the budget for project management. Then you have
to decide who will do it. If it is you, then I highly
recommend you take a short-course in project man-
agement from a local institution.
Second, I advise you to take on such projects only if
you are competent in the languages of the project. Of
course, that is not always possible, as I’ll discuss
later.
It is difficult to understand the problems arising in
one language when you do not know that language.
Consultants working in other languages may be
your experts in that language but they will need a
great deal of guidance from the project manager on
language issues—more than I ever imagined. By
language issues I mean the register, and the choices
of vocabulary and other factors that the particular
audience and purpose require you to make.
The next concern arises with testing results on the
foreign language materials when you do not know
that language. You have to trust completely your
language expert who may have a different sense of
“plain language” than you or the project funders.
1. Online dictionary
The Multilingual Online Legal and Court-Related
Dictionary is funded by the Law Foundation of
British Columbia and managed by the Court
Interpreter’s Program at Vancouver Community
College. This dictionary provides the equivalent to
an English term in five languages: Russian, Vietna-
mese, Mandarin, Farsi, Punjabi, and Spanish.
The process of producing the legal terminology
The project, which includes about 4,500 entries in
each language, was organized to provide proof of
the validity of the plain language. This proof came
from linking to existing dictionary definitions
which were more formal or legalistic.
The project began from a longer English word list
prepared by a court interpreter and reviewed by two
judges and a lawyer who whittled it down to 5000
words. Later it was reduced again by eliminating
words that are used in their common dictionary
meanings. It was expanded by updating the list as
new laws presented new terminology during the 3
year project. Also, each variant of a word is defined
separately. Some words are defined differently when
used as both verbs and nouns, in both litigation and
property, or in a local or national context (each
variant is described as a term).
A legal researcher reviewed recent court decisions to
determine the actual and current use of the word in
the local legal system (the term). Then the researcher
reviewed popular English dictionaries to discover
an existing dictionary definition that suited the
usage (the formal definition). When a suitable defini-
tion was not available, the researcher turned to legal
dictionaries or wrote his or her own definition.
Then the researcher located an example of the word
used in context (the context). In a few cases these
examples came from court cases or other legal docu-
ments. But whenever possible, the example comes
from a popular text so that the use is comprehensible.
At this point the plain language consultant trained
in law (known to the project as the Wizard) reviewed
and reconsidered all that material. Then she wrote a
plain language definition identified as the casual
definition. A professional terminologist dealt with
about 1500 slang or technical words that are often
used in criminal or family court.
Now we had the full term record consisting of the
term, formal definition, context, casual definition and
other components. The formal definitions obtained
from commercial dictionaries are not included in the
online publication, for copyright reasons. The term
record will appear online as in this example.
Canada’s multilingualmultilingual
multilingualmultilingual
multilingual
plain language projects
34 Clarity 53 May 2005
English
Term tort law
Part of Speech noun phrase
Casual Definition field of law devoted to
compensating injury
suffered by a person or their
property under common law
or private rights
Context/Example While there has been much
debate about the liability of
the mentally ill in the
context of *tort law*,
considerable uncertainty
still abounds...the topic
exemplifies the confusion
that has plagued this area
of the law.
Source of Context Fiala v. MacDonald,
2001abca169,Source:
<http://www.canlii.org/
ab/cas/abca/2001/
2001ab c a169.html>
Synonyms and tort; tortious
Variants of
“tort law”
A lawyer acquainted with plain language issues
reviewed the entire term record and checked the legal
validity of the casual definition. This sometimes led
to a negotiation and revision of the casual definition.
The term record that resulted from this research and
work provided the background support for the for-
eign language terminologists. These English term
records provided a sound understanding of the
Canadian (or specifically British Columbian) use
of the term for determining the closest equivalent
term in the other language. For each language, two
people divided the word list: each dealt with half
the term records and reviewed the work of the other.
We are lucky that Canada is a multi-cultural country
and Vancouver the most rapidly changing city in
the world in that respect. It was possible to find
locally the qualified people in all these languages.
Yet they were not necessarily trained in law in the
country of their language.
It would not be easy to find a project manager who
is fluent in so many languages. It fell to the foreign
language terminologists to share their experiences
and find a way to communicate their common
concerns to the project management:
•There was often no equivalent word to the English
legal term or to the particular use of that word.
Rather than merely translate the English material,
the aim was to create a new term record (or as
many components of it as possible) in the target
language using context examples from materials
originally produced in that language.
