At both conferences we were recommended to look at the EU drafting guidelines: Joint practical guide of the European Parliament, the Council and the Commission for persons involved in the drafting of legislation within the Community institutions .
As Eleanor Sharpston, the UK Advocate General, said today with a smile, who could possibly object to the following advice?
1.1 The drafting of a legislative act must be:
clear, easy to understand and unambiguous;
simple, concise, containing no unnecessary elements;
precise, leaving no uncertainty in the mind of the reader.
1.4.1. The author should attempt to reduce the legislative intention to simple terms, in order to be able to express it simply. In so far as possible, everyday language should be used. Where necessary, clarity of expression should take precedence over felicity of style. For example, the use of synonyms and different expressions to convey the same idea should be avoided
6.The terminology used in a given act shall be consistent both internally and with acts already in force, especially in the same field.
Identical concepts shall be expressed in the same terms, as far as possible without departing from their meaning in ordinary, legal or technical language.
Some of the German lawyers I translate for might consider that last point. Why define terms when you aren’t going to stick to them?
In fact EU legislation is first drafted in English nowadays, often by non-lawyers whose native tongue is not English. The ‘translations’ into the other Community languages count as equal originals, even if the country is one, like Slovenia, which wasn’t a Member State at the date of the drafting.
There is a nice section on the problems of multilingual drafting, concluding with the following:
5.5. Finally, two essentially practical comments must be made as to the relationship between the original text and translations of it.
5.5.1. First, the author must ensure that translators can immediately identify the sources drawn on in the original text. If a passage in the original text has been taken from an existing text (Treaty, directive, regulation, etc.) that must be clear from the text or indicated separately, where necessary by appropriate electronic means (see Guideline 6). There is a risk that any hidden citations without a reference to the source will be translated freely in one or more languages, even though the author specifically intended to use the authentic wording of an existing provision.
5.5.2. Second, the author must realise that comments from translators and, more generally, all departments which carry out a linguistic check of the text can be extremely useful. Such checks provide an opportunity to identify any errors and ambiguities in the original text, even after a lengthy gestation period and even — perhaps especially — when the drafting has been the subject of much discussion between a number of people. The problems encountered may then be brought to the attention of the author. In many cases, the best solution will be to alter the original, rather than the translation.
According to Wikipedia, Eleanor Sharpston speaks a number of languages:
Advocate General Sharpston is also a member of the Irish Bar and the Gibraltar Bar. She has published books and articles on EU law. Having spent her childhood in Brazil and then her adolescence and half her practising life in continental Europe, she speaks a number of European languages. Her off-duty activities include: playing classical guitar and violin, rowing and squash (in both of which she got University “blues”), sailing square riggers, skiing and scuba diving.[
On Thursday, the first speaker was Richard Heaton, First Parliamentary Counsel. He told us he does not draft, but he did not tell us what he does do. However, the internet reveals more.
Richard Heaton had a nice diagram showing the dozens of links between a new or revised statute and the existing law. He said that the language used is the second most important element – what is most important is creating law that works and that fits in the system, and this in itself is extremely hard to do.
It was pointed out that specialized drafters are the norm in common-law countries but not in civil-law countries.
One of the speakers used the term ‘plain language freaks’, which was an elegant way to bypass that argument, which reminds me of people getting angry about ‘grammar mistakes’ on the internet.