"To reach a conclusion on this matter involved the court in wading through a monstrous legislative morass, staggering from stone to stone and ignoring the marsh gas exhaling from the forest of schedules lining the way on each side. I regarded it at one time, I must confess, as a slough of despond through which the court would never drag its feet, but I have, by leaping from tussock to tussock as best I might, eventually, pale and exhausted, reached the other side."
This was the heartfelt cry of an English judge 35 years ago, as quoted by the Law Reform Commission in its consultation paper, published yesterday, on the verbosity and lack of clarity of much Irish law. It has been echoed by many an Irish judge, dismayed by the "dismal opacity" - in Mr Justice Keane's phrase - of Irish legislation and its regulations.
One writer even suggested that "legalese" is a language so full of archaic, obsolete and foreign words and phrases that it is actually a separate dialect of English.
Scores of examples are given, many in areas where one would have expected the legislation, in that it affects ordinary, often lesser-educated people, to be more or less comprehensible to them.
The paper cites a 158-word sentence in the 1992 Social Welfare Act (see panel below) which "repeats a litany of benefits at least five times, and uses many words and phrases which add nothing to the meaning. By the time the reader has reached the end of the sentence, he or she would have to be forgiven for having forgotten the beginning".
It criticises the "maze of cross-references, conditions and substitutions" which go into a 15-paragraph, 387-word definition of sexual discrimination for the purposes of the 1998 Employment Equality Act. It notes that the meaning of the section is "not at all apparent on a first reading" - this reader could not make head or tail of it after five readings.
The commission criticises the overuse of anachronistic terms like "hereby", "thereof" and "aforesaid"; of excessively formal words like "furnish" instead of "give" and "commence" instead of "begin"; and of superfluous phrases like "as the case may be" and "that is to say".
It says that shorter sentences, familiar vocabulary and clearer grammatical structures should be used in legislation. The current use of complex language is a legacy of the common law tradition, which aims to cater for all possible eventualities to avoid misinterpretation, while maintaining precision, it adds. However, the result is often utter confusion.
Among its recommendations are that standard drafting practices should be adopted to improve clarity; courts should be permitted to consider the "object" and "purpose" of a law, as well as its precise wording; more headings should be used in legislation to help readability; and courts should be allowed to examine "external aids" like Oireachtas reports, international agreements and other relevant documents to help them interpret a law.
Here follows an example of legalese:
"Where one of a couple is entitled to disability benefit, unemployment benefit, injury benefit, disablement pension, old age (contributory) pension, old age pension, retirement pension or invalidity pension, and the other is entitled to unemployment assistance, the total of the amount payable to them by way of such benefit or pension, as the case may be, and such unemployment assistance (in this section referred to as "the relevant amount") shall not exceed the total amount of benefit or pension, as the case may be, or the total amount of unemployment assistance, whichever is the greater (in this subsection referred to as "the greater amount"), that would be payable if only one of the couple were in receipt of benefit, pension or unemployment assistance, as the case may be, and the benefit, pension or unemployment assistance included an increase in respect of the other as his adult dependant; and, if the relevant amount would but for this subsection exceed the greater amount, the amount of unemployment assistance payable to the spouse who is entitled to such unemployment assistance shall be reduced by the amount of the excess."