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My Lords, on
“Many believe that this practice”— the practice of using male pronouns—
“tends to reinforce historic gender stereotypes”.
He went on to say that the Government took the view,
“that it would be right, where practicable, to avoid this practice in future and, accordingly, Parliamentary Counsel has been asked to adopt gender-neutral drafting. From the beginning of next Session, Government Bills will take a form which achieves gender-neutral drafting so far as it is practicable, at no more than a reasonable cost to brevity or intelligibility”.—[ Official Report , Commons, 8/3/07; col. 146WS.]
However, as the Statement expressly recognised, the drafting practice of using an apparently gender-specific pronoun to apply both to men and to women had received the imprimatur of Parliament by the enactment of Section 6 of the Interpretation Act 1978. Section 6 of the 1978 Act provides inter alia that:
“In any Act, unless the contrary intention appears … words importing the masculine gender include the feminine … words importing the feminine gender include the masculine … words in the singular include the plural and words in the plural include the singular”.
Section 23(1) of the 1978 Act made it clear that Section 6 was applicable not only to Bills and Acts of Parliament but also to statutory instruments.
It follows from Section 6 that the use in both primary and secondary legislation of apparently gender-specific pronouns is a use of pronouns that are in law, subject of course to the context, gender-neutral. They are no longer in their effect gender-specific. None the less, the obvious purpose of the
There are, however, two objections to the drafting instructions given to government officials pursuant to the
It may be that the drafting habit of using in legislation pronouns importing the masculine gender and relying on Section 6 of the Act to enable the pronouns to apply also to persons of the feminine gender as well offends some people’s notions of gender equality. However, it was never more than a habit. That habit could, of course, be adjusted and remedied. If the officials who draft legislative instruments were to be instructed to use from time to time the feminine pronouns—she, her, hers—instead of the masculine pronouns, relying therefore on Section 6 of the 1978 Act to include the masculine, context permitting, why not let Section 6 have the gender-neutralising effect that Parliament intended in enacting the section in question?
In principle it is inappropriate and, indeed, objectionable for government Ministers to instruct their officials to adopt a drafting practice that simply ignores the provision that Parliament, through legislation, has made for dealing with the perceived problem of gender stereotyping.
My second objection, however, is bred from my perusal of statutory instruments drafted, I suppose, in pursuance of the instructions given pursuant to the March 2007 statement. I have had the privilege of being for some years a Member of the House’s Secondary Legislation Scrutiny Committee and I hope the House will bear with me if I refer it to the language used in some of the statutory instruments that have recently come before that committee.
In Statutory Instrument 2013 No. 2828, Regulation 2(2)(b) refers to a child who,
“by virtue of his or her disability”,
cannot be expected to share a bedroom. Regulation 3(2)(b) repeats the reference to “his or her disability”. The child in question might of course be a child of either sex, so the use of “his or her” is correct. However, the Explanatory Notes to the statutory instrument explaining that regulation refer instead to “their disability”, but then use “is”, a singular verb form, as the following verb.
Regulation 4(3) of the same statutory instrument adds a new Regulation 12 to the Universal Credit Regulations 2013. The new Regulation 12(1) states that “A renter”—that is, a singular noun—
“is entitled to an additional bedroom if they”— a plural pronoun—“satisfy”—a plural verb form—“various conditions”. So there is the use of a plural pronoun and verb form, “they satisfy”, after a singular noun, “A renter”. This language reads very oddly, particularly as it is then followed by the use of “are”, a plural verb form.
Secondly, the Explanatory Memorandum which accompanied Statutory Instrument 2013 No. 2827 and Statutory Instrument 2013 No. 2828 uses in several paragraphs the plural pronoun “their” followed either by the plural verb “are”, which in the context of a reference to a single person makes no sense, sometimes followed by the singular verb “is” which, combined with the plural pronoun “their”, also makes no sense.
Paragraph 7.4 has a sentence beginning,
“The claimant or their partner is a person”,
and so on. It then refers to,
“an adult who is not the claimant’s partner if they are part of the claimant’s Extended Benefit Unit”.
Paragraph 7.5, says that “a severely disabled child”—that is a single person—
“who would otherwise be expected to share is not able to do so due to their disability”.
