PART 5
DEVELOPING REGULATIONS
The Basic Steps and the Plain Language Approach

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4. PLAIN LANGUAGE DRAFTING

4.1 Introduction

The basic approach to writing documents in plain language is set out in Plain Language Clear and Simple prepared by the Human Resources Development, National Literacy Secretariat.

Another very helpful reference for writing and editing is The Canadian Style, which contains a chapter on plain language. Although these publications deal mainly with non-legal documents, they contain many principles for writing clearly that can also be applied when writing regulations. Traditionally, regulations have been written in legal, technical language that many readers find difficult to understand. "Plain language" writing focuses on the users (usually non-lawyers) of the regulations.

Writing regulations in plain language does not make them unenforceable in court. In fact, it's a good way to avoid ambiguities and interpretational problems. Also, court enforcement of regulations is only one way to achieve compliance. Research has shown that most people in a regulated group will voluntarily comply if they understand what is being asked of them. Relying on this concept, some regulators are shifting away from using the threat of prosecution towards trying to encourage voluntary compliance. Since a major cause of non-compliance is simply a failure to understand what to do and how to do it, writing regulations in plain language should improve compliance.

In addition to improving compliance, readily understandable regulations reduce costs by reducing:

• the need for secondary explanatory material, such as pamphlets and brochures;
• the number of inquiries from the people who use the regulation; and
• the need for interpretative deskbooks or training programs for those who enforce the regulation.

In short, a regulatory regime will work more efficiently if the starting point is a regulation that can be easily understood by the intended audience.

This section outlines various plain language techniques that you can use to make regulations easier to understand. It concludes with an example of traditional drafting, taken from the Explosives Regulations, and an example of how it can be redrafted in plain language. The techniques outlined in this section are optional. (See 4.3 below for the factors that may influence your choice of techniques.)

For more information on using plain language when drafting regulations, refer to Janice C. Redish's How to Write Regulations (And Other Legal Documents) in Clear English, Document Design Center, American Institutes for Research, Washington D.C., 1981, and Susan Krongold's article "Writing Laws: Making Them Easier to Understand," Ottawa Law Review, Vol. 12, No. 2, 1992. You can also consult drafters in the Regulations Section of the Department of Justice as well as that Section's Federal Regulations Manual and the Legislative Drafting Conventions of the Legislative Services Branch of the Department of Justice.

4.2 Key Rules for Plain Language Regulations

The key rules in writing regulations in plain language are:

• 1^st Know who your readers are.
• 2^nd Know what you want to communicate.
• 3^rd Organize the regulation in a way that your readers will understand.
• 4^th Use language that your readers can understand.
• 5^th Use formatting features to help your readers.
• 6^th Test to see if you have achieved your purpose.

1st Know Who your Readers Are

To be able to communicate well, you must know whom you are communicating with and what information they need. Your audience may be one or several groups of people who are subject to the regulations, or it may be the general public. (This is discussed in 2.1 (A) above at p. 10.) To understand the needs of the reader, you will have to consult various sources, starting with the policy and operational officials in the sponsoring department. Consider including drafters from the Regulations Section in these and other consultations. This will allow them to see the underlying policy questions more directly and give them a better understanding of the background of the regulation. However, it is not the drafters' role to check on whether the consultations have been sufficient.

You should also consult the intended readers. This serves two main purposes. It educates the drafters about the audience and the issues, resulting in more informed drafting. It also involves the regulated group in making the regulations, which in turn should strengthen that group's commitment to them and improve the level of compliance.

The nature of the intended audience affects the style and terminology used in the regulations. For this reason, identifying the readers and understanding their needs is an indispensable first step.

2nd Know What You Want to Communicate

Determine the policy before you start to draft the regulations. Include only what your audience needs. Determine what sorts of things have to be in the regulations themselves, and what can be left to administrative documents.

For example, consider whether you really need to put all the details of the regulatory scheme in a law. Any administrative details that do not have to be legally enforced can be dealt within departmental policy documents.

Remember, the success of the regulatory scheme depends on having a clear idea of what you want to communicate. It is important to take the time to work through both the principles underlying the regulations and the practical effects of applying them. Ask yourself, "Who is responsible for doing what, and how and when?" Often, provisions that are generally worded and that lack clarity or specificity are a sign that a difficult issue has not been confronted. In such cases, using a vaguely worded provision just sidesteps the problem, which will have to be addressed eventually.

