Legislation: Gender-neutral Language

Lord Gardiner of Kimble Excerpts

Thursday 12th December 2013 Lords Chamber

[Lord Gardiner of Kimble (Con)]

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 that 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 8 March 2007, as the noble Lord, Lord Kennedy of Southwark, said. Parliamentary counsel were asked to use,

“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.