Paragraph 7.6 refers to,
“any child who meets the qualifying criteria and is occupying the dwelling as their primary residence”.
It goes on further in the same paragraph: “a child who requires”—singular verb form—“their”—plural pronoun—“own room”, and so on. It may also be noted that paragraph 7.20 refers to,
“a child who requires their own bedroom”,
while paragraph 7.23, when referring to a “child”, says,
“They are not reasonably able to share … because of their disability”.
That language, I respectfully suggest, is somewhat absurd.
Thirdly, the so-called Keeling schedule to SI 2013/2827 and 2013/2828 has a number of oddities. In the references to SI 2006/213, SI 2006/214 and SI 2013/376, the masculine pronouns “he”, “his” and “him” are used, leaving Section 6 of the 1978 Act to extend the references to women. But Schedule 2 to the proposed amendments to SI 2006/213 contains in paragraph 2(4) the following gem:
“where a son, daughter, step-son or step-daughter of the claimant who is the claimant’s non-dependant ceases”— singular verb form—
“to occupy the dwelling as their”— plural pronoun—“home because they become”—plural pronoun and verb form—
“a member of the armed forces away on operations or subsequently resumes”— singular verb form—
“occupying the dwelling as their home”— plural pronoun—
“on ceasing to be a member of the armed forces away on operations”.
What may be noted in particular is the use of “they” and “their”, plural pronouns, although the reference is to a single person, and the contrast between “become”, a plural verb form, and “resumes”, a singular verb form, all in the same sentence.
The next oddity is to be found in amendments made to the housing benefit regulations which provide, in paragraph 13D(2)(12) a definition of “occupiers” that includes in sub-paragraph (b) the following,
“any member of the armed forces who, (i) is the son … of the claimant,(ii) was the claimant’s non-dependant before they became a member of the armed forces away on operations, and (iii) intends to resume occupying the dwelling as their house when they cease to be a member of the armed forces away on operations”.
Noble Lords should note the incongruity of including “they become”, a plural verb form, and “intends to resume”, a singular verb form, in the same sentence.
Another example is the Policing Protocol Order 2011, SI 2011/2744. This statutory instrument refers in a number of places to the “Police and Crime Commissioner”, an individual who may be male or female, and to the “Chief Constable”, who also may be male or female. Paragraph 13 of this statutory instrument states:
“Each PCC and their respective Chief Constable are established in law as corporations sole”.
The statutory instrument refers, in several regulations, to the “Chief Constable”, and Regulation 23(f) refers to the “Chief Constable”,
“planning their policy functions in respect of their force’s … policing responsibilities”.
If the noble and learned Lord would give way for a moment, this is a time-limited debate and the actual time limit is 10 minutes. As fascinating as his comments are, I think that he has reached the limit. Perhaps he will look to conclude his remarks.
To perorate, if you will. The statutory instrument continues with infelicities to the same extent as those that I have already mentioned.
The clarity of the language of the protocol is certainly not assisted by the use of grammatically inappropriate plural pronouns coupled with references to a single person. In my opinion, it is a matter of great regret that the instructions given pursuant to the
The drafting of which I have given examples—and there are more—is not only unacceptable and unnecessary but is, I suggest, an insult to the lovely English language, which to my regret is the only language that I am able to speak or understand. I therefore ask the Government to take steps to put an end to the appalling drafting of which I have given a few examples and to allow Section 6 to have the effect, and to achieve the gender-neutral interpretation of statutory language, that Parliament always intended it to have.
My Lords, the noble and learned Lord, Lord Scott of Foscote, has certainly raised an extremely interesting question. I believe that Parliament, in the Interpretation Act, set a rule that is perfectly gender neutral in respect of the use of either male or female pronouns.
It is regrettable that this practice has taken place because statutes and statutory instruments have now become a very fundamental part of our law. I see no reason to suppose that that is likely to reduce to any extent in the future—rather, the opposite seems to be the case. That means that ordinary people, not just the courts and lawyers, have to try to understand these instruments. I would have thought that the cardinal principle is that the instrument should be reasonably clear and written in language that ordinary people would normally use in common speech. I am not sure how many of our statutes really come up to that degree of clarity. Indeed, if one approaches one of the current Bills without any knowledge of its antecedents, the task of trying to find out exactly what it means is quite formidable. To make it more difficult by using rather contrived constructions seems to be contrary to the best use of the statute book.
