Montreal, November 4, 2007 • No 240

  

OPINION

 

 Etienne H. Sepulchre is a self-employed jurist who lives near Mahone Bay, Nova Scotia. His blog explores the proliferation of regulatory systems set up by the public sector and increasingly by the private sector as well.
 
 

MUSINGS ON WRITING
REGULATORY DOCUMENTS
 

by Etienne H. Sepulchre
 

          In my twenty years or so as a regulatory drafter/editor for Canadian public institutions, I have been haunted by several issues which were never resolved to my satisfaction. One of them has to do with how much conciseness to sacrifice for the sake of precision, a timeless issue going back as far perhaps as the Roman Emperor, Constantine, an early promoter of codified laws.
 

          Both senior and less senior technical experts I worked with on regulatory documents would often complain that, as a drafter, I was too concerned with enforceability issues which made any given technical rule difficult for the regulated public to readily understand and comply with, "voluntary compliance" being the primary objective of the day as it still is. Some of these technical experts backed the principle that not all regulations or technical rules are intended to be enforceable, but rather gentle indicators, or reminders, of the conduct expected from the regulated public or industries.

          In one instance, a senior aviation technical expert annoyed with legalese went so far as to suggest enacting a single rule for civil aviation operations requiring that: "Aircraft shall be flown safely." The rest, i.e., the technical details on how to achieve the desired safety level, would be expressed through advisories, letters of intent, guidelines, recommended practices and other technical documents having no force of law but nevertheless substantively expanding the basic rule. This position seemed somewhat odd to me, having been trained to regulate through enforceable rules under the Anglo Canadian common law system. I was only too aware that expanding basic rules through administrative documents could lead to legal uncertainty and inconsistency, if not outright arbitrariness, among other undesirable effects of administrative convenience.

          However, speaking of bare-bones catch-all rules, I have often been moved to recall the time I took my driver's licence test back in Belgium where I grew up. The examining instructor emphasized the essential rule that would keep me out of trouble as a driver, and it went like this in French: "Le conducteur d'un véhicule motorisé doit à tout moment être maître de sa vitesse." End of rule. Translated into English, it would go like this: "The driver of a motor vehicle shall keep his speed under control at all times." The words "at all times" would entail being aware of driving conditions such as the state of the vehicle, one's experience, the type of pavement and size of roadway, visibility, the likelihood of encountering pedestrians, cyclists, etc. With time, as I gained experience as a driver, I came to realize the wisdom behind that simplistic rule. Its completeness, though, was not apparent at first blush. One had to get on the road to put it to the test, so to speak.

          In aviation circles, similar wisdom may be found in the catch-all concept, not a rule as such, of "situational awareness," a fancy technical term that stands in general for exercising good judgment and making the right planning and other decisions, namely by "staying ahead" of one's aircraft. However, it goes beyond mere compliance with legislation; it actually denotes a positive and proactive attitude toward safety that is quite all-encompassing, within reason, and results in careful planning of a flight and attention to evolving circumstances as the flight progresses.

          In either situation, pilots or drivers are expected through concise or precise rules to exercise good judgment, like the celebrated "reasonable person," in order to fly or drive safely, as the case may be.

          What are the limits of precision, one might ask? The answer that pops into my mind is that one should not legislate common sense. In other words, a regulatory document drafted in precise terms should defer to the common wisdom and clearly established customs and practices prevailing in the regulated industry. At sea, this would be seamanship; and in the air, airmanship. I personally take a dim view of regulatory documents that essentially mirror common wisdom and proven practices widely applied in regulated industries.

          It could be argued that such a principle goes without saying. However, when the pace of technological progress leaves common wisdom and best practices behind in the dust, what is the alternative? Government-backed rules, it would seem.

          Today, as an example, aircraft noise has been greatly reduced; their noise prints around airports in densely populated areas conform to elaborate rules that have been over two decades in the making. These technical rules would not have been achievable but for engineering know-how applied to retrofit kits and newly designed jet engines.
Back to my youth in Belgium: I remember a rule about the noise of motorcycles which simply stated that "No motorcycle exhaust system shall cause noise such that a person standing by the idling motorcycle would not be able to hear the sound of its internal mechanical moving parts." Not bad for conciseness and common sense. But then, how easily enforceable through Belgian Courts such a simple rule would be nowadays, I have no idea. These days, noise emitted by transportation devices are measured in decibels using approved instruments, from the point source of the noise.

          Once a rule-of-thumb, the above empirical rule on motorcycle engine and exhaust noise may well have become more detailed and technical since. Suffice it to point out that this noise-limiting rule for motorcycles was typical of the regulatory restraint and conciseness that prevailed at the time in Belgium, France and other jurisdictions governed by a Napoleonic style of tightly-knit and codified rules.

          One wonders if the same approach might work in Common Law jurisdictions and satisfy the desire for both precision (certainty of the law) and user-friendliness in technical rules.
 

"I think that too many regulations, legislated standards and specifications are excessively complex and constitute a needless burden on the regulated public and industries."


