Guide to fostering the readability of legislative texts

I. Introduction

A. Readability is a natural outcome of legislative drafting

The goal to have a readable legislative text must not be an afterthought in the drafting process; it must be present at every step of the elaboration of the text. The foundation for readability is laid as the legislative counsel works to understand the policy intentions, clarify the drafting instructions and develop a logical organization for the text and in the iterative process of preparing drafts of the legislative text. Modern legislative drafting standards, such as those general ones of the Uniform Law Conference of Canada,1 and the more detailed ones of the Legislative Services Branch of Justice Canada,2 provide the foundation for a readable end product. That is what the objective must be: a fundamentally sound, well-organized, coherent and clear legislative text.

B. The purpose of this guide

In its January of 2012 report3, the Red Tape Reduction Commission recommended "that the Department of Justice continue to develop tools to foster the intelligibility of legislative texts" to improve the clarity and predictability of regulation for business and improve understanding of regulatory requirements. This guide is intended to implement this recommendation by reminding those involved in the development of legislative texts of some readability principles so that legislative texts are as accessible and as easy to understand as possible. This document does not intend to repeat the content of related textbooks, manuals, guides and articles. It provides instead a general approach to drafting legislative texts that are accessible to their readers; it is about viewing the legislative texts through a particular lens to evaluate their readability.

C. Two notes on this guide

1. The intended readers of this guide

This document is intended for those whose work involves the development of legislative texts — legislative counsel, legal counsel, instructing officers and other contributing specialists such as jurilinguists and legistic revisors.

2. For whom are legislative texts to be readable?

Everyone benefits from the readability of legislative texts. From a democratic perspective, all citizens have a duty to know the law. From a practical perspective, readable legislative texts are more likely to be complied with and are easier to administer.

II. Some keys to readability

Here are nine techniques to achieve the readability of a legislative text. Though not an exhaustive list, it is an effort to highlight the most useful techniques. The list begins with the most general matters and ends with the more detailed ones. You enhance the readability of a legislative text by

  • writing for the readers;
  • giving readers enough overall context to understand the purpose of the text;
  • organizing the material well;
  • showing readers the overall organization of the text;
  • helping readers find the information they are looking for;
  • giving readers the key structural elements of each legislative sentence as early as possible;
  • creating a logical flow from sentence to sentence;
  • using paragraphing when the elements of a legislative sentence lend themselves to a list;
  • keeping the language as simple as possible.

A. Write for the readers

If there is an overriding principle to readability, it is that you must write in order to communicate clearly with the intended readers, the habitual readers mentioned above. All other advice is, to some degree, simply an application of this principle.

B. Give overall context

It helps a reader to know the purpose of, and the context for, a legislative text. For example, if the purpose of a regulation is to govern the operation of a particular device, it is useful to know this from the outset. Some ways that you can give this information to the reader include

  • an appropriate title for the Act or regulation
  • a concise but informative preamble
  • a purpose provision

1. An appropriate title

The most basic technique by which you can provide context to the reader is to give the Act or regulation an appropriate title. So, for example, if you are working on the regulation just referred to, a suitable name might be the "[Name of device] Operating Regulations". An Act dealing with the entire field of telecommunications should be named something like the "Telecommunications Act". A reader to whom a legislative text applies looks to a legislative title for a neutral, objective indication of its subject or content. Because legislation generally endures over time, the title should be widely understood and deliver meaningful information about its substance.

2. The preamble

Every enactment is contained within a kind of enacting envelope. Sometimes this envelope consists only of the enacting formula (for example, "Her Majesty, by and with the advice and consent of the Senate and the House of Commons, enacts as follows"), but it can sometimes include a preamble, where appropriate — some important facts that provide context for the enactment. If the enacting envelope includes a preamble, the contextual facts it contains can help readers understand the purposes of the enactment4. With regard to regulations, the enacting formula (called order in council if the Governor in Council is the regulation-maker and executive order with respect to other regulating authorities) contains a preamble when the enabling Act providing for the making of the regulations requires some conditions to be met before their making. For Acts, the enacting formula, with or without a preamble, is the instrument by which Parliament enacts the text. Annex 1 contains examples of preambles.

