Monday, 14 January 2013

Lost in Translation

Deputy Mike Higgins is calling for changes to legislation which has been written in French (as one of the Island's official languages) to bring it into English, to make it easier for people to understand the laws. I have a degree of sympathy with translations being available, especially of significant and much used parts of the law - to do this for older laws, which may have fallen into disuse (and some have), would surely be a waste of time.

But he wants the laws re-enacted in English, so that the translation has authority in its own right, and lawyers cannot go behind it to the French source. This has problems in itself, but more of that later.

Before that I would like to note how English has problems of its own, as an earlier proposition in the States agenda demonstrates. This is Alan Maclean's proposition to create a "shadow board" for Tourism, and a very shadowy affair it is too. It is a masterpiece of how slippery the English language can be. Just note, for example, in this paragraph how the phrase "oversee strategy" is slipped in:

Jersey Tourism will, in future, benefit from the appointment of a Shadow Board, drawn from the private sector, to oversee strategy and the day to day operation of the Island's destination marketing programme in the UK, Continental Europe and other international markets.

If you think that means they wouldn't actually be more than a kind of old fashioned "Brains Trust", you would be right - apart from the rebranding (new name, does that mean new logo?), it is to act in an "advisory" role. It supplies advice - very good advice, I am sure, but it doesn't do more than that. It doesn't supervise, and presumably the Minister can ignore the advice, or take pieces of it and reject others, as he likes:

"Visit Jersey" is the working title of the new organisation. It will remain within EDD with a revised organisational and reporting model that includes the immediate appointment of a Shadow Board who would act in an advisory rather than supervisory capacity. The Visit Jersey Shadow Board will be led by a Chairman who, along with Shadow Board members, will be appointed by the Minister for Economic Development in a process overseen by the Appointments Commission.

A Shadow Board will be appointed, following the Nolan Principles, for a 3 year term with the option to extend for one further 3 year period. The Shadow Board will meet on a monthly basis. The Board will comprise the following members -
· A Chairman who would be independent of both Government and the Industry. This post would be suited to a candidate with a broad business experience at senior level.
· The Chief Executive of Visit Jersey whose presence will provide the link between the Board and the organisation.
· Economic Development Department representation - the accounting officer for the Department or his nominee with specific responsibility for managing the relationship between EDD and Visit Jersey.
· Up to a maximum of 5 non-executive directors.

And what would this do? It's so obscure that it makes you wonder why Mike Higgins really wants legislation in English at all. Latin would seem to be more precise than this.

· In the first instance, to define the optimum operational and governance structure and make a recommendation to the Minister for Economic Development to implement changes as necessary.
· To strengthen governance and good practice in all areas of Tourism/Visit Jersey operations.
· To challenge and support the executive teams
· To develop strategy and business operations and ensure they are subject to rigorous independent commercial challenge in a manner which enhances governance at a pivotal time.
· To ensure the optimum performance of the sector in delivering cost-effective operational solutions for the development of tourism in Jersey.
· To undertake any other appropriate roles as agreed with the Minister for Economic Development.

How does one go about defining the "optimum operational and governance structure"? What on earth does "optimum" mean in this circumstance? It is easy to define a sub-optimal structure, one with all kinds of problems and delays, where paperwork is perhaps shuffled around, where - as I believe with the current system - online reservations at a hotel can be made through a central system, but only canceled by contacting the hotel themselves. But it is very difficult to determine what "optimum" is, and the lack of any mention of benchmarking makes this extremely woolly.

The other terms of reference are equally vague. There may be meat in there, as for instance, "subject to rigorous independent commercial challenge", but it is not made exactly plain how one does that, or even what it means. In fact, the only mention I've ever heard of this phrase is in this proposition. What is the opposite? "lax independent commercial challenge"? We can see hear that words are being used without much consideration of their sense, but merely how they sound. It would be suitable for an advertisement, where one expects this kind of dubious verbosity, but it is not a good advertisement for the shadow board.

I have come across - with a financial modeling agency - the shorter term "independent commercial challenge", which in this context means an "independent commercial challenge to your models, identifying weak assumptions and simplistic or overly complex calculation methodologies." Staffordshire County Council also has an audit committee which is tasked (among other matters) with looking at procurement and "providing independent commercial challenge to ensure that correct contract award decisions are made."

In both cases, this makes some sense. A government or business produces a financial model, but it may be based on bad assumptions, and an independent commercial challenge means testing those assumptions. Procurement or other contracts awarded may in fact not be the best ones; a second eye from audit checks that this is so. But what it means to provide  independent commercial challenge  "in a manner which enhances governance" is anyone's guess. 

But there is one part of the proposition which is suddenly crystal clear:

The remuneration for the Chairman is £12,500 per annum. The non-executive directors will receive an honorarium of £5,000 per annum. Expenses of the Board members will also be payable.

This means 1 x £12,500 + 5 x £5,000 = £37,500, which is small change in terms of States budgets, although we have no way of knowing what "expenses" will entail. Trips to other jurisdictions on fact finding missions, perhaps? And remember they only meet once a month, which is a nice little earner, not too onerous, for someone.

My guess is that this proposition will be passed. It's not a threatening piece of legislation; it is a low cost private / public partnership, and it is couched in language which has a degree of plausibility; it sounds good, as if it is setting out something positive, even if it is in fact so vague as to be virtually incomprehensible. It is only when you try and unpick what the phrases actually mean that you realise they don't really say anything concrete at all.

But to return to the slippery use of English in Mike Higgins proposition - part B. Part A deals with providing a document detailing what are the roles, duties and responsibilities of the Connétable and the other elected officers of the Parish. There is apparently a handbook on the way, according to the Comité des Connétables which will do this:

The content will have to be reviewed by the Law Officers' Department to ensure accuracy, but could then be made generally available, for example on the Parish website. However, in view of the work required, it is unlikely this will be completed within 6 months.

Let us hope that apart from any adjustments by the lawyers, it has been written by someone with sufficient command of the English language so that it is accessible to the average reader, and makes clear older terms that might be obscure.

What is needed is someone with an ear for language and clarity, like G.R. Balleine, who could write accessible and readable prose. For example, here are a few details from his useful "Jersey Words and Titles" (although the law has changed in places - the Procurer now takes the Constable's place if he is ill or absent):

PROCUREUR DU BIEN PUBLIC. A trustee, elected by the Parish Assembly, whose main duty is to pass deeds or contracts, to conduct parish law-suits, and to keep a watchful eye on the Constable's finance.

CENTENIERS. The second rank in the Honorary Parochial Police. Originally, like Anglo-Saxon 'Hundred-men', they were responsible for the behaviour of about a hundred families. Now they are elected for three years by the rate-payers of the parish to be the Constable's chief assistants in all his duties. If the Constable is ill or absent, the senior Centenier takes his place as Chef de Police.

PARISH ASSEMBLY. Assemblee Paroissiale. A meeting of all Ratepayers in a parish assessed above a certain figure. The Rector, Churchwardens, Almoners, members of the Honorary Police, and any Jurats or Crown Officers living in the parish are members ex officio. The Assembly fixes the rate, appoints minor officials, deals with matters of roads, drainage, lighting, and much of the business transacted in England by a Borough Council. The Constable presides.

PRINCIPAUX. Ratepayers assessed above a certain figure, and therefore entitled to attend the Parish Assembly. The figure has varied at different times and in different parishes.

But Mike Higgins wants more than mere translation:

(b) to further request the Chief Minister, in conjunction with the Comité des Connétables, to take the necessary steps to bring forward for approval by the Assembly new legislation in English to consolidate by re-enactment all existing legislation, and to codify customary provisions where necessary, in relation to the roles and responsibilities of the parish officials and bodies referred to in paragraph (a)

As the Comité des Connétables notes:

Part (b) of the proposition requires the re-enactment of all legislation currently in the French language which relates to the Parishes. It does not ask for a translation of the legislation but for 're-enactment', which will require the States to debate each piece of legislation and the Privy Council to approve all adopted Laws

And why, ask the Comité des Connétables, does he just single out legislation in French that relates to the Connétables? "No reason is given for requiring such extensive work in relation to only the Parish and its officers and not to States departments; nor why only legislation relating to the Parishes must be re-enacted when there are many other pieces of legislation still in the French language."

Actually, it is not hard to guess the reason - this is relating to the forthcoming referendum on the position of the Constables in the States, but it doesn't say as such. That's also why he wants Part A - the handbook available. It is grist to the mill of those who want the Constables out of the States, because one thing that would be apparent would be that there's probably a lot of legislation which may need to be reviewed and unpicked, which is in French.

And as a result, Mike Higgins misses the most important reason for translation (and not re-enactment) which is to help people engaged in litigation to understand the law. One instance:


This is completely in French with no translation on the website. This means that anyone who has a case brought against them under criminal law (rather than statute law) and needs to know  rules of procedure - for instance if they can be elected to have a trial by jury - may not be aware of the provisions for that.

It also has wider import, for example, exemptions from jury service are contained in the Loi (1864) réglant la procédure criminelle.

That is detailed in English on

But this is a significant law, and there should be a translation of all of it. That's where I part company from Deputy Higgins. He seems focused on part of the law which will probably be covered as required by the Handbook prepared by the Constable's committee, and not on parts of the law which are in French, for which there should be a translation, readily available, online.

It is a question of prioritising, and to translate laws that have a significant and regular impact on the people of Jersey is a good idea; to set out on a blanket programme of translation, or more costly re-enactment, is really a non-starter. Obviously a translation may not be perfect, but at least it provides a handle for people to understand the law. There may be terms which do not have an exact correlate in English, and may have to be retained, but the same would apply to a re-enactment. A more focused programme of translation, prioritising, is something that a modern justice system should have. Unfortunately, it is not what Deputy Higgins has in mind.


Tom Gruchy said...

The peoples of the Channel Islands have been calling for a clear and understandable statement of their laws ever since 1204.
Translation from a foreign langiage is just part of the problem.
It was part of the reason for the revolt of 1769 which resulted in the Jersey Reform Day now officially recognised and the Code of Jersey laws of 1771.
Former Solicitor-General Stephanie Nichol proposed to write an Encyclopaedia of Jersey law on her retirement but it never appeared. The Jersey law school is a step in the right direction but is intended primarily to support the monopoly enjoyed by the exclusive and elitist 250 or so Jersey lawyers.
The sooner that monopoly is ended and the courts opened up to every tom dick and harry with a law degree the better...the translation of the Constables' rule book is just a small part of the greater problem but Deputy Higgins should be supported.

Anonymous said...

I don't think Deputy Higgins has a wish for old laws which are inneffective to be translated necessarily from which I heard him say on the news report yesterday, just that these old, now irrelevant laws be looked and repealed.