The Queen’s English

The Queen’s English was
Good enough for Jesus Christ
And it’s good enough for me

Don McGlashan – performed by The Mutton Birds


In 1986 there was a BBC TV series entitled The Story of English. It was an excellent series that traced the history and development of a language of an obscure Germanic tribe to the present. There were 9 episodes that dealt with the rise of the language, its various changes as the language spread around the world. One episode dealt with the influence of the Scots and their variety of English upon various dialects in the United States and even into the effect that it has had upon the rolling “r” that is a characteristic of English speakers in Otago and Southland.

The series was accompanied by a book of the same title in 1986 which was reprinted in 1987 but which, alas, has gone out of print. It was a wonderful companion to a series that came and went to and from our screens. My copy served as a constant reference and source for information about the language that was both scholarly and accessible.

I often wondered if the programme was available on video-tape. The answer was Yes, but to locate a copy was very hard indeed. The programme was also released on DVD, not by the BBC but by an American publisher. I have no doubt that the programme screened on American TV, probably PBS. I managed to locate a copy on Ebay and have been watching parts of it again.

Co-incidentally a programme hosted by Melvyn Bragg entitled The Adventure of English has been screening on the Arts Channel on Saturday evening at 7:30. Like its predecessor, it approaches the subject in a thematic manner whilst maintaining an historical chronology. A recent episode, for example, traced the rise of English as a language of scripture from Wyclif and the Lollards through to Tyndale’s Bible and to the glorious King James version.

Bragg traces the development of the English vocab and the origin of words and phrases. He is able to demonstrate the way in which new words, now in common use, were first used in the Bible and I have no doubt that he will conduct the same exercise when he gets to Shakespeare. But there is a term that he uses for vocab which resonates with me, and emphasises the aspect of “language as treasure” and the term that he uses is “word hoard”. This term has an historical resonance in the language for it calls upon a term synonymous with treasure in the culture and tale telling of the Old English and the Norse. I do like its use and the way in which Bragg demonstrates the growth of the “word hoard” over the centuries. The Adventure of English is also available on DVD and I would like to think that it is used as an educational resource, along with The Story of English. Either programme would certainly enliven a subject which for some is deadly dull.

It is a pity that the study of English has been folded into the broader field of “:communications studies” in many of our schools, and that in most schools the study of Shakespeare has been dropped from the curriculum. Part of the problem with Shakespeare is that his work is not taught properly. Shakespeare was a dramatist. His work was written to be performed, not read privately nor even read aloud. The teaching of Shakespeare MUST start with performance. After that, perhaps the text can be studied.

I recall in 2009 attending a performance of As You Like It at the Globe in London. The Globe is created pretty much as it was in Shakespeare’s day. The seats that surround the pit are wooden and hard and justify the expenditure of a couple of pounds for a cushion. The pit is standing room only. It was full to capacity with young people – school students and University students – all prepared to pay five pounds to stand for three hours and watch Shakespeare. I doubt it would happen here, but it gave me joy that it happens there.

So why am I writing about English in a blog that is about Law and Information Technology. There are a number of aspects to the answer. I said in an earlier article that law is all about information and information is communicated. The way in which information is communicated is by language and is aided by technology. For those reasons the language of information communication is of more than passing interest and importance. In these days the medium of communication plays its own important part.

Because lawyers communicate a particular type of information, the quality of communication of that must focus upon accuracy, precision and clarity. In the past lawyers have been criticised for the use of obscure and convoluted language, and to the modern ear or eye that is correct. In defence of those lawyers I suggest that perhaps they were seeking clarity and precision. Modern drafting emphasises the use of what is referred to as “plain English” although I sometimes wonder if the clarity that is sought in simplicity is often achieved.

An example may be seen in the language of legislation. Often a section of a statute will state a proposition in subsection 1. Subsection 2 will then commence with the words “for the avoidance of doubt”. The inference that arises from the use of those words is that there is a possible area of doubt that may arise in subsection 1. I would have thought that accurate draftsmanship would ensure that there was no doubt in subsection 1. Yet the practice of using “for the avoidance of doubt” continues..