From the viewpoint of readability, a preamble should be a concise statement of only the necessary, relevant facts — for example, that Canada is party to an international treaty incorporated by the legislation into domestic law, any required prepublication or consultation of a proposed regulation has been carried out or the regulation-maker has formed the opinion that is a necessary pre-condition for the making of the regulation5. If you present these facts simply and in a logical order, the reader will have the essential context for the making of the legislation and useful information for understanding its purpose.

In many cases, a legislative text will not need a separate preamble; its title will give readers the overall contextual information needed to begin an informed reading of it. However, by convention, the enacting formula usually includes other information. In an Act, the traditional enacting formula includes mention of the advice and consent of the Senate and House of Commons; in a regulation made by the Governor in Council the enacting formula will generally include a mention of the recommending minister and the enabling authority under which the regulation is made. While these elements are inserted into the enacting formula, they are similar to a preamble in that they recite relevant contextual facts.

3. The purpose provision

A provision stating the purpose of a legislative text, or of a Part of one, can also give the reader useful general contextual information. Consider the following examples:

Purpose
7. The purpose of these Regulations is to implement with respect to the project lands a legal regime that is harmonized with the legal regime of Alberta that governs oil sands mining and related activities.
Purpose of Act
3. The purpose of this Act is to establish, as an alternative to the existing penal system and as a supplement to existing enforcement measures, a fair and efficient administrative monetary penalty system for the enforcement of the Environmental Acts.
Purpose of Part
122.1 The purpose of this Part is to prevent accidents and injury to health arising out of, linked with or occurring in the course of employment to which this Part applies.

From the point of view of the habitual readers of the legislative text or Part, a purpose provision is most useful when it is focused on the text's legal policy purposes. What is this legislative text or Part intended to accomplish in law? Will it create a new legal framework for participation in an industry? Will it establish a new entity to resolve certain issues or disputes? To give the reader the big picture, a purpose provision should focus on stating simply and clearly the text's legal policy objective.

C. Organize the text well

When you know what will be in the legislative text, organizing it in a logical way is one of the most helpful things you can do for the readers. This guide cannot exhaustively address the issue of organization6, but a few things can be highlighted. The guidance can only be general, because the best organization of the text will flow naturally from the material itself and may vary markedly from one text to another.

  1. There is a conventional structure for Canadian legislative texts that sets out the typical order for certain types of provisions. If you adopt this structure in the text, you will help any reader who is familiar with the legislative format to find things in the text. The conventions are set out in Annex 2.
  2. Within the main body of substantive provisions, the text should be divided into meaningful units (if the text is more than a page or two). You need to keep in mind that any lengthier text will generally be divided into several levels.
  3. Each level of organization needs a theme (though it may well be different at each level). The divisions at each level must deal with the theme entirely while avoiding overlap between divisions. For example, if one's theme for a regulation dealing with household pets is by species, one could have divisions for dogs, cats, birds, and others. It would not be appropriate, however, to have only divisions for dogs, cats and birds, as that would not cover the territory completely (there are household pets other than ones in these three classes). It would not be appropriate to have divisions for dogs, furred species, feathered species and others, since the divisions for dogs and furred species overlap.
  4. Within a level of text organization, you should look for a logical way to order the divisions. Consider, for example, an order of most general to least general; a chronological or sequential order for material with a procedural aspect; or, for a regulation that applies differently in different geographical zones, a directional order, say, east to west.
  5. Since any division contains not only other headings, but legislative provisions themselves, you need to choose a logical order for your provisions. Consider, for example, an order proceeding from general to specific, or more important to less important. Ask yourself what order would best suit your primary intended audience. For example, a division that is primarily about the duties of regulated entities should be organized in a way that is most useful to those entities.

