In this article, first published on the Halsbury's Law Exchange blog, Matthew Seys-Llewellyn looks at a recent debate over the use of personal pronouns and when a "he" is also a "she" as a matter of law

Until the discovery of telepathy (or perhaps some sort of machine equivalent), we must rely on language as our way of conveying unambiguous meaning to each other. That need is particularly pressing when it comes to the law.

So, it was refreshing to see a discussion on language in the House of Lords recently, when Lord Scott invited a debate on personal pronouns and their semantic infelicities in Acts and statutory instruments. Or, in plain English, when is a "he" also a "she" as a matter of law?

This may not sound particularly confusing, but, because judges have always had