Legistics
Sentence Structure: Complexity and Organization

Legistics est un recueil d’articles portant exclusivement sur les questions de rédaction en anglais des textes législatifs. La nature même de l’ouvrage fait en sorte qu’il n’est offert qu’en anglais.

Background

Sentence structure, or syntax, is about the relationships among the words that form a sentence. It is one of the most important factors affecting the readability of a text. In fact, one readability study has shown that improvements to sentence structure generally have a greater impact on readability than the elimination of obscure terminology (See Masson and Waldron, "Comprehension of Legal Contracts" by Non-experts: Effectiveness of Plain Language Redrafting (1994), 8 Applied Cognitive Psychology 67 at 78). This is not surprising given the degree to which meaning depends on context. If it is easy to understand how the words of a sentence relate to each other, readers are often able to figure out the meaning of particular words that are unfamiliar.

Sentence structure has two aspects: complexity (including length) and organization (word order). This note examines them separately, but these aspects are related to each other because word order is the principal device available in English to express the interrelationship of ideas in a sentence. The more ideas a sentence contains (complexity), the greater the temptation to depart from the way sentences are normally organized in order to make it clear how the ideas relate to each other.

Complexity

Studies of how people read show that the reading process involves two types of memory: short-term and long-term. Short-term memory is used to store the ideas contained in a single sentence. Once the sentence has been read, the reader's mind extracts its meaning and stores the meaning in long-term memory. Frederick Bowers, a linguist, describes this process as follows:

The process of reading is generally seen as one in which the reader first scans a sentence, organizing it into its semantic-syntactic grouping, and next reduces the organization into a semantic whole for storage in the memory as the succeeding sentence is scanned. (Linguistic Aspects of Legislative Expression (1989) at 338)

The difficulty posed by a complex sentence is that it strains the limits of short-term memory and often requires a reader to reread the sentence several times in order to understand it. Readers need breaks in the progression of ideas so that they can consolidate what they have read and then move on. In fact, the process of rereading is one of breaking the sentence into more manageable units from which meaning can be more readily extracted. The need for breaks also helps explain why more white-space on a page makes it a more inviting text for readers.

One way of overcoming the readability problems of complex sentences is simply to make them shorter. One of the most eminent people to suggest this was Driedger, who wrote:

My main criticism of common law legislation is that sentences are too long. This is a characteristic of English writing generally and not just of legislation. It seems to be thought to be a great intellectual achievement to write one sentence consisting of three or more main clauses, each modified by as many subordinate clauses as can be worked in grammatically. Much of our common law legislation would be better if sentences were shorter and there were more sections and subsections. (A Manual of Instructions for Legislative and Legal Writing, vol 6 at 556-557)

However, it is a mistake to assume that legislation can or should always be drafted in short sentences. There are often good reasons for long sentences and better ways to make them more easily understood. Long legislative sentences may avoid repetition or make clear the logical links between ideas. Just after the passage quoted above, Driedger quoted Sir John Fiennes, a former First Parliamentary Counsel of the United Kingdom:

Shorter sentences are easier in themselves, and it would probably help overall to have them shorter, but of course you are then faced with having to find the relationship between that sentence and another sentence two sentences away, which, if you have it all in one sentence, is really done for you by the draftsman.

Fiennes's point underscores the price that must sometimes be paid for dividing ideas into a series of sentences: the division may obscure the relationship of some of the ideas unless cohesive devices are included to knit them back together. The division may also be accentuated by formatting devices, such as numbering each sentence as a separate section.

Another price for shorter sentences is that they may result in the repetition of ideas that could otherwise be expressed elliptically in a single sentence. Consider the following example:

21. The Commission, with the approval of the Governor in Council, may make regulations

  • (a) prescribing products, substances and organisms to be included in the classes listed in the schedule;
  • (b) establishing classes, divisions, subdivisions and groups of dangerous goods;
  • (c) specifying, for each prescribed product, substance and organism, the class listed in the schedule and the division, subdivision or group into which it falls;

In this example, the lengthy sentence avoids repetition of the opening words. It also makes it easier for the reader to see that the ideas presented in the paragraphs are linked to each other. The problems of complexity are overcome through paragraphing (for more information on paragraphing, see Part 3 - Paragraphing).

Complexity may also be overcome by introducing definitions of words that express ideas that recur throughout the text. Consider the following example:

"Minister" means the Minister of the Crown designated by the Governor in Council for the purposes of this Act.