          Mind you, lovers of linguistic conciseness will also find gems in Common Law statutes, such as Section 2 of the (Ontario) Conveyancing and Law of Property Act which states admirably: "All corporeal tenements and hereditaments, as regards the conveyance of the immediate freehold thereof, lie in grant as well as in livery." There is a lot of history of real property law packed in that short stylish section. Hard to fathom really for ordinary persons or perhaps even for most lawyers, but well worth digging into. (My favourite research starting point for gaining a better understanding of the historical significance of such dense wording are the Oxford Essays in Jurisprudence. In some cases, the Oxford Companion to Law or similar legal reference will provide a quicker yet satisfactory explanation at the surface level.)

          Interestingly, French legal proverbs show again the evocative power of conciseness. Example: "En fait de meubles, possession vaut droit" which means more or less: "In matters of personal property, possession affords good title." Whether we are talking here of "mere possession," "actual possession," "present possession," etc., is another matter, as the Common Law recognizes several types of possession. Still, I have yet to find a sufficiently concise English equivalent to the French rule that states: "Nul n'est tenu de rester dans l'indivision." In the common law system, some equally concise statement would have to be built around the concepts of "joint tenancy" and "tenancy in common" such as, incompletely stated: "Nothing is permanently held in common."

          However, I digress from regulatory drafting, which is the focus of this article. If conciseness and precision cannot co-exist in the same regulatory document, I do believe that legislated rules should be kept to a minimum and their details worked out in explanatory documents. Would I agree to a single rule governing aircraft airworthiness and enacted by the State that simply provides that: "Aircraft shall be designed, manufactured and maintained in a way that makes them safe for their intended use," and leave it to engineers and technical writers to expand on that rule with precision and user-friendliness in mind? No. That is just cutting it too short under our present public law requirements, including those of the enabling legislation, and our International Law obligations. On the other hand, I think that too many regulations, legislated standards and specifications are excessively complex and constitute a needless burden on the regulated public and industries.

          The burden these regulations, standards and specifications create on the public and on industries results also from their lengthy development and amendment process. There are many situations, however, where the regulator shows restraint and wisdom by refraining from enacting detailed rules, conveniently referring to, for example, "generally accepted accounting practices." Hard to imagine the pages and pages of regulatory material that such a quick reference obviates.

          Even though the Civil Law of the province of Quebec is perhaps more conducive to conciseness while the common law of other Canadian provinces is more conducive to precision, whether a regulatory document should be drafted in concise or precise terms depends on other factors as well. Among these is the inherent complexity of the subject matter being regulated. The more complex the subject matter, the more precise the regulatory document will likely be. To illustrate this point, I refer you to my earlier example of noise control for motorcycles versus airliners.

          However, complexity is relative in itself, in that it evolves with time. For instance, again in the case of aircraft operations, if the concept of "situational awareness" is taught at an early stage to prospective pilots and, with time, becomes deeply rooted in the collective subconscious of the pilot community, would there be a compelling need for a regulatory provision requiring every pilot planning to undertake a flight to obtain all the information reasonably available pertaining to that flight? Also, precision can only go so far in the sense that the more precise the regulator wishes to be in enacting regulatory documents, the higher the chances of missing a number of requirements that should have been enacted as well. This is why many regulators go through great pains to cover all the foreseeable situations to be regulated, only to include a catch-all provision in case they missed some. As an example of this, I have in mind the prohibition against the "negligent operation of an aircraft," which is very broad in scope.

          Conciseness is perhaps the better way to go in regulating an activity that has sufficiently matured over time (for instance, airmanship and seamanship were part of the culture of airmen and mariners, respectively, long before detailed rules were enacted to govern their conduct in the air or at sea). The regulator should in most cases defer to the common wisdom that prevails in any area of human activity, unless the pace of technology or new unexpected trends in dangerous conduct compel the regulator to fill the void in the common wisdom, if only temporarily.

          One should also keep in mind that regulatory systems have several non-governmental components which are less obvious than regulatory documents, and yet are quite effective in keeping the regulated public or industries within the bounds of permissible conduct. Some of these components might be, in the case of an airline, insurance costs, the airline's reputation or public image, potential loss of market share, its internal performance reward system, the fact of belonging to an association focused on accident prevention and safety education, as well as the pride most professionals take in doing well what they are best at doing. These have a "regulatory" function in the sense that they do regulate conduct, aside from regulations proper.

          One also finds several private regulatory bodies (that is, excluding government-enabled self-regulated professions and organizations) that develop standards that are applied voluntarily, such as the International Standards Organization with its well-known ISO system.

          The time when scholars would state that laws are necessary to protect people against their own folly are perhaps coming to an end. The Welfare State has retreated from regulating nearly all aspects of our lives and government is now using toned-down terms such as "establishing partnerships" with industries, educating the public, exploring collaborative approaches, etc. Industries themselves are taking matters into their own hands by discussing "best practices" at major conventions and then implementing them, sometimes as an adjunct to basic legislated rules.

          This is a far cry from the government's previous interventionist attitude that would only stop on the threshold of the "bedrooms of the nation."