Often the phrase “for the avoidance of doubt” is used to introduce an exception to the rule stated in subsection 1. In such a case the word used to describe such an exception was a proviso and the words used to introduce a provisio were “provided that”. Certain circumstances would be set out where the subsection 1 rule would not apply. The following example comes from the Copyright Act

81A Copying sound recording for personal use

(1) Copyright in a sound recording and in a literary or musical work contained in it is not infringed by copying the sound recording, if the following conditions are met:

(a )the sound recording is not a communication work or part of a communication work; and
(b) the copy is made from a sound recording that is not an infringing copy; and
(c) the sound recording is not borrowed or hired; and
(d) the copy is made by the owner of the sound recording; and
(e) that owner acquired the sound recording legitimately; and
(f) the copy is used only for that owner’s personal use or the personal use of a member of the household in which the owner lives or both; and
(g) no more than 1 copy is made for each device for playing sound recordings that is owned by the owner of the sound recording; and
(h) the owner of the sound recording retains the ownership of both the sound recording and of any copy that is made under this section.

(2)For the avoidance of doubt, subsection (1) does not apply if the owner of the sound recording is bound by a contract that specifies the circumstances in which the sound recording may be copied.

This section deals with “format shifting”. It allows people to make copies of sound recordings in certain circumstances. Subsection (2) addresses the situation where a copyright owner may impose contractual restrictions upon the copying of a sound recording. The CD that a person purchases may contain terms and conditions of sale that prohibit the exercise of format shifting where, under normal circumstances, the criteria set out in subsection (1) apply.

Subsection (2) is an exception to the rule. There is no ambiguity or doubt about the circumstances in which the rule in subsection (1) may be engaged. Thus, the use of the words “for the avoidance of doubt” suggests a doubt exists where in fact there is none. The use of the phrase “provided that” should be used to create the exception to the rule.

What has happened with this use of plain English drafting is that the language that is used is imprecise and inaccurate. The statement of the rules contained in legislation and which are binding upon us all should be clear and unambiguous and should not use imprecise or inaccurate language. In addition, it should be unnecessary EVER to use the term “for the avoidance of doubt” in legislation. There should NEVER be any doubt as to the meaning of the language of legislation.

An example of language in legislation where there is no room for doubt or ambiguity may be seen here:

Interceptions not to target domestic communications

Neither the Director, nor an employee of the Bureau, nor a person acting on behalf of the Bureau may authorise or take any action for the purpose of intercepting the communications of a person (not being a foreign organisation or a foreign person) who is a New Zealand citizen or a permanent resident.

I have looked at clarity and precision in the use of the English language that is necessary in communicating the law. Another area that is of interest and that causes me concern is the communication of information that informs the Court and upon which a Judge bases his or her decision. Once again information should be communicated clearly, accurately and unambiguously. An impediment to those objectives is the improper use of the language. Whilst grammatical error may be subject to automatic error correction., and whilst the occasional grammatical lapse – which prima facie should never occur – may be tolerated, it becomes a matter of concern when grammatical errors become consistent and common.

The issue that concerns me is the proper use of the past tense. When a prosecutor is informing the Court of the allegations that are made against an accused, those allegations should be stated in the past tense. The following is an example:

On Sunday 20 April the defendant came home. He was intoxicated.

He went into his home and demanded his dinner.

The complainant put a plate of food in front of him.

The defendant said that the food was cold and inedible.

He threw the food across the room and struck the complainant four times about the body with a closed fist.

He then left the house.

This is a clear narrative of past events. The prosecution rely upon this to establish the elements of the crime of assault upon a female. The use of the past tense is proper, because the events described took place at a fixed time in the past.

What I have observed with increasing frequency in the Courts and on shows such as Police Ten on television that Police officers adopt a different means of describing past events that is both inaccurate and grammatically wrong. This is how the narrative of events above translates into a summary of facts presented to the Court.

On Sunday 20 April the defendant has come home. He has been intoxicated.

He has gone into his home and has demanded his dinner.

The complainant has put a plate of food in front of him.

The defendant has said that the food was cold and inedible.

He has thrown  the food across the room and has struck the complainant four times about the body with a closed fist.

He has then exited the house.

The first  thing that should be observed is that the use of the word “exit” as a verb is quite permissible and is of some antiquity. The Oxford English Dictionary (2nd ed), which is one of my sources of absolute authority in matters of the English language, gives the following examples:

1607 – Much like unto a Player on a stage‥As one distract doth exit in a rage

1652 – My souls better part exited, left The other languishing

I should say that my other authoritative source is Fowler’s Modern English Usage – an oldie but a goodie.

