Legislation: Gender-neutral Language

Debate between Lord Ahmad of Wimbledon and Lord Scott of Foscote

Thursday 12th December 2013 Lords Chamber

[Lord Scott of Foscote (CB)]

My Lords, on 8 March 2007 the right honourable Jack Straw, the then Leader of the House of Commons, issued a Written Ministerial Statement. The same Statement on the same day was issued by the noble Baroness, Lady Amos, in this House. It related to the use in the drafting of legislation of male pronouns—he, his and him—in context where the individual referred to might change from time to time and might be either a woman or a man. The Statement said:

“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 8 March 2007 Statement was to discourage the use in legislation of the masculine pronouns—he, him and his—except, of course, where the individual was known and was male.

There are, however, two objections to the drafting instructions given to government officials pursuant to the 8 March 2007 Statement. The first is an objection of principle. The 1978 Act is not an ancient Act that could be regarded as out of date or overtaken by obsolescence. Section 6 represents Parliament’s considered guidance to the use in legislative instruments of gender-related words. The guidance was followed for many years. It avoided ambiguity in the construction of legislative instruments and brought clarity to the identification of the persons to whom the legislative provisions in question were intended to apply.

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”.

[Lord Ahmad of Wimbledon (Con)]

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.

[Lord Scott of Foscote]

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 8 March 2007 statement to those who draft government legislation, were ever given. Statutes and statutory instruments ought not only to be clear and free of ambiguity, but surely ought also to stand as models for the correct use of the English language. To prostitute the English language in pursuit of some goal of gender equality is, I suggest, unacceptable. Moreover, it is quite unnecessary. Section 6 makes all apparently gender-specific pronouns in law gender-neutral, context permitting. In any event, there is no reason other than habit why it should always be male pronouns that are used when both men and women are intended to be referred to. By all means let those who do the drafting sometimes use feminine pronouns, relying on Section 6, where the context admits, to include men, or vice versa.

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.