“Bureaucratese”

Newly-minted Leader of His Majesty’s Official Opposition, Pierre Poilievre, recently announced that he plans to propose a “plain-language law” to tackle “bureaucratese.” According to Poilievre, bureaucratese “costs the economy a fortune.” His proposal will “require government publications to use the fewest and simplest words needed to state information.” Now, much of this proposal is probably noise rather than signal because a general rule for politicians (especially in leadership campaigns) is to heavily discount what they say. The scope of the proposed law is unclear, though it seems that it will apply to statutes as well as other public-facing documents, with the Auditor General testing departments for compliance and even a complaint line to report cases of bureaucreatese. Nonetheless, and abstracting away from the specifics of Poilievre’s proposal for a moment, the topic of bureaucratese is a puzzle. Everyone should want to limit it; but how? Is it worth it? The answer is complex, in part because I have no idea if bureaucratese is widespread. I’m also alive to the idea that this whole post might be bureaucratese of a sort. Nonetheless, I’d like to offer some general responses to these questions.

To the extent bureaucratese exists, it is not a small thing. There is something in the idea that inaccessible jargon makes the law, policy, and administrative decisions difficult for people to understand. In response, other jurisdictions have attempted to address the problem. In New Zealand, a Plain Language Bill is currently under study, which would require the appointment of “plain language officers” to ensure that agencies comply with provisions of the statute. In 2010, the United States Congress adopted a similar law, which requires the designation of a senior official for “plain writing,” the establishment of a procedure for implementation, and staff training.

These laws attack, apparently, the same problem. But it is difficult to establish a working definition of “bureaucratese”. The International Plain Language Association says that a communication is in plain language “if the wording, structure, and design are so clear that the intended audience can easily find what they need, understand what they find, and use that information.” Seems fine.

But the term “bureaucratese,” to my mind, relates to the specific problem of a public servant communicating to the public in a way that makes the intended message unintelligble. It specifically concerns what the famous grammarian H.W. Fowler called “jargon”: (1) “words or expressions used by a particular group or profession” and (2) “incomprehensible talk, gibberish, with the second arising conceptually out of the first, although this is not how the meanings evolved historically.” The idea is that those accultured in a professional setting will develop language and shorthand to explain complex concepts, and that language may—by design—be impenetrable for those outside the setting

In a d society that relies on discretionary regulation to deal with problems, a professionalized bureaucracy is obviously expected. And “bureaucratese”—jargon—can even be desirable sometimes. Public Servant A talking to Public Servant B about some technical issue saves time by conversing in their field-specific jargon. Bureaucratese might create economies of scale within bureaucracies.

This is one thing. It is quite another when we talk about public-facing government documents, whether positive laws or front-line administrative decisions. But the problem isn’t necessarily equal in these domains. Legislative drafters often must use technical language to capture certain phenomena. A whole host of conventions assist modern legislative drafters in ensuring uniformity and consistency in capturing these phenomena. Complex, esoteric language must sometimes be used to ensure that the exact same phenomena are captured by different laws, over time. I am not an expert on legislative drafting, but it strikes me that plain language in this context must be balanced against the judicious use of technical language, and as I will point out, the costs of ensuring compliance (whether through the snitch line or the Auditor General).

The problem of bureaucratese becomes worse when we consider public-facing communications and administrative reasons for decision. In this context, bureaucratese can have a more sinister quality. Orwell targeted the problem by noting that “political language is designed to make lies sound truthful, and to give an appearance of solidity to pure wind.” Bureaucratese can be a benign method of communication, but it can also be used deceptively, to minimize or avoid regular public scrutiny. People who cannot understand a message might misconstrue its meaning.

One great, recent example of bureaucratese in public-facing communications is found in a press release by Covenant Health. At the Misericordia Hospital in Edmonton, Trista Champagne complained that “she and other patients waited for hours on the floor inside what she called a ‘dirty makeshift garage’ at the Misericordia Community Hospital. The floor had dry blood on it. Covenant responded that “[t]hroughout the pandemic, hospitals…have used non-traditional spaces for patients to wait after they’ve been triaged.” The relevant issue term here is “non-traditional spaces.” Like all or at least some bureaucratese, there is truth to the idea that a garage is a non-traditional space. But the phrase appears to be used by hospital administrators and others to describe everything other than proper emergency room care. Here, jargon is being used to diminish or minimize the reality of patients lying on blood-stained floors. We could all produce more examples of this.