What is grammatically wrong in the amended passage is the misuse of the of the present perfect tense – that is the use of “have” with the present participle. The effect of this is to describe a past act or series of acts but by using the present perfect, the meaning becomes completely different in that the use of that tense suggests that not only did the action take place in the past, but that it is still continuing. Have or has are auxiliary verbs and modify the finality of the past tense. We use has or have with a past participle to describe an action that started in the past and is (or may be) still going on. In addition  the present perfect may be used to say that an action happened at an unspecified time before now. The exact time is not important. But the present perfect tense CANNOT be used  with a specific time in describing past events. The past tense MUST be used.

With criminal offending a date or date range is always an aspect of the charge. In the above example a specific date is alleged. The timing of the events is crystallised. In such a case the past tense should be used, and often it is not.

By now you are probably thinking that all of this is unnecessary pedantry but I argue that it is not. It is part of the quest for accuracy and precision in the communication of information. That quest involves the proper, accurate and grammatically correct use of language, specifically the English language. I do not accept the argument that the meaning is clear even although the grammar is wrong. The meaning is not clear BECAUSE the grammar is wrong. The rules of grammar are there to ensure clarity and accuracy of expression. Without those there is the chaos that arises from misinterpretation and ambiguity of meaning. And that is not what the Queen’s English is all about.


Law, Information and Technology

This is the text of a keynote speech that I gave to the New Zealand Law Society seminar on Technology Law held in Auckland on 20  June 2013. Because of appalling weather, the Wellington seminar was unable to be held but will be rescheduled (hopefully) later this yearThe powerpoint presentation used in the address may be found here.

It has been said that the only asset that a lawyer has is time.  This comment probably originated to justify time costing, a practice which, over the years, has become highly contestable.  But I would dispute the fundamental assertion.  A lawyer’s stock in trade is not time but it is information.  The law is no more and no less than a information acquiring, processing and sharing occupation.  The law in itself is information that limits or allows certain activities.  So that a lawyer may properly advise his client there is an information flow from client to lawyer.  The lawyer may then be required to look up the law in which case there is an information flow from the source of law, be it legislation or cases, to the lawyer.  The lawyer then communicates the information to the client thus the original information flow is reversed.  On the basis of the information (advice) received by the client, the client may make a choice as to the course of action that he or she follows.

Likewise Court proceedings are all about information.  Information takes certain forms, be it by way of pleadings which inform the Court what the dispute is about, evidence which informs the Court as to the strength of the assertions contained in the pleadings, submissions by which the Court is informed as to the possible approaches that it may adopt in determining the outcome, and from the Court to the lawyers and the parties when it delivers a decision.  In the course of processing the decision the Judge or Judges will embark upon their own information acquisition activities, looking up the law, checking the assertions or alternatively having recourse to an internal information exchange involving Judges Clerks.

In some way shape or form these have been  fundamental realities of the practice of law.

Before the introduction of the printing press the law was a mixture of primarily an oral culture supplemented by hand written manuscript material.  The introduction of a printing press enabled lawyers to approach and access information in a different way.  The printing press was utilised by the State to print legislation incorporating lengthy pre-ambles, which are as much political propaganda as anything else particularly during English Reformation.

Case books, which had been formerly hand written were reduced to print. In time the fundamental qualities underlying the content provided by the printing press – stability of text, fixity and standardisation of content, and wide spread dissemination allowed for the development of precedent which could not happen in the absence of a reliable text to which reference could be made.  It is also possible that legislation in print, and indeed the reduction of much legal information to print in the 16th century allowed lawyers to focus more carefully upon textual analysis and the way in which the printed word could be interpreted, giving rise to principles of statutory interpretation.

The printing press is an example of the impact of an information technology on the law.  My suggestion is that any new information technology is going to have an impact upon occupations or professions whose business is information. The rise of digital information technologies has already significantly changed the way in which we practise law.  Early examples can be seen in the introduction of word processing and computer based trust accounting. But they are earlier and rather clumsy examples of the way in which technology enables new ways of approaching information.