•It was also a challenge to find materials in some
languages. There were few resources online in
which a discussion requiring legal terms would
arise.
The working terminologists were operating in Can-
ada, where they had minimal access to research or
reference materials in their own language. This
project would have been better carried out with an
international workforce who could access libraries
of information in their own languages.
2. Plain Train
Plain Train is an online training system currently
hosted by the Plain Language Association INter-
national <plainlanguagenetwork.org/plaintrain/>.
It is based on pre-existing resources:
•A booklet: Plain Language: Clear and Simple
•A formal training curriculum: Trainer ’s Guide to
Plain Language: Clear and Simple
produced by the National Literacy Secretariat of the
Government of Canada and funded by Access to
Justice Network <acjnet.org>.
The original materials were prepared in both Eng-
lish and French, Canada’s official languages.
Canada’s population is about 30 million with 6.7
million speaking primarily French and a large pro-
portion being multilingual.
I managed the project and Janet Dean designed the
curriculum in the transformation of the in-person
training to the online course.
The original French booklet and training program
were not simply translations of the English version,
but were original materials addressing the distinct
character of the language. We based the French
online training on the Canadian French materials.
As project manager, I would have been of more
assistance to the French editor on the project if I
were also bi-lingual. High school French was not
enough; I can only shop in French. From second-
hand observation, it appeared that the problems
that arose for the French training course were:
•Archaic language used by government translators
who had a hand in some of the training materials
•Colloquial or regional nature of the language used
in some of the written material
•Differences of opinion over stylistic issues within
the French language.
Canada’s multilingual plain language
projects
(continued)
Clarity 53 May 2005 35
Nonetheless the program was well received and
continues to be used regularly. Many educational
institutions include the URL on course syllabi. The
entry page for Plain Train receives about 400 hits
every month with about 80 users proceeding to the
French version.
It is so popular that a linguist working in a Euro-
pean state government who was producing a version
of Plain Train in his own language wanted to know
if I could provide the graphics in that language. The
Canadian government holds copyright to the mater-
ials. I never heard from him again so I do not know
the end of the story.
So, I will say again that working on a multi-language
project requires expertise in project management
and people management which must take into ac-
count cultural, in addition to language, differences.
Nonetheless, the personal reward is tremendous
when users value the product and I have received
many emails from users saying they do.
© C Stephens 2005
email@cherylstephens.com
Cheryl Stephens, along
with Kate Harrison,
founded the precursor
to the Plain Language
Association INternational.
A Canadian, Cheryl coaches
lawyers on developing their
professional and business
skills and provides training
in work skills development.
Clarity on the net
Each issue of Clarity since No 40 is posted on the Clarity
website <www.clarity-international.net>. But we do not
post an issue until it is superseded by the next one, so that
members get the chance to read each new issue before the
rest of the world can.
Beyond non-normal
From Flight 427: Anatomy of an Air
Disaster, by Gerry Byrne, Copernicus
Books, 2002, p99.
On July 13, 1993, Boeing issued a 6-page
document as part of a series of occasional
newsletters called Boeing Flight Operations
Review. The new edition had an unwieldy title:
“Guidelines for Situations Which Are Beyond
the Scope of Non-normal Procedures”. The
average person would call a non-normal
procedure on an airplane an emergency of
some kind or other.
36 Clarity 53 May 2005
Myla Kaplan
Attorney, legal writing instructor and legal translator
Haifa, Israel
Hebrew is a plain language fan’s dream, or at least it
should be. It is a wonderfully concise language, which
tends to be plainly spoken and plainly written. However,
as I will discuss below, lawyers in Israel often write in a
style that is anything but plain.
Hebrew is naturally concise and clear
The most dramatically concise feature of Hebrew is
that it is written mostly without vowels. This alone
makes the average Hebrew sentence take up much
less space than its English equivalent. But it is the
condensed Hebrew syntax that really shortens the
sentence: most prepositions and conjunctions are
prefixed onto the word they modify as one letter.
Thus, the little words like “and”, “the”, “to”, “in”,
“as” and “from” (which we all know take up quite
a bit of space in the average English legal document)
tend to disappear in a Hebrew document. Even
compound prepositions such as “to the” and “in
the” can be expressed as a one-letter prefix in Hebrew.
And, possessive pronouns such as “our” and “your”
are often suffixed onto nouns, saving even more
space.