3rd Organize the Regulation in a Way that your Readers can Understand

Most people only read regulations because they need information or they need the answer to a specific question. Regulations should be organized and written with this in mind. They should make it easy for the reader to find information on any particular point that they cover. So, place yourself in the reader's shoes and organize the text according to what the reader needs.

If there are several different groups of readers who have different perspectives, you may have to choose which one to use. For example, if there are different prohibitions, those who are required to comply with the regulations will likely prefer to have the prohibitions stated throughout the regulations with the other provisions that relate to them. This would allow them to see the prohibitions integrated with the other provisions. However, enforcement officials may prefer to have all the prohibitions grouped together in one place. This would make it easier for them to find the provisions that are most important to their enforcement functions.

In some cases, it may be possible to avoid choosing one perspective over another. If you are writing different rules for several different groups of readers, you could organize the regulation into separate sections for each group or write separate regulations for each group. Thus, each group would have to go through only those parts of the regulations that apply to them.

A table of contents is an effective tool to use when deciding how to organize regulations. It provides an overview and can help the drafter identify elements that have something in common and should be arranged together.

Generally speaking, it is best to progress from the general to the specific. As well, if the regulations include requirements relating to a procedure, such as making an application, you should set out all the steps in chronological order.

Definitions are usually put at the beginning of a regulation in alphabetical order within a single section or subsection. The English version follows the order of the English words while the French version follows the order of the French words. This convention makes it easy for readers to find definitions because they are all in one place. However, if a defined term is used only in single section, you may place the definition in that section.

4th Use Language that your Readers can Understand

Once you know who your readers are, choose the most effective way of communicating with them. Effective communication depends on a suitable level of language and suitable complexity of writing style. For example, the readers of a regulation that deals with a technical area might be expected to have a comparable level of expertise and be able to understand regulations written in technical language. Obviously, this approach would not succeed with other audiences. If possible, you should adjust the terminology in any given set of regulations to ensure that its particular readers will understand.

There are limits on the use of this approach. One is that you cannot replace technical terms that are used in the authorizing statute with other terms in the regulations. This rule avoids the confusion caused by having two different terms that mean the same thing, since the courts tend to assume that different terms are intended to have different meanings. It also ensures that, by using the same terms as the authorizing statute, the resulting regulation does not exceed its authority.

Some specific features that you can consider using to create a plain language regulation are described below. Additional guidance is included in the Federal Regulations Manual, which is available through the Regulations Section of the Department of Justice.

(A) Use Words that your Readers can Understand

One of the most important ways to improve clarity and accessibility is to use words that readers will understand. For some audiences, the largest obstacle to comprehension is language that is archaic or unnecessarily legalistic or complex. Although you must use the technical or legal terms used to express concepts in the authorizing statute, you are usually free to choose terms for other concepts. In many cases, a more familiar word or phrase can safely be substituted for an archaic or unnecessarily legalistic or complex one. Some examples are set out below:

 

This list is based, in part, on a list contained in Plain Language Clear and Simple. Refer to that document for more examples of simpler terms that you may be able to substitute, depending on the terminology of the relevant Act.

(B) Be Careful Using Definitions

Defined terms are more difficult for readers to understand because they cannot be accepted at face value. They oblige the reader to return to definitions at the beginning of the regulation for their meaning. In addition, the reader has to remember which words are defined because their usual meanings no longer apply. This can be a simple task if the regulations are short. However, in regulations of 300 sections, it is quite probable that the reader may forget that certain words are defined, especially if there are many definitions. For this reason, you should only define terms if their ordinary meaning is unclear or overly broad, or if some technical meaning is intended.

Despite these drawbacks, defined terms can have some advantages. They can be used to avoid the repetition of information each time a complex idea is mentioned. The details of the idea can be put into a definition so that the defined term will express them each time it is used. This may also simplify the drafting of the provisions that use the term, rather than loading them down with details. For example, "licence" may be defined to avoid the repetition of "a licence to fish on a recreational basis issued under section 3". When this sort of definition is introduced, be careful to choose a defined term that is appropriate to convey the contents of its definition.