What we need to understand about new information technologies is that they have two major aspects.  One is the content layer and we are immediately familiar with this.  In fact it is probably the main thing that we think about when it comes to information technologies.  But there is more to it than that.  Every new information technology – and this has been the case from the printing press onwards – has its own particular properties or qualities that significantly differentiate it from other earlier information technologies.  This is particularly the case with digital information systems.  Examples of these properties are

  • Persistence,
  • Continuing change or what you could refer to as the disruptive element,
  • Dynamic information
  • Delinearisation of information
  • Dissociative enablement,
  • Permissionless innovation,
  • Availability
  • Participation
  • Searchability
  • Retrievability.

.Once you begin to understand the importance of the qualities or properties of a new information technology then you begin to get some insight into Marshall McLuhan’s comment “the medium is the message.”[1]   Although we may be dazzled by the content which McLuhan suggested was the piece of meat that attracts the lazy dog of a mind, we can begin to get some understanding of how it is that new information technologies are going to change not only our approaches towards information but also some of our fundamental behaviours.  This may reach the point where even the values that we may attribute to information that underlie certain behaviours may themselves change.   And this is the case with the law.  One only needs to consider the rise of remote evidence giving – both spatial as the case with audio visual links or temporal as is the case with pre-recorded evidence – to understand the revolutionary impact that these forms of evidence giving are going to have upon the traditional Court case.  Technology can enable the “non-presence” of witnesses. Formerly, court cases have been all about physical presence of all the “players”.  Indeed in the early days of pre-recorded evidence or audio visual links Judges scrambled to find reasons why these technologies should not be used emphasising among other things the importance of presence.[2]

However there are hidden sides to the impact of new technologies and these lie in the way in which the properties that I have described of new technologies influence us.  Marshall McLuhan said “we shape our tools and thereafter our tools shape us” and this of course gives rise to the question of whether or not the internet changes us forever.  Underlying this theory is the concept of neuroplasticity – the ability of the brain to adapt to and learn from new stimuli.   The concept of neuroplasticity was picked up by Nicholas Carr in his book The Shallows: How the Internet is changing the way we think, read and remember.[3]  His book, based upon an earlier article that appeared in the Atlantic, has as it thesis that the internet is responsible for the dumbing down of society based upon the way in which our minds respond both to the wealth of information and its availability.

The neuroplasticity argument is picked up by Susan Greenfield[4] who believes the web is an instant gratification engine, reinforcing behaviours and neuronal connections that are making adults more childlike and kids hungry for information that is presented in a super simplistic way but in fact reduces their understanding of it.  Greenfield is of the view that the web spoon feeds us things to capture our attention. This means we are learning to constantly seek out material that stimulates us and our plastic minds are being rewarded by our “quick click” behaviour.  We want new interactive experiences and we want them now.

This view is disputed by Aleks Krotoski[5] who firstly observed that there is no evidential support for Greenfield’s propositions which pre-suppose that once we used the web we will forever online and never log off again.  According to Greenfield, says Krotoski, we become connected to our computers and other devices in a co-dependent exclusive almost biological way ignoring where how and why we are connecting.  Krotoski, for example, disputes internet addiction, internet use disorder or neurological rewiring.

In some respects Carr and Greenfield are using the “low hanging fruit” of technological fear[6] to advance their propositions.  Krotoski’s rejection of those views is, on the other hand, a little too absolute and in my view the answer lies somewhere in between.  The issue is a little more nuanced than whether or not the Internet is dumbing us down or whether or not there is any evidence of that.

My argument is that the impact of the internet lies in the way in which it redefines the use of information and the way we access it, process it, use it, respond to it and our expectations of it and its availability.

This may not seem to be as significant as Carr’s rewiring or Greenfields neuroplasticity but it is, in my view, just as important.  Much of our decision making is based upon information.  Although some of our activity could be termed responses to stimuli, or indeed it might be instinctive, most of the stimuli to which we respond can in fact be defined as information – if not all of it.  The information that we obtain when crossing the road comes from our senses and sight and hearing but in many other of our activities we require information upon we which may deliberate and to which we respond in making decision about what we are going to do, buy and so on.

And paradigmatically different ways of information acquisition are going to change the way in which we use and respond to information.