Hebrew’s extreme conciseness can be seen in a
translation of a typical sentence: “In our letter, we
requested that the funds be allocated at the end of
the year.” In English this sentence has 16 words, or
78 characters including spaces. In Hebrew it has
only six words, or a mere 39 characters!1 The lack of
written vowels creates most of the volume difference
of course, but many words are saved because all of
the prepositions are attached to their subjects. For
example, the phrases “In our letter”, “at the end”,
and “of the year” are each expressed as one word in
Hebrew.
Hebrew is by nature a coherent language. Most verbs
are regular and easily conjugated. Related words
tend to have a common root making it easy for
readers to interpret words, even in legal language.
For example, the words for contractual obligations—
binding, charge, commit, debit, debt, debtor, duty,
liability, must, and obligation—all contain the same
three-letter root in Hebrew.
Legal Hebrew is neither concise nor clear
Lawyers in Israel, like many lawyers everywhere,
seem to prefer a dense and highly formal style. Legal
documents are rife with long and complex sentences,
passive voice and archaic language. This phenom-
enon of Hebrew legalese is especially ironic, consid-
ering that its predecessor, the ancient Hebrew legal
language in the Bible, is a model of clarity. The British
are partly to “blame” for modern-day legalese, since
modern legal Hebrew developed during the thirty
years the British ruled under mandate, establishing
Israel’s court system and drafting many of the cur-
rent laws.
American English has recently had a strong influ-
ence on legal language due to the close business ties
between Israel and the US.
Unfortunately, the international trend toward plain
language has not yet taken hold in Israel; legalese
conventions that have been dropped from British
and American documents are still very popular in
their Hebrew counterparts, particularly in contracts.
Contracts in Israel usually contain a long list of
recitals, whether they are helpful or not, and each
recital begins with an equally archaic equivalent of
“whereas”. Contract obligations are often prefaced
with useless legalese such as “it is expressly agreed
hereby by the parties that…” or “in order to remove
any doubt, it is hereby clarified that…”. This is
particularly true of the documents large law firms
produce thanks to their heavy reliance on old-form
precedents. Solo practitioners are more likely to
draft their own contracts and do so in clear,
readable Hebrew.
Hebrew “lawyer’s letters” have their own special
legalese. Letters to adversaries inevitably start with
a formal introduction such as: “On behalf of my
client ABC Ltd., I hereby contact you in the above-
referenced matter as follows:”. The word used for
“client” (marshi/marshati) is so archaic that many
lay people do not know what it means. When even
British lawyers are adopting a much less formal
style of letter writing, it is strange that lawyers in
this very informal society continue to use archaic
language in correspondence. After the introduction,
letters generally launch into a numbered list of short
points, describing the dispute and making demands
for payment or action. Presumably the crisp style
Legalese of Legalese of
Legalese of Legalese of
Legalese of biblical biblical
biblical biblical
biblical proportions:proportions:
proportions:proportions:
proportions:
some observations on legal language in Israelsome observations on legal language in Israel
some observations on legal language in Israelsome observations on legal language in Israel
some observations on legal language in Israel
Clarity 53 May 2005 37
and numbered points have their roots in the
military, where nearly every Israeli lawyer spends
several years before starting law school.
Attitudes toward plain language in Israel
In the legal writing workshops I teach, I take an
informal poll to gauge Israeli lawyers’ attitudes
toward plain legal language. Many of these lawyers
recognize the benefits of plain legal English, but
object to using plain legal Hebrew in their own
writing. Like lawyers in other countries, they often
perceive formal legal language as being more
impressive and more appropriate for the legal
profession. In a country with a lawyer for every 200
residents, lawyers want to maintain some distance
between themselves and the public. They fear that
clients will not respect lawyers if they think they
can write the documents themselves. Some lawyers
also believe that legal matters are too complex for
plain language, and that obscure and complex
language protects client interests better.
An interesting observation that I hear from Israeli
lawyers is that a ruling by Israel’s Supreme Court is
deterring them from drafting contracts in plain
language. Attorneys and law students in Israel often
quote the revolutionary 1993 Apropim decision,
which says that courts dealing with contract
disputes should look beyond the terms of a contract
for the parties’ true intent, even when the contract’s
terms are crystal clear.2 This decision has created a
stir in the legal community, as it leaves even the best
drafted contracts open to court reinterpretation.
Unfortunately, it also seems to be inspiring lawyers
in Israel to bolster their contracts with legalese and
redundancy, so that judges will have less room to
interpret what the parties “really” meant. Of course,
there is no evidence that legalese has ever saved a
contract in court, but it will be hard to convince
lawyers that the opposite is true until the courts
begin to send a signal that clear language is
preferable to legalese.