I notice that the briefing pack kindly prepared for us by the Library includes drafting guidance for the Office of the Parliamentary Counsel, which says:
“Some Acts have used ‘they’ or ‘them’ as a third person singular pronoun”.
It goes on:
“This use of the plural pronoun is thought by some to be grammatically incorrect, though it reflects common usage and is well-precedented in respectable literature over several centuries”.
I must say that I was slightly surprised when I read that, but it seems to be fairly authoritative. On the other hand, it does seem that it is not very common usage. Whether it is authoritative and approved by usage may be a matter of interest, but the common situation is that the grammatically correct interpretation would be as the noble and learned Lord, Lord Scott of Foscote, has described it. I should have thought that we want to give as many good examples of good grammar to our fellow citizens and to ourselves as we possibly can.
I would be very interested to hear from the Minister in due course how this particular practice, which has been decreed by the Leaders of both Houses in directions to parliamentary counsel, contributes to a greater degree of lucidity in our statutes and statutory instruments than would be the case without it.
My Lords, in this interesting debate, the noble and learned Lord, Lord Scott, has raised and memorably illustrated a problem which has two sources, one in grammar and the other in political history.
First, in grammar, like many other languages, English lacks an epicene third person pronoun that can have anaphoric reference to an ungendered antecedent—that is putting it in plain language. For literally hundreds of years, we have vacillated between solutions that partly fit the bill, especially “he”, which is third person and singular but not, of course, epicene, and “they”, which is third person and epicene but not, of course, singular. It is the danger of this “they” creeping into legislation that concerns the noble and learned Lord, Lord Scott, among many others.
I will illustrate this with an example from the policing Bill that is currently going through this House. In one of the Marshalled Lists, Amendment 56LG reads as follows:
“The owner of a dog commits an offence if they … are not able to control the dog in a public place”.
Of course, far more of the amendments employ the traditionally approved solution, using “he”, as in Amendment 58, which says:
“A person questioned … may not be detained … unless … he is a person falling within section 40(1)(b).”
In fact, gender neutrality is only one part of the grammatical problem. We lack also the means of expressing number neutrality. After all, when we speak of “anybody” or “everybody”, we are not concerned with specifically singular entities but, well, with everybody. This is another factor tempting us in the direction of “they”. It is not surprising that many of us avoid the singular/plural mismatch by opting for the plural in both antecedent and anaphora, as in, for example, “Persons who live in glass houses are asking for trouble if they throw stones”.
The second problem issue is political history. When the whole world was solidly male dominated, as large parts of it still are, few people were concerned about the casual assumptions implicit in the generic “he” and kindred expressions such as “mankind” or the Musée de l’Homme in Paris. After all, the word “woman” proclaims that she is merely a subcategory of man, as surely derived from him linguistically as Genesis tells us that Eve was derived from Adam biologically. However, in the past century, when women got jobs outside the home, and then better and better jobs, they started exerting themselves and they increasingly convinced most of us that their grievances included linguistic ones. With striking rapidity, we got used to hearing sentences such as, “Our doctor and her husband were at the meeting”, and we abandoned “policemen” and “firemen” for “police officers” and “firefighters”.
Of course, languages frequently embody glimpses of the past and past beliefs— even the noble Lord, Lord Rees of Ludlow, might speak of “tomorrow’s sunrise”—so, too, with sexist expressions, including our very own salutation, “My Lords”. If the English, brazen “Every man for himself” sounds particularly blatant, we should not forget that in “Chacun pour soi” “chacun” is not “chacune” and that in “Jeder für sich”, “jeder” is spelled with the masculine “r” and not the feminine “e”.
In my view, it was perfectly reasonable for Jack Straw in 2007 to call for an end to any such male stereotyping in our use of English, specifically rejecting the Interpretation Act 1978 and its reiteration of the convention that masculine pronouns are deemed to include feminine reference. If it ever worked, that convention no longer does, and there have been convincing psycholinguistic experiments showing that sentences such as “Anyone parking his car here will be prosecuted” predominantly call up images of a man doing the illicit parking.