Elizabeth Eisenstein argues this in considering the impact that the printing press had upon intellectual elites and the intellectual activity of the Early modern period.  The first information technology was an enabler – an agency of change – for the intellectuals of the Renaissance, the Reformation and  the Scientific Revolution.  And it had its own impact upon the intellectual elite of the English lawyers.[7]

I would suggest that in the digital information paradigm we are seeing similar although not identical, changes.  I am not talking about electronic land transfer and company registrations in and of themselves.  These in my view represent what could be called content layer changes.

There are other changes that are taking place that arise from some of the fundamental qualities that underline new digital communications technologies – and all communication technologies have these particular properties[8] or qualities underlying them and which attach to them; from the printing press through to the wireless through to the radio through to television and into the digital paradigm.  It is just that digital systems are so fundamentally different in the way in which they operate and in their pervasive nature that they usher in a new paradigm.[9]

But to get back to legal practice.  I mentioned land transfer transactions and company registration.  What in fact is happening with these transactions is that information technology de-personalises them. For the lawyer sitting in his or her office, the transaction takes place with a few mouse clicks and the entry of a few authentication codes and that’s an end to it.  The transaction is de-personalised in the sense that this manner of closing a transaction – as the Americans put it – or settling a transaction means that the gathering together of the legal representatives of the various players to exchange documents, check discharges of mortgage and the like no longer occurs.  These gatherings were important in terms of the culture of the pre-digital lawyer.  They developed a sense collegiality among the lawyers involved.  They allowed for the development of trusted relationships based upon continued personal contact and often upon the making of an undertaking coupled with a handshake.

Whether that vacuum arising from the use of technology has been filled with something else is not for me to say and I make the observation not with any sense of nostalgia but as an example of the way in which technology induces changes.

Consider email.  To discuss email in and of itself is to focus upon the content layer.  What I would like you to think about is the behavioural or changes in routine  enabled by email along with the quality of the communication that takes place.

But there is more to technological change than the way in which we modify our behaviours in the routine of practice.  Richard Susskind a British lawyer, technology expert and futurists has written four books – The Future of Law (1996), Transforming the Law (2000), The End of Lawyers (2008) and Tomorrow’s Lawyers (2013).  Susskind is of the view that the legal industry – note that he uses the word industry and not profession – is in an evolutionary state.  Technology, or a better designed process, is reducing the need for expensive, artisan trained lawyers.  In many cases by removing the lawyer from the value chain, cost goes down, quality goes up and service delivery time becomes faster.  This is because, among other things, the legal services market is being upended by new entrants who are offering legal inputs and legal products to law firms, legal departments and average citizens.  One example may be found in legal process outsourcing but there are many others.

Susskind argues that legal work is migrating from bespoke work[10]  to standardised[11]  to systemised[12]  to packaged[13]to commoditised.[14]  These changes are made possible by identifying recursive patterns in legal forms and judicial opinions which enables the use of process and technology to routinise and scale very cheap and very high quality solutions to the myriad of legal needs.

Susskind points out that clients do not want to pay a lot of money for their legal solution.  More significantly there is more money outside the shrinking quantity of bespoke legal work.  Susskind observes that the greatest profit making opportunities are lodged between the systemised and packaged parts of the continuum.  If an organisation can continuously innovate and create systemised or packaged solutions to legal issues and problems that can be sold over and over again to a large base of clients, the organisation can enjoy the prospect of making money while you sleep.[15]

This constant innovation approach is one of the challenges identified by Susskind which he describes the “more for less” challenge.[16]  Liberalisation is another – the opening up of legal work beyond traditionally educated and qualified law practitioners who are protected by legislation and who hold the monopoly on legal work.  These changes may be found in our present law practitioners’ legislation along with current changes to legal aid.  Although this movement is not worldwide Susskind anticipates that when such liberalisation gives rise to legal businesses and legal services that better meet clients needs and a growing “more for less” challenge then this will have a ripple effect around the world.

But it is in the field of information technology that Susskind has interesting things to say at least from my perspective.  Although many lawyers have computer equipment in their offices generally the legal profession, according to Susskind, has not been swift to embrace new systems or, if they have adopted them, to utilise the maximum potential of them.  Many lawyers consider that IT is over hyped but few will have heard of Moore’s Law, suggesting that every two years or so the processing power of computers would double and its cost cut in half.  The fact of the matter is it is now foreseeable that the average desk top machine will have more processing power than all of humanity combined.  It seems to be strange that it might take something like that to force lawyers to rethink some of their working practices.