This definition avoids the repetition of the details of the Minister's designation throughout the text and simplifies the sentences in which it occurs. For example, it would allow

3. The Minister of the Crown designated by the Governor in Council for the purposes of this Act may issue a licence.

to be drafted more simply as

3. The Minister may issue a licence.

The drafting techniques of paragraphing and defining produce much the same result as shortening sentences. They divide a sentence into logical units that can be easily transformed and stored in memory. This demonstrates that problems do not necessarily arise because a sentence is long. Rather, they result from undistinguished groups of ideas and the complexity of their interrelationship.

Although paragraphing can often be used to make complex sentences easier to read, it requires parallel grammatical units, which are not always found in a sentence. When paragraphing is not available, you should consider dividing a complex sentence into shorter sentences. Like paragraphing, it may not only improve readability, it may also help uncover ambiguities lurking within complex sentences.

Cohesion of ideas is not necessarily disrupted by creating multiple sentences, particularly if the sentences are contained within the same section. Numbering sentences as subsections within the same section generally indicates that they are related by a common theme and should be read together as a group. In addition, multiple sentences can be used within a subsection (or a section without subsections) as long as they are closely related: see Part 2 - Sentences (More than one sentence in a section or subsection). Finally, ambiguity about the relationship of ideas can often be overcome by cross-references, although you should avoid including unnecessary cross-references: see Part 2 - Sentences (Cross-references).

Consider the following example:

19. Where a person who handles, offers for transport or transports dangerous goods destined for Canada, or for any place outside Canada through Canada, is not resident in Canada or has their chief place of business or head office in a place outside Canada, that person, if required by the regulations to do so, shall file with the Minister the name of a person who resides in Canada or has their chief place of business or head office in Canada and who is willing to act as an agent, together with proof of such willingness, and on such filing that person is deemed to be the person handling, offering for transport or transporting for the purposes of this Act.

This example has three parts:

  • a description of a group of persons who are required to file something with the Minister,
  • a description of what they are required to file,
  • a provision that filing has a particular legal effect.

These parts have been combined into one sentence to make clear the links between them. For example, the phrase "and on such filing …" is a succinct way of describing the relationship between filing and its legal effect. But is this precision worth the price of a longer sentence? Consider the following redraft:

19. (1) A person who handles, offers for transport or transports dangerous goods shall file with the Minister the name of a qualified agent in Canada if

  • (a) the person is not resident in Canada or has their chief place of business or head office in a place outside Canada;
  • (b) the goods are destined for Canada, or for any place outside Canada but passing through Canada; and
  • (c) the regulations require the person to file the name of an agent.

(2) A person is qualified to be an agent in Canada if

  • (a) the person resides in Canada or has a chief place of business or head office in Canada; and
  • (b) the person is willing to act as an agent and proof of their willingness is filed with the Minister.

(3) The person whose name is filed is deemed for the purposes of this Act to be the person who handles, offers for transport or transports the dangerous goods.

In this redraft, the links between the various elements of the original sentence are implicit in the arrangement of ideas and the use of the definite article "the" in subsection (3) (see also Cross-references at page 59).

Sentence Organization

Overview

The meaning of sentences depends on more than the meaning of the individual words they contain. It also depends on the relationships among the ideas conveyed by the words. The order in which these ideas are presented greatly affects the ease with which their relationships can be understood.

In English, the usual order of ideas is subject - verb - object. In legislation, these components are often modified by adjectives, adverbs, participles and subordinate clauses. This results in three features that have attracted criticism:

  • subjects are often separated from verbs and auxiliary verbs are often separated from main verbs,
  • subordinate clauses, particularly clauses expressing conditions ("if" and "where" clauses), are often placed before the subject and verb,
  • adverbial clauses are used when simpler adjectival clauses will do.

This section looks at each of these criticisms and suggests ways of responding to them.

Separation of Subject and Verb

The relationship between the subject and the verb in a sentence is critical. If they are close together, it is easy to see this relationship. In sentences with compound verbs, it is also easier to see this relationship when the auxiliary verb is next to the principal verb.

The main reason for separating subjects and verbs is to achieve greater precision. When a descriptive phrase is inserted between them, it is clear that it modifies the subject or the verb and not some other noun or verb found in the sentence. When the descriptive phrase is short, it seldom obscures the subject-verb relationship. For example:

13. The Minister may, in accordance with the regulations, designate inspectors as analysts for the purposes of this Act.

However, when a lengthy descriptive phrase is inserted, it is more difficult for the reader to connect the subject and verb. Consider the following example:

12. A certificate or report appearing to have been signed by an inspector or analyst stating that they have made an inspection or analysed or examined a product, a substance or an organism and stating the results of the inspection, analysis or examination is admissible in evidence in any prosecution for an offence under this Act without proof of the signature or official character of the person appearing to have signed the certificate or report and, in the absence of evidence to the contrary, is proof of the statements contained in the certificate or report.