D. Show the high-level organization of the text

Once you have created a logical and well-organized text, it is useful to readers to be able to easily discover its structure and organization easily. This can be done by using well-chosen headings and marginal notes.

A heading should communicate the overall theme of the segment it introduces, with enough information to distinguish it from other segments of the same level. For example, imagine an immigration-related regulation with two segments dealing with applications for admission. The headings of both should include that information. However, if one segment deals with applications for admission on the basis of family relationships and the other on the basis of business investment, the headings should also include some indication of these distinguishing factors. Thus, the headings might be something like "Applications for Admission – Family" and "Applications for Admission – Business".

The principle for good marginal notes is similar: identify the overall theme of the provision.

E. Help readers find the information they are looking for

1. Give readers points of reference

A reader should know the high-level organization of a text but also where they are at any moment in relation to that organizational structure.

However, because such points of reference are created by the legislation publication software, the only role of legislative counsel in the preparation of a draft text is to ensure that they have chosen headings that will provide meaningful information to the reader.

2. If possible, help readers with related text

Sometimes it is necessary to refer to concepts or requirements that are located elsewhere, either in your text or in another one. If you need to use a cross-reference, make it an informative one, so that the reader has enough information to understand the nature of the referenced text at least in a general way. For example, rather than writing

... must comply with the requirements of section 14 ...

you could write

... must provide the contact information required by section 14 ...

Do not repeat all of the other provision (or what would be the point of the cross-reference?), but provide the reader with a sense of what the referenced provision is about. The reader now knows enough to have a general understanding of the legislative rule. If they want the details, they can go to the cross-referenced provision.

F. Give readers the key structural elements of each legislative sentence early in the sentence

Readers find it easier to understand a sentence if they have its key elements early on. Compare the following two versions of a sentence:

15.1 If an inspector believes on reasonable grounds that

  1. an escape of dangerous goods has occurred or is occurring from a container, packaging or means of transport used in their handling or transport;
  2. an emission of ionizing radiation exceeding levels or quantities permitted under the Atomic Energy Control Act has occurred or is occurring from any such container, packaging or means of transport;
  3. there is a serious, imminent danger of such an escape or emission; or
  4. any provision of this Act or the regulations has been or is being contravened,

the inspector may take any measure referred to in subsection (2) that he or she considers necessary to prevent or reduce any serious, imminent danger to life, health, property or the environment.

15.1 (1) An inspector may take any measure referred to in subsection (2) that he or she considers necessary to prevent or reduce any serious, imminent danger to life, health, property or the environment if the inspector believes on reasonable grounds that

  1. an escape of dangerous goods has occurred or is occurring from a container, packaging or means of transport used in their handling or transport;
  2. an emission of ionizing radiation exceeding levels or quantities permitted under the Atomic Energy Control Act has occurred or is occurring from any such container, packaging or means of transport;
  3. there is a serious, imminent danger of such an escape or emission; or
  4. any provision of this Act or the regulations has been or is being contravened.

Restructure the sentences in order to give the reader the principal grammatical and substantive elements early on (key grammatical elements — subject and verb; key substantive elements — topic and what's happening).

G. Create a logical flow from sentence to sentence

You can help your reader understand your text by paying attention to the organization and flow of information. Two practices that encourage a meaningful flow of information are using backward-linking information and moving from old to new and significant information.

Backward-linking information can help your reader's comprehension by connecting ideas effectively. Consider the following example:

48. (1) A settlement agreed to by parties to a complaint must be referred to the Commission for approval or rejection.
(2) The Commission must certify its approval or rejection of the settlement and notify the parties.
(3) An approved settlement may be made an order of the Federal Court for the purpose of its enforcement on application by the Commission or a party to the settlement.

Each sentence begins by making a connection to what comes before. Then the sentence proceeds into new territory by delivering new information. Backward-linking information gives the connection and context before the reader is presented with the new, significant information.

When your text has a good logical flow, you will likely need fewer cross-references and avoid another obstacle to understanding.