To return to the policing Bill, we find that most amendments are thoroughly sensitive in this respect, with anaphoric reference employing “he or she” or repetition—“a person … that person”. But among the minority using the traditional “he”, there are striking cases, especially in Amendments 93 to 95, where the singular masculine pronoun is used no fewer than 18 times. In all of them, the antecedent of “he” is surely a tell-tale phrase: “the judge”. Since we do indeed have a judiciary that is largely manned by men, it is hard to believe that the use of “he” in these amendments really means “he or she” rather than endorsing one particular male stereotype as a fact of life.
At least the amendments show reassuringly little intrusion of the controversial “anyone … they” formulation. Of course, we hear it daily in this House and read it daily in the press, but it has no place in the language of statute, where its comfortably colloquial imprecision is seriously unwelcome.
My Lords, I want to place on record my thanks to the noble and learned Lord, Lord Scott of Foscote, for putting down this Question for debate today. Like other noble Lords who have spoken, I am looking forward to the response of the noble Lord, Lord Gardiner of Kimble.
As the noble and learned Lord, Lord Scott of Foscote, told the House, the drafting of primary legislation has for many years relied on Section 6 of the Interpretation Act 1978, under which words referring to the masculine gender include the feminine. Section 23(1) of the 1978 Act made it clear that Section 6 was applicable not only to Bills and Acts but to statutory instruments.
That changed on the
Along with the noble and learned Lord, Lord Scott of Foscote, English is the only language that I understand and speak, which is much to my regret as we are living in a global world where communication is key. Although I fear that I may not be as eloquent in my delivery as many noble Lords in this House, my accent is a mix of south London with Irish influences and a tinge of the east Midlands.
In preparation for this debate, I asked myself: what is the English language? As noble Lords will be aware, English is a Germanic language and is one of the most widely used languages in the world. It is spoken as the first language by majority populations in the United Kingdom, the United States of America, Canada, Australia, New Zealand, Ireland and a number of Caribbean nations. It is often widely chosen to be learnt as a second language, and is one of the official languages of the European Union and the United Nations. In terms of numbers of people speaking English as a first language, it comes third in the world behind Mandarin Chinese and Spanish. However, when combining native and non-native speakers, it is definitely the second most commonly spoken language in the world, if not the most commonly spoken. It is the required language of communication in seafaring, aviation and many other fields.
However, the English spoken by the early Germanic settlers from what is today the Netherlands, north-west Germany and Denmark is different and has evolved over the years into the language that we have today. Our language has developed with influences from Old Norse. A number of English words drew their construction from their roots in Latin, as Latin was the lingua franca of the Christian church and European intellectual life.
The Norman conquest of England in the 11th century gave rise to heavy borrowings from Norman French. All noble Lords will be aware of the use of Norman French in Parliament to signify some of the formalities of Bills passing. Many French words or phrases have crept into the English language, such as mirage, genre, coup d’état and rendezvous. The point is that the English we all speak today is a beautiful language that has a wonderful, rich literature for us all to enjoy, but it has evolved over time. That evolution is a consequence of our development as a nation and as a people, of our history and the influences that have shaped us and our history. It is not a stand-alone, stand-still language. It is growing, evolving, developing and shaping us into who we are today. That is how it should be.
I very much support the initiative undertaken by my right honourable friend Mr Jack Straw in 2007. I read with real interest the paper by Mr Christopher Williams in the Statute Law Review, “The End of the ‘Masculine Rule’?”. It is clear from the paper that we are not the first Parliament or institution in the world to adopt gender-neutral drafting. We follow in the footsteps of both Australia and New Zealand, which were probably the first English-speaking countries to embrace the principle of gender-neutral drafting.
Mr Williams’s excellent paper informs us that as far back as 1983, the Parliamentary Counsel’s Office of New South Wales adopted the policy, and on a national level in Australia it was adopted in 1988. Similar reforms happened in New Zealand in 1985. In Canada the policy was adopted in 1991-92, and with the election of President Mandela and the ANC Government, gender-neutral drafting was adopted in South Africa. Looking at international organisations, the United Nations adopted gender-neutral drafting during the latter half of the 1980s. The International Labour Organisation began drafting its conventions in a gender-neutral way at around the same time. The European Union began the switch in 1998, though you can find examples there where the masculine rule still applies.