When new regulations are being made, or an entire definition (sub)section is replaced, the opening words of the new definition (sub)section are "The definitions in this (sub)section apply in these Regulations". Each of the definitions that follows is made up of one or more complete sentences that end with a period. For example:

2. The definitions in this section apply in these Regulations.

• "contravention" means an offence that is created by an enactment and is designated as a contravention by regulation of the Governor in Council.

• "heritage language" means a language that contributes to the linguistic heritage of Canada. It does not include an official language.

• "licence" means, in respect of an undertaking, a licence issued under section 10. It does not include a certificate or a licence issued under subsection 25 (3).

• "program" means sounds or visual images, or a combination of sounds and visual images, that are intended to inform, enlighten or entertain. It does not include G33 visual images, whether or not combined with sounds, that consist predominantly of alphanumeric text.

(C) Use Gender-neutral Language

Avoid gender-specific references unless the reference is to persons of only one gender. Almost all regulations apply to both women and men, and they should be drafted in a way that reflects this. You should be particularly aware of gender-specific references in two types of situations.

The first involves terms that refer to officeholders or occupations, such as "chairman" and "fireman". Gender-neutral equivalents such as "chairperson" and "firefighter" should be used.

The second type of situation involves pronouns and possessives (he/she, him/her, his/her). A number of techniques are available here, including using a double term ("she or he", "him or her", "her or his") or using "they", "them" and "their" in the singular sense. Another option is to repeat the noun instead of using the pronoun or possessive.

(D) Use Verb Forms that are Clear and Easy to Understand

Alternatives to "Shall"

You can use "must" instead of "shall" in commands. Not only is "must" more commonly used, it is also unambiguous and avoids the possibility of "shall" being interpreted in a permissive sense. "Must" also works for prohibitions, as in "a form must not include…" In the context of limiting a power, you can say "A person may not …" or "No person may …". Always be consistent within the regulations, whichever word you choose, and make sure when amending the regulations that the consistency carries over into unamended parts.

Be Careful about Using the Passive Voice

Sometimes regulations require or permit things to be done without making it clear who is to do them. The regulations concentrate on what is to be done instead of the person who may or must do it. This problem most often results from using the passive voice. For example,

• Service of a warrant or other document may be made on a person by showing the person a certified copy of the document.

• Studies and reports of the Board made under this Part may be made public with the approval of the Minister.

Contrast this fuzzy, bureaucratic effect with the clarity of these sentences when redrafted using the active voice:

• The applicant may serve a warrant or other document on a person by showing the person a certified copy of the document.

• The Board may make public any of its studies and reports made under this Part with the approval of the Minister.

Passive sentences may also be legally unenforceable. Consider the following example:

A dog must be kept on a leash when it is in the park.

This rule does not indicate who is responsible for keeping the dog on a leash. It could be the dog's owner or a person who is out walking the dog or a park official. If it is not clear who is responsible, the rule cannot be enforced.

Although the passive voice often creates problems, there are some situations where it is preferable. In a series of regulations, the first one may make it clear who is responsible for following the regulations. The subsequent regulations may be better drafted using the passive voice.

For example,

1. A person who brings a dog into a park must control the dog in accordance with these rules.

2. The dog must be restrained by a leash that is no longer that 5 m.

3. The dog must not be allowed to bark excessively.

4. Faeces deposited by the dog must be collected in a plastic bag and placed in a garbage can without delay.

In this example, the passive voice is preferable to repeating the phrase "a person who brings a dog into a park". Once it is clear who is responsible for compliance with the regulations, the focus should be on the dog.

Avoid turning verbs into nouns

Use a more concrete style of writing by using active verbs instead of nouns that are made out of verbs. For example, you should avoid the abstract style of "noncompliance with the regulations is subject to a penalty of …", since it often makes it harder to identify who is subject to the sentence. It is easier to understand a more concrete statement, such as "a person who does not comply with the regulations is liable to a penalty of …".

Verbs are often turned into nouns in situations where a simpler verb form of the same word will work. For example, "after consultation with" can be rendered more simply as "after consulting" and "after the issuance of the licence" is more straightforward when expressed as "after the licence is issued".

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