Susskind considers it inconceivable that information technology, which is radically altering many aspects of our economy and society, may comfortably be ignored by the legal profession who may consider that legal work will be exempt from any change. That is a fatal view for a profession whose business is information. The fact of the matter is that information technology – a slave to the property of continuing disruptive change – enables participation via Web 2.0 where users become providers, readers become authors and recipients become participants and all users can contribute.  New ways of finding information and producing it, collaborating with one another whether as bloggers, users of social networks or contributors to shared online resources such as Wikipedia and Youtube are developing.  And because of continuing disruptive change there is no finishing line for IT or the internet.  Examples of such change may be seen in the fact that 3 years ago very few people had heard of Twitter and 7 years ago Facebook wasn’t on the map.  The problem with resisting twitter and new forms of communication in a profession where information is what we deal with is what Susskind calls “irrational rejectionism” – the dogmatic and visceral dismissal of a technology with which the sceptic has no direct personal experience.

As has so often been said and in science fiction movies – resistance is futile.  We need to be open minded as lawyers because we are living in an era of un-precedented technological change and the fact of the matter is not so much a question of automating but whether or not lawyers can innovate and practice law in ways which could not have been done in the past.

I have just outlined a few issues that impact upon lawyers and the legal profession and the way in which technology presents challenges.  I could go on and consider the issue of legal education because if the profession is going to change then the training systems for the new professionals are going to have to be responsive to those changes as well.  But that’s another story.

[1] Marshall McLuhan Understanding Media: The Extensions of Man  Critical Edition W Terrence Gordon (ed)(Gingko Press, Berkeley Ca 2003)

[2] Aeromotive v Page (High Court, Hamilton CP 31/99 16 May 2002 Harrison J) For discussion see David Harvey Internet.Law.NZ 3rd ed. (Wellington, LexisNexis, 2011) p 512 et seq

[3] (Atlantic Books, London 2010). See alson Nicholas Car “Is Google Making Us Stupid” Atlantic Magazine 1 July 2008  (last accessed 31 May 2013)

[4] See especially Susan Greenfield “Living On-line is Changing Our Brains” New Scientist, 3 August 2011 (last accessed 31 May 2013) For this and for her assertions of “internet addiction” she has she has been criticised by Dr. Ben Goldacre for claiming that technology has adverse effects on the human brain, without having published any research, and retracting some claims when challenged. Goldacre suggested that “A scientist with enduring concerns about a serious widespread risk would normally set out their concerns clearly, to other scientists, in a scientific paper”  Ben Goldacre, “Serious Claims Belong in a Serious Scientific Paper” The Guardian 21 October 2011 (last accessed 31 May 2013)


[5] Untangling the Web: What the Internet is Doing to You  (Faber, London 2013). Presentation by Aleks Krotoski at the Writers and Readers Festival, Auckland 19 May 2013. Personal discussion between the author and Aleks Krotoski 19 May 2013.

[6] Sometimes referred to as “The Frankenstein Complex”

[7] See David Harvey The Law Emprynted and Englysshed: The Printing Press as an Agent of Change in Law and Legal Culture 1475 – 1642 (Unpublished PhD Thesis, Auckland University 2012) (last accessed 31 May 2013)

[8] Eisenstein identified 6 qualities that print technology possessed that differentiated it from the scribal form of written communication of information. These are

a) dissemination

b) standardisation

c) reorganization

d) data collection

e) fixity and preservation

f) amplification and reinforcement.

See Elizabeth Eisenstein The Printing Press as an Agent of Change One Volume(Cambridge University Press, Cambridge 1979) esp. At Chapter 2 pp 71 – 126

[9] See above for some of the qualities of digital information technologies.

[10] Courtroom practice

[11] Common form documents for a merger

[12] Document assembly for estate planning

[13] A turnkey regulatory compliance programme

[14] Any IT based legal product that is undifferentiated in a market with many competitors

[15] For a discussion of challenges facing the legal profession, including a consideration of Susskind’s work see William D. Henderson “A Blueprint for Change (2013) 40 Pepp. L Rev 461.

[16] For discussion see Richard Susskind Tomorrow’s Lawyers (Oxford, Oxford, 2013) esp at p 10 et seq.