My noble friend Lady Corston, when she was the Member for Bristol East in the other place, raised the issue in the Commons on
“It may seem a small thing in one sense, but language is important. We have a society in which we believe men and women are equal, so why shouldn’t the law refer to us equally? Many other English-speaking countries do so already”.
I very much agree with the comments of my friend in the other place. You could say that we have not been quick off the starting blocks here. We took more of a long-term view, but correctly made the change in 2007.
I very much hope that the noble Lord, Lord Gardiner of Kimble, will tell the House when he responds to the debate that, moving forward, the changes announced by Mr Jack Straw are here to stay. In saying that, I accept fully that we are not going to go back and start rewriting laws just to change the language, but that, in a sensible and proportionate way as we move forward, gender-neutral drafting will become the norm. I also accept fully that we have to ensure that the legislation we pass does what it says on the tin and that there must not be any inconsistencies. We should work to achieve the maximum clarity in the laws we pass in Parliament.
As I see it, when we have a Bill making a minor change or textual amendment to an existing Act, it would not be sensible to go through and make a whole load of gender-neutral changes to the original Act. But, where you introduce a whole new Bill to put substantial new laws onto the statue book, you should seek to make sure that it is gender-neutral. I do not agree with the point made by the noble and learned Lord, Lord Scott, about the matter of principle, but I agree with him that the legislation we pass has to be clear. He highlighted skilfully to the House some of the issues and problems that we have with the drafting of statutory instruments. I am sure that the Minister will look seriously at them, because they have serious implications for the Government, when he takes this away afterwards.
I am also of the opinion that our language evolves with us and reflects on us. As it illustrates who we are, it must make sense and not be difficult to understand. Nowhere is that more important than in the laws we pass. Again, I thank the noble and learned Lord, Lord Scott, for his interesting debate today. I thank all noble Lords who spoke and look forward to the response of the noble Lord, Lord Gardiner of Kimble.
My Lords, I congratulate the noble and learned Lord, Lord Scott of Foscote, on securing this debate, which has been informative and illuminating. It is somewhat daunting to reply to two noble and learned Lords and to the noble Lord, Lord Quirk, who is an expert in language and linguistics of some considerable renown. We were also reminded by the noble Lord, Lord Kennedy of Southwark, of the evolution of our language. All this has helped to inform this debate. While I know that some have reservations about the style of the legislation which has resulted from the use of gender-neutral language, I am sure that your Lordships will agree that the motives for making the transition were sound.
For many years parliamentary counsel, who draft legislation, relied on Section 6 of the Interpretation Act 1978, to which my noble and learned friend Lord Mackay of Clashfern and the noble and learned Lord, Lord Scott of Foscote, referred. That provision says that words referring to the masculine gender include the feminine, and vice versa. In practice, this means that male pronouns such as “he” were used in contexts where a reference to women and men was intended. This indeed aided brevity, but many people believed that the practice tended to reinforce historical gender stereotypes. The noble Lord, Lord Quirk, gave your Lordships some good examples of that.
The policy of gender-neutral language in legislation was announced by the previous Government in a Written Statement on
“gender-neutral drafting so far as it is practicable, at no more than a reasonable cost to brevity or intelligibility”.—[ Official Report , Commons, 8/3/07; col. 146WS.]
However, I reassure the noble and learned Lord, Lord Scott, that we are not abandoning the Interpretation Act. The 1978 Act is still needed for amendments to old legislation that predates the move to gender-neutral drafting. The noble Lord, Lord Kennedy of Southwark, referred to that. Parliamentary counsel sometimes still use gender-specific pronouns when amending old legislation to ensure that it remains coherent. The 1978 Act enables masculine or feminine words to be used in legislation to cover both genders but does not contain drafting guidance about how to draft.
Even before the move to gender-neutral drafting in 2007, there was no requirement to use gender-specific pronouns. There are plenty of examples of old provisions that were drafted in gender-neutral terms and without reliance on the 1978 Act. Interestingly, the 1978 Act was a consolidation and may be traced back to legislation first enacted in 1850. I know that the noble and learned Lord, Lord Scott of Foscote, referred to the 1978 Act as not being ancient, but 1850, while it may not be very ancient, is quite a long time ago.