In this provision, almost four lines of text separate the subject, "certificate or report", from the verb, "is admissible". This provision is also too complex. Both problems can be corrected by dividing it into two subsections and subdividing the first one into paragraphs:

12. (1) A certificate or report of an analyst or inspector is admissible in evidence in any prosecution for an offence under this Act if it

  • (a) appears to have been signed by the inspector or analyst;
  • (b) states that the inspector or analyst has made an inspection or analysed or examined a product, a substance or an organism; and
  • (c) states the results of the inspection, analysis or examination.

(2) The certificate or report is admissible without proof of the signature or official character of the person appearing to have signed the certificate or report. In the absence of evidence to the contrary, it is proof of the statements it contains.

The separation of subjects and verbs often occurs in "clause sandwiches". Part 3 - Paragraphing cautions against their use because of this.

Conditional Clauses

An adverbial clause that describes the circumstances in which a provision applies is sometimes called the "case". George Coode distinguished the case from other adverbial clauses (which he called "conditions") establishing things that must be done before a provision will apply. Coode used the distinction as a basis for determining whether an adverbial clause should go before the main clause or after it (this is discussed below).

However, the distinction has no grammatical basis and is often difficult to make. Driedger has doubted its utility (see Composition of Legislation, 2nd ed. at 7). Both types of clauses may be described as conditional clauses.

Conditional clauses are a fact of life for legislative counsel. Legislation is unlikely ever to be simplified to the point where they are not needed. However, two things can be done to make them easier to understand:

  • consolidate conditional clauses; and
  • be careful about placing them at the beginning of a sentence.

Consolidation

Provisions are often qualified by two or more sets of circumstances. Consider the following example:

15. (1) If an inspector believes on reasonable grounds that

  • (a) there is occurring or has occurred a discharge, an emission or an escape of dangerous goods or an emission of ionizing radiation exceeding levels or quantities prescribed pursuant to the Atomic Energy Control Act from any container, packaging or means of transport by means of which the goods are being handled or transported,
  • (b) there exists a serious and an imminent danger of such a discharge, an emission or an escape by reason of any condition, or
  • (c) any provision of this Act or the regulations is being or has been contravened,the inspector may take any measure referred to in subsection

(2) if he or she considers it necessary to prevent or reduce any serious and imminent danger to life, health, property or the environment.

In this example, two sets of circumstances govern the exercise of the inspector's power. One is expressed at the beginning of the provision, the other at the end. This complicates the reading process by requiring the reader to understand the first set of circumstances, then the main clause and finally another set of circumstances. Consider the following redraft:

15. (1) If an inspector

  • (a) believes on reasonable grounds that

    (i) there is occurring …, and

  • (b) considers it necessary to take any measure mentioned in subsection (2) to prevent or reduce any serious and imminent danger to life, health, property or the environment,
  • the inspector may take the measure.

This redraft consolidates the two conditions, but it results in a clause sandwich that poses another problem that is considered next.

The Place of the Case (and other Adverbial Clauses)

The question of where to place conditional clauses is more debatable. It can be answered by considering why the order of ideas in a sentence is important at all.

Grammarians have developed a concept that may be useful in examining this question. It is called "thematization". It points to the fact that a series of sentences generally has a principal idea or "theme" that connects them. Each sentence adds more information about the theme. In progressing from one sentence to the next, the reader looks first for the theme and then for the supplementary information. In general, the subject of a sentence is its theme. This is reflected in the usual order of ideas: subject - verb - object. Sentences are sometimes cast in the passive voice in order to keep the focus on the theme (more on this in a later drafting note).