Despite these problems, I do try to promote clear
legal writing in all the work I do. I relentlessly point
out the advantages of plain legal writing when I
conduct in-house workshops on English legal
writing skills and contract drafting, and in the
continuing legal education courses I teach. I discuss
plain language in the Legal English course I teach to
first-year law students at the University of Haifa, as
I believe it is a good place to guide future lawyers
toward better writing habits. Recently I wrote an
article (in plain Hebrew!) summarizing plain
language movements internationally, and
suggesting that lawyers here strive toward clarity
and readability in their documents. As far as I know,
my article was the first of its kind in Israel. It was
published in a bar association journal and on a
popular legal website, and has received a surprising
amount of positive feedback.
The legal profession in Israel does not seem to be
under any public pressure to make its writing more
accessible to clients. Israel does not have any
legislation requiring the use of plain language. The
Standard Contracts Law offers some protection to
consumers from unfair terms in typical consumer
purchase contracts. Although this law does not
require plain language in consumer contracts, it
does give a special tribunal the right to void or
change any term in a standard contract that
oppresses consumers or gives an unfair advantage
to suppliers that could be oppressive to consumers.
However, the law’s range is limited to contracts that
have “standard” terms determined in advance by
the dominant party for use in multiple transactions
with unspecified third parties.
Translating legal texts from Hebrew to
English and English to Hebrew
Over the years, I have translated every type of legal
document from Hebrew to English and quite a few
from English to Hebrew.
One problem in translating legal documents with
defined terms from English to Hebrew is that
Hebrew has no capital letters. Thus definitions do
not stand out in Hebrew text and often get hidden in
the middle of compound words. For instance, if a
contract says something is “attached to the
Agreement” in English, the words “to the
Agreement” appear as one word in Hebrew, and the
defined term becomes difficult to distinguish,
especially without the capital letter.
When translating from Hebrew to English, I exercise
a wide discretion on word choice, since there are
four or five English equivalents for most Hebrew
words. My policy is to translate into plain language
to improve the readability of the translated
document. Of course, I cannot do this in all cases.
Certain legal documents such as signed contracts,
statutes, and judicial opinions for instance must be
translated to reflect the original Hebrew as nearly
possible. Although I have more leeway when
translating unsigned contracts and other
documents needed for international transactions, I
always ask for permission before “plaining” the
Hebrew in the source document. So far no one has
declined once I explain how a plain language
translation will improve their document. Client
reactions are very positive, especially after I
“retranslate” a legal document from impossible
English legalese into plain English.
Business people react positively to plain language.
This is not surprising, since this audience
appreciates readable, user-friendly documents.
Translating into plain language is less expensive
too. After all, translators are paid by the word. But
even legal clients are invariably pleased with the
results of a plain language translation on their
38 Clarity 53 May 2005
legalese-filled documents. This gives me hope that
lawyers’ objections to plain legal Hebrew are mostly
due to their lack of awareness of its benefits. It often
seems that many lawyers in Israel write the way do
without thinking about the readability or communi-
cativeness of their writing. They assume that reading
legal language has to be a chore because it always
has been, but when they see their writing translated
into clear, concise, readable English, they cannot
help but appreciate it.
© MKaplan 2005
mylakaplan@yahoo.com
1Transliterated, the sentence reads: B’michtaveinu
bikashnu she’yutzku hac’safim besof hashana.
2In State of Israel v Apropos Construction and
Development Co. Ltd., P.D. 49(2) 265, Civil Appeal
4628/93, Justice (currently Chief Justice) A. Barak
created a rule of subjective inquiry into both the
contract’s language and the circumstances under
which the contract was made, even when the
language of the contract is clear. Section 25(a) of
the Contracts Law, however, seems to call for such
an inquiry only when the contract’s language is
unclear: “A contract shall be interpreted in
accordance with the intent of the parties as it
appears in the contract, or, in so far as it does not
appear in the contract, as it appears from the
circumstances.”
Myla Kaplan is an
American-born attorney
licensed to practice in
Israel and New Jersey.
She received a JD from
Georgetown University
Law Center in Washing-
ton DC and an MA in
Communications from
the Hebrew University in
Jerusalem. She is a member
of the Clarity Committee
and Clarity’s Israel
representative.
Legalese of biblical proportions
(continued)
Teachers of English as a foreign language describe their students as:
a. NNS (non-native speakers of English)
b. NNE (non-native users of English)
c. ESL learners (English as a second language learners)
What pithy shortform description can you suggest for lawyers who use English
as a foreign language?