The move to gender-neutral drafting brought us in line with other jurisdictions which use the English language, where it had been the norm for many years: Ireland, New Zealand, Canada, parts of Australia and the United States of America, as well as the three devolved legislatures. The noble Lord, Lord Kennedy of Southwark, included South Africa in that list. With the change to gender-neutral drafting, a range of drafting styles was developed: for example, omitting the pronoun, repeating the noun, replacing the noun with a letter such as the letter P, using defined terms or using “he” or “she”, and so on. Parliamentary counsel have tried to simplify drafting so that it is not ambiguous or too lengthy.
In places, the move caused drafters to reword propositions so that they indeed became shorter and clearer. For example, “the Secretary of State may, if he thinks fit” could become simply, “the Secretary of State may”. Before the change, the drafting may have said, “A person commits an offence if he drops litter in a public place”, but now it could be simplified to, “A person who drops litter in a public place commits an offence”. However, we recognise that there are some techniques that people find easier to follow than others, and I have much sympathy with people who do not like techniques such as the use of letters—“P” and so on—to identify different people.
I hope that your Lordships will be pleased to note that the Office of the Parliamentary Counsel has agreed to revise its drafting guidance to recommend that the approach of using letters to identify people is used sparingly, although it may sometimes be a useful way to distinguish between several people. It will also be considering whether any other adjustments could usefully be made in light of the helpful feedback from this debate.
Etymologists may disagree but the guidance from parliamentary counsel provides that some terms are to be treated as gender-neutral. These include “testator”, “manager” and “actor”, although they have female equivalents. There are also some terms that have always been gender-neutral—for example, Secretary of State and Prime Minister.
Gender-specific pronouns are still sometimes used in legislation that amends older legislation, as it is important for the amended Act to remain coherent. For example, if there is a list of conditions each of which begins with “he”, it would be confusing to start a new condition starting with “the person”.
The guidance also recognises that there must be some flexibility and that there will be some Acts where only gender-specific drafting can be usefully applied. In a case where a person has to be of a particular gender—male or female—gender-neutral drafting does not require drafters to avoid referring to the gender. I think your Lordships would agree that that would be the case for legislation about maternity.
I turn to the specific points raised by the noble and learned Lord, Lord Scott of Foscote, in his detailed account of various provisions in subordinate legislation. I hope that he will forgive me if I do not engage in what I would call the intricacies of what he has quite rightly outlined, but I reassure noble Lords that the Government remain committed to producing high-quality legislation that is clear, accessible and free from ambiguity. We believe that gender-neutral drafting is perfectly compatible with that objective. It ensures that our law is expressed in a way that clearly covers all citizens without requiring people to consult Section 6 of the Interpretation Act 1978.
Most of the examples that were mentioned concern the use of “they” as the third person singular pronoun. Although some regard this usage as grammatically incorrect, it reflects common usage, as my noble and learned friend Lord Mackay of Clashfern said with regard to the brief from the Library, and is well precedented in literature over the centuries. However, the noble Lord, Lord Quirk, referred to the risks of using the word “they” in the singular form. This is noted in the parliamentary counsel’s drafting guidance, and care obviously needs to be taken when drafting any legislation to ensure that it is not ambiguous.
I turn to the Good Law initiative, which the First Parliamentary Counsel is spearheading. This initiative, about which I have spoken before in your Lordships’ House, aims to improve drafting, reduce complexity and make the law more accessible, and I believe that these are the objectives that we all seek. The parliamentary counsel’s initial report aspires to good law, which is defined as necessary, effective, clear, accessible, coherent and, if I am allowed, I would like to add my noble and learned friend Lord Mackay’s word “lucid”. This is a sentiment that I very much hope we share across all sides of the House. With that in mind, the Government acknowledge that the use of gender-neutral drafting must result in legislation that is effective, clear and accessible.
I thank all noble Lords who have spoken today. I will be taking away what has been said. I know that officials, particularly Good Law initiative officials, will be looking strongly at the points that have been made. The Government take extremely seriously the importance of ensuring that legislation is more accessible and less complex. As I say, I will ensure that full consideration is given to everything that your Lordships have spoken about today.