When the theme is in the middle of a sentence or at the end, the reader must first read to find it and then reread to link it to the other parts of the sentence. This occurs, for example, when a lengthy exception is at the beginning of a provision or when other circumstances relating to its application appear at the beginning, as in the previous example. This order of ideas generally makes it more difficult to understand the sentence. This was noted more than 160 years ago in Bentham's Nomography (1839):

Whatever be the principal object which your sentence is designed to bring into view, bring forward as early as you conveniently can the word employed in the expression of it: if you can make the sentence begin with the same word, so much the better. (quoted in Bowers, Linguistic Aspects of Legislative Expression (1989) at 347-8)

This rule is at odds with a drafting convention that originated with George Coode in the middle of the 19th century. This convention relates to conditional clauses that describe the circumstances in which a provision operates (the "case"). Coode recommended that these clauses generally be placed at the beginning of the provision. The rationale is expressed in the following comments:

The case being placed first, the first few words of the sentence answer immediately to the inquirer whether his case is included in the provision or not; whether he need read on or should proceed to seek another law applicable to his circumstances in another clause. (Driedger, Composition of Legislation, 2nd ed. (1976) at 344)

This recommendation found its way into the Legislative Drafting Conventions of the Uniform Law Conference of Canada, but it was criticized by Driedger and has been omitted from the most recent version of those Conventions. It also contradicts the findings of modern linguistic studies, which suggest that difficulty in comprehension increases when an adverbial clause is placed at the beginning of a sentence. (See A.C. Lovgren, "The Place of the Case in Legislative Sentences" [1986] Statute Law Rev. 23 at 27, citing Dennis Kurzon, "Clarity and Word Order in Legislation" (1985), 5 Oxford J. Leg. Studies 269 at 270).

Finally, the applicability of the rationale given by Coode is questionable. It assumes that people usually read legislation to find the provisions that deal with their particular circumstances and skip over those that do not. This may occur when legislation sets out a series of prohibitions or rules that apply in mutually exclusive circumstances. But readers often want to gain a general understanding of the law so that they may be equipped to deal with whatever situations come along. It all depends on what the reader's focus is. Are they trying to weed out the rules that do not apply to them, or are they trying to understand the legislation as a whole?

Most modern legislation sets out groups of interrelated rules that must be understood together, such as rules describing administrative processes, as opposed to prohibiting distinct forms of conduct. Readers can seldom ignore the principal clause. Rather, they are likely to need the information it conveys in order to construct the meaning of the rest of the provision. Until its meaning is understood, the conditional clause has no point. When this clause is short, for example "If an inspector finds a hazardous condition, …", there is seldom a problem. But when it is lengthy or includes multiple conditions, readers will usually have to reread it to grasp the meaning of the provision in which it is found. The following redraft of one of the examples above corrects this problem.

15. (1) An inspector may take any emergency measure referred to in subsection (2) if the inspector

  • (a) believes on reasonable grounds that

    (i) there is occurring …, and

  • (b) considers the measure necessary to prevent or reduce any serious and imminent danger to life, health, property or the environment

Adjectival Clauses instead of Adverbial Clauses

Another technique for simplifying the complexity of long sentences is to avoid adverbial clauses that have the same subject as the principal clause. This corresponds to the usage of "lorsque" in the French version, which is restricted to instances where the subjects are different.

As noted above, adverbial clauses at the beginning of sentences tend to be more difficult to understand. If the subject is the same as that of the principal clause, the adverbial clause can usually be transformed into an adjectival clause that modifies the subject. Consider the following example:

(3) If an inspector inspects or seizes a sample of any thing, the inspector shall, if the thing is sealed or closed up, provide the person in charge of it with a certificate in prescribed form as evidence of the inspection or seizure.

This can be redrafted as follows:

(3) An inspector who inspects or seizes a sample of any thing shall, if the thing is sealed or closed up, provide the person in charge of it with a certificate in prescribed form as evidence of the inspection or seizure.

The use of this technique simplifies the sentence structure and avoids repeating the subject. However, its use is limited to relatively short adverbial clauses. If the clause is longer, it should instead be shifted to the end of the provision, as suggested above in the discussion of the place of the case.

Conclusion

Legislative sentences can be improved by paying attention to their complexity and organization.

A complex series of ideas is often hard to understand. When they are presented in one sentence as a block of text, the difficulty becomes all the greater. Drafting techniques such as paragraphing or definitions can make a complex sentence easier to understand, but there are limits on their use. Another approach is to divide a complex sentence into a series of sentences. This allows the reader to digest the ideas in stages. However, it also requires the drafter to make sure that the sentences flow together so that the ideas are cohesive.

Sentence organization is equally critical to the reader's understanding. Readers need to know the principal parts of a sentence before they can understand the rest of its information. Reading difficulty is often increased by splitting subjects and verbs and by putting lengthy subordinate clauses at the beginning of a sentence. Legislative counsel can help readers considerably by avoiding these practices and by using simpler adjectival phrases instead of more complex subordinate clauses.

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