Drafting legislation in plain language

It was refreshing to read in the Compass of Jan. 14 that a lawyer no less distinguished than Abraham Thoppil, Chairperson of the Cayman Bar Association, called for legislation to be drafted in plain language. This is long overdue. Cayman has for a long time lagged behind in this and other areas of legislation. If it therefore high time that government legislative drafters made recommendations to the Attorney General and Cabinet on the adoption and implementation of a plain language policy.

Legislation is a principal tool of governance. Therefore, it makes little sense to draft legislation that is technically accurate if those who are governed by it cannot easily understand it. In the worst cases, due to the sometimes convoluted rendering of simple ideas, even lawyers and judges have been known to have difficulty understanding certain legislation. This can lead to decisions that may not have been contemplated by policy makers.

In other parts of the world, the plain English movement has led to drastic changes in the way legislation is drafted. In countries such as Australia, Canada, New Zealand and even in the bastion of conservatism, our own United Kingdom, plain language policies have been in place for decades and it shows in their laws.

That said, it must be noted that, due to certain technical reasons, drafting plain language legislation takes longer than drafting in the old style. Thus in order for this to be achieved, the entire system from the point of proposal to enactment needs to be tweaked to make it more efficient.

It is also worth noting that Cayman has not adopted a strict policy on gender-neutral drafting. To this day, legislation continues to be drafted in the masculine though, thanks to some progressive attitudes among current policy makers, apparently some leeway has been given in this regard. It is time we stopped telling ladies in 21st Century Cayman that the Interpretation Law says that the masculine gender includes females.

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Finally, the state of a country’s legislation is often the first window to that jurisdiction. In this regard, the state of Cayman legislation continues to be at odds with the high standards that exist in Cayman’s institutions. This has to change and change without delay.

Bilika H. Simamba, Consultant Legislative Counsel

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