H. Use paragraphing when numerous elements of a legislative sentence lend themselves to a list

Visual clues help a reader understand a list more easily. In ordinary writing, you might use bullets for the list elements. In legislative drafting, we mostly use lettered paragraphs in order to facilitate references to the relevant parts of a legislative text. This is called "paragraphing". The presentation of a list as a series of separate, equally indented paragraphs gives the reader a clear visual clue and paragraphed lists can often serve as a kind of checklist of legal requirements or qualifications.

I. Keep the language as simple as possible

1. Avoid Latin expressions

Latin expressions rarely assist the reader's comprehension. There are almost always good English equivalents of the Latin expressions that were formerly more common; continue to make the effort to find the appropriate equivalent.

2. Use simple expressions when possible; avoid couplets or triplets

Simple expressions often communicate everything you need. For instance, it is superfluous to provide that "The applicant has submitted false or misleading information or false or falsified documents in or with the application." It is sufficient to say that "The applicant has submitted false or misleading information in or with the application". Some suggestions to consider:

INSTEAD OF

CONSIDER

accomplish, perform

do

aforementioned, aforesaid mentioned

above

assist

help

by reason of

because

commence

begin

disseminate

send out, distribute

endeavour, attempt

try

exceeds

is more than

expiration

end, expiry

fix (a date)

set

furnish

give

hereby

by this

herein

in this regulation

in the event that, in the case of

If

on the part of

by

optimum

best, greatest, most

notwithstanding

despite, even though

preceding, prior to

before

provisions of these Regulations

these Regulations

pursuant to

under or in accordance with (depending on the context)

said (“the said Regulations”)

the, that, these

strategize

plan

submit

send, give

subsequent

later, following

such (“in such case”)

that or the

therefor

for it

therein

in that place/document

thereof

of it

until such time as

until

utilize

use

where

If

whereby

by which

with a view to

To

with regard to/with respect to

about

without restricting the generality of the foregoing

but not limited to

3. Use definitions only when they are helpful

When a term is defined, it implies that readers cannot simply rely on their understanding of the words used in the text; they must refer to the definition to discover some assigned meaning (and likely will need to return to that definition repeatedly to keep the assigned meaning in mind). Because of this, it is important to use definitions only when their benefit to the reader justifies the extra effort.

What benefit does a reader gain from a definition? — Essentially a shorter, and therefore less dense text (multiplied by the number of times the defined expression is used). You will need to assess whether a shorter text and resulting ease of understanding for the reader is worth the extra work of referring to and keeping in mind the substance of the definition. Only then is the definition required.

4. Ensure that the defined expression corresponds with the assigned meaning

It is important for readability that the expression you choose as the defined term corresponds as much as possible with the meaning assigned to it in the text. Essentially, the defined term serves as a short form in the legislative text for the entire content of the definition. Does it achieve this? For example, if you need to refer often to an employee who regularly works 30 hours per week or more, consider using a definition rather than repeating "an employee whose regular work-week is at least 30 hours". "Full-time employee" might be an appropriate defined term to serve as the short form for that meaning. By contrast, using "employee" alone could mislead the reader, especially if there is also a definition of "part-time employee" meaning one ordinarily working less than 30 hours per week.

For a defined term to be appropriate, it should not mislead the reader. Usually this means that either its ordinary meaning will cover a large part of the assigned meaning or that the context will indicate it.

5. A note on vocabulary and readership

If the legislative text will apply to a relatively small number of persons engaged in a highly specialized activity, you may need to use specialized vocabulary in order for the text to be precise and concise. While the general public may not know the specialized vocabulary you use, their interests are second to those of the persons to whom the law is to apply and by whom it will be administered. On the other hand, if your legislative text will apply to the general public, it is best to use widely understood language.

III. Conclusion

Legislative texts must not just set out the law, but communicate it. This document is intended to be a practical tool so that legislative texts are well communicated to readers. The efforts of all of those involved with the elaboration of such texts toward that end are an essential part of their service to the public.


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