Bureaucratese can also be an issue in judicial review of administrative action, because it can obscure the basis of a decision, making it difficult for courts and those affected to tell whether the decision tracks to the law. Some administrative decision-makers, like the Social Security Tribunal, have implemented measures to guide self-represented litigants through the process. Others are farther behind in terms of facilitating ease of access. And the Supreme Court’s decision in Vavilov implicitly attempts to address this problem by mandating responsive justification in cases where reasons must be provided. A concern about justification begins with the reality that most people meet the government not in courtrooms, but in the mundane boardrooms and offices of the administration. In many of these contexts, there is no comparable legislative process.  Where reasons are required, especially in individualized settings, they are the primary means through which a court assesses whether a decision is reasonable—whether it has been properly justified to the individual affected by the decision.

In this sense, the provision of understandable reasons facilitates contestation of government action by those affected by it. When a decision is wrapped in jargon–economic, medical, what have you– the person who is affected by the decision might not understand what the decision means, and be unable to contest it, or otherwise not understand its implications. Navigating complex bureaucratic schemes, even with the assistance of a lawyer, is not an easy or cheap task. This state of affairs gives rise to concerns about “bureaucratic domination”—the idea, popularized by civic republicans and liberals—that those with superior knowledge may use that knowledge to impose their arbitrary whim on an individual (see Henry Richardson’s excellent text) . In such cases, there is a fair concern that the power exercised may not track to the public interest; or more specifically, that it will evade scrutiny or understanding. It is for this reason that Vavilov seeks responsive justification: to facilitate judicial review, and to ensure accountability of government action. It is also for this reason that the Federal Court of Appeal continues to warn against immunization of government action from review through the withholding of documents or assertion of privileges (see one example of many, Lukacs v Canada (Transportation Agency), 2016 FCA 103 at para 7).

More can be said about this. For now, it is worth pointing out that no one bill is likely to solve the problem of bureaucratese absent potentially costly enforcement. For one, the plain-language bills that have been proposed in the New Zealand and adopted in the US arguably layer an additional level of bureaucracy in order to solve the problem of bureaucratese. This is because the bills usually mandate departments to appoint individuals to police bureaucratese; plain language “officers” and the like. The National Party in New Zealand had this to say about the New Zealand plain language bill:

The National Party strongly opposes this bill. It is the very legislative essence of a solution looking for a problem….National supports the aim of improving the effectiveness and accountability of the public service in using clear, concise, easily understood language in public documents. We do not believe it should be a legal requirement.

In its legislative scrutiny briefing memorandum, the Office of the Clerk considered the requirements in the bill to be uncertain and without consequence. It suggested the committee explore with officials whether non-legislative alternatives exist. We did. There are. National is disappointed that those alternatives were not pursued.
The requirement to appoint Plain Language Officers is particularly galling. Despite assertions that this could be carried out by existing staff, we are in no doubt that taxpayers will be required to fund new roles to give effect to the requirements in the bill. The Government has a track record of massively increasing bureaucracy and in our view this bill will continue that trend.

National’s concerns raise an important point about implementation . If it costs more to implement measures against bureaucratese, then one wonders about the point of the proposal. This is where cost-benefit analysis can be useful. I would expect that a plain language law as applied to statutes or other internal documentation would not change much or would otherwise not be worth it. However, bureaucratese should be limited and controlled in contexts like front-line administrative decisions, where the risk of arbitrariness might be elevated. In such cases, we should think that bureaucratese cannot count as responsive justification–it cannot speak to an individual’s specific interests. Any effort to stamp out bureaucratese should start where it would make the biggest difference.

Author: Mark Mancini

I am a PhD student at Allard Law (University of British Columbia). I am a graduate of the University of New Brunswick Faculty of Law (JD) and the University of Chicago Law School (LLM). I also clerked at the Federal Court for Justice Ann Marie McDonald. I have interests in: the law of judicial review, the law governing prisons, and statutory interpretation.

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