“Foreign lawyers” won’t do because “foreignness” is a matter of perspective
and smacks of cultural insularity. “NNS lawyers” is unsatisfactory because the
contrasting term for native English-speaking lawyers would need to be “NES
lawyers” or “NS lawyers” both of which are clumsy.
Please email your suggestions to Catherine Rawson at legal_easy@hotmail.com
Wanted: a pithy shortform description
Clarity’s annual meeting for 2006 has
been fixed for Saturday, 4 February.
Barring any change of plan it will be
held that morning in London.
Next Clarity
annual meeting
Clarity 53 May 2005 39
Maggie Jo St John
Freelance English for Specific Purposes consultant;
co-ordinator of the voluntary English and community
eco-tourism project with UCA Miraflor, Nicaragua;
world citizen, Birmingham, UK.
In the last issue, an interview with Jesus Mesta introduced
the Mexican government’s initiative on Lenguaje
Ciudadano—Plain Language (Clarity No 52, November
2004, pages 40-41). He spoke of an international confer-
ence to be held on 4 October 2004, referring to it as ’one
step in their three year strategy to reform internal regula-
tions and the first one in changing government-to-citizen
communication’. I was privileged to attend and speak at
that conference.
The Mexicans chose to launch their initiative by
learning from the experience of others. Four of us,
from countries where plain language movements
are prominent, spoke of the approaches, the hurdles
and the successes in our countries and cultures. I
spoke on behalf of Plain Language Commission, an
independent business in the UK. We also observed
the first pilot workshop for civil servants and held
discussions with representatives of the legal
professions.
The conference
Some 800-900 people attended the conference, which
was well-planned and had support at the highest
level. The President, Vicente Fox, sent a special video
message and Juan Carlos Murillo, the Presidential
Office advisor for government innovation, chaired
the day.
The team working for regulatory simplification
recognises that citizens cannot exercise their rights
or fulfil their obligations, if the messages from gov-
ernment institutions lack clarity. They see Citizen’s
Language as a tool to improve transparency, quality
and efficiency within government.
Although we had the same brief, our talks comple-
mented rather than reiterated. We emphasised our
hope that Mexico could learn from the experience
of our countries and ‘skip’ a couple of decades of
procrastination and resistance to change.
I quoted the example of Britain’s Tax Law rewrite:
after many years of saying that they ‘wrote as
plainly as possible’, the Parliamentary Counsel’s
Office finally had to acknowledge that they could
make improvements.
Annetta Cheek from the USA provided good exam-
ples of time and money saved: rewriting one form in
Canada lifted the compliance rate from 40 % to 95%,
while an improved letter is saving the Veterans
Benefits Administration several million dollars a
year.
We emphasised the value of training, the use of
guidelines, and the need to rethink model documents.
And we mentioned that final telling mark of suc-
cess: not one organisation adopting plain language
documents had ever reverted to the original style.
The workshop
Around 20 civil servants attended and were very
positive in their attitude. Lively interaction is a
characteristic (for me) of Mexicans and the work-
shop was no exception.
A common activity in workshops is re-writing a
convoluted text into plainer language. The work-
shop leader used a variation that I found effective.
He used PowerPoint to present a short plain text.
And then he gradually reverted to the original. Each
new slide showed the text with yet another improve-
ment being ‘undone’. To see so clearly how a clear
piece of communication could be mangled was
salutary.
The manual
A manual written for ’those who write in the
Ministry of Public Administration’ was ready for
the conference and every participant received a
copy, as did workshop participants—a good illustra-
tion of the co-ordinated planning that lies behind
this initiative of the Mexican government.
The 48-page guide contains 3 sections:
•A summary of plain language initiatives in Sweden,
Australia, the UK, Canada, the USA and Spain.
•Descriptions of the stages in the writing process
with the focus on audience analysis, planning,
drafting and revising.
•A style and layout guide covering 16 key points.
Each point is explained and illustrated with
‘before’ and ‘after’ examples. The key points fall
into 4 categories: words—simple, precise, essential
and positive; sentences—short, simple structure;
discourse—markers, headings, introductions and
conclusion; layout—lists, tables, diagrams,
contents pages.
Citizen’s Language
Plain language in Mexico
40 Clarity 53 May 2005
Lenguaje Ciudadano
The naming of a new concept is important, and
tricky. The Spanish chose Lenguaje Llano as their
term. Llano, of a surface, means flat, smooth, level,
open. Figuratively it means open, frank, plain and
simple.
I wondered why Mexico had not adopted the same
term. The term, Citizen’s Language, however, reflects
the origin of the movement. The initiative stems
from the Government’s Good Government Agenda
and is part of the strategy to transform itself into a
citizen-driven government, responsive to citizens
and focused on results. It is an internal campaign
and Citizen’s Language is seen as a tool to help
civil servants embrace the cultural shift.
In the wider community the term may ring less
clearly.
The Mexican way
The Mexicans have looked worldwide for best
practice and selected an approach they believe will
work in their context.
They, like the Swedes, are starting at the top. This is
a government issue—not a people’s movement.
Conferences, video conferences and workshops are
spreading the word throughout the Ministry of
Public Administration. As Britain did in the 1980s,
they are eliminating regulations and have a mora-
torium on new ones; there’s a 25% reduction to date
and many others have been standardised between
departments. Training trainers will start in February,
so future regulations should be drafted on plain
language principles.
They are making full use of technology (although
they must recognise that the vast majority of the
population has no access to computers and the
internet). Every participant at the conference received
a CD-ROM of the presentations and there’s been a
very positive response to their website, launched in
December: <www.lenguajeciudadano.gob.mx>
Look out for the Mexican ‘clear language’ awards
and their own standard. Both of these ideas, men-
tioned during the conference, struck a chord. The
Mexicans hope to externally verify documents, as
happens in the UK through non-government organ-
isations such as Plain Language Commission and
Plain English Campaign Ltd. And they are working
on a contest for the best documents of 2005.
Plain language is a way of thinking. Editing can
improve a document, but the best documents place
the reader at the centre of the complete decision-
making process. Getting that message across is
difficult. The sound bites—avoid the passive, use
familiar words, be positive—are remembered more
strongly than the fundamental message.
© M J St John 2005
maggiejo@miraflor.freeserve.co.uk
Maggie Jo St John graduated in Chemistry, has an MSc in
Teaching English for Specific Purposes (TESP) and an MBA.
She taught in science in South America, and lectured in ESP
at Aston University. She has worked freelance since 1987
running ESP and Communication Skills courses for
scientists and business people overseas and in the UK,
training teachers, writing teaching materials, and publishing
books and articles. Her current commitments include:
•running a voluntary project in English and community
eco-tourism on the Miraflor Nature Reserve in Nicaragua;
•teaching professional writing skills courses for UK
businesses and Government Agencies for Plain Language
Commission;
•promoting fair trade.
Citizen’s Language
Plain language in Mexico
(continued)
Hospital signage scandal
From The Sydney Morning Herald, Monday 18 April 2005.
The hospital signage scandal deepens (Column 8, last week). “My
doctor recently directed me to outpatients at St Vincent’s Hospital,”
Roslyn Forest says. “I asked at reception for ‘outpatients’ and followed
their directions, but I couldn’t find it. Finally, with much eye rolling
and patronizing, a woman held my hand and dragged me there. You
know what the sign above the door said? ‘Ambulatory Care’.”
Reprinted with permission from ‘Column 8’, The Sydney Morning Herald.
Clarity 53 May 2005 41
Daniel Cassany, Spain
Lecturer, Universitat Pompeu Fabra, Barcelona, Spain
For thirty years Spain has been striving to improve its
communicative style to create a democratic community
proud of its linguistic and cultural diversity. Progress
has been good but there is still much to do.
This article reviews the communicative style Spain
inherited from the dictatorship, Spain’s conception of
plain language, the goals it set for the four most widely
used languages, and the results achieved.
Spain has seen enormous changes since the dictator-
ship ended in the 1970s. In these thirty years Spain
has moved from a dictatorship to a democracy and
from a centralised government to one closely resem-
bling a federation, with autonomous parliaments
and administrations. Spain joined NATO, the Euro-
pean Council, the European Union, and adopted
the euro.
Languages
While Spanish remains the country’s lingua franca,
Spain recognises four co-official languages:
1. Aranese in a small valley in the Pyrenees
2. Basque in the Basque Country and Navarre
3. Catalan in Catalonia, the Balearic Islands and
Valencia (where it is known as “Valencian”)
4. Galician in Galicia.
The academic community further recognises lang-
uages such as Asturian and the Aragonese Fabla
and languages imported by immigrants even though
they don’t have official status.
Nearly 42% of Spaniards are bilingual or live in
bilingual communities with autonomous govern-
ments, parliaments and administrations. It is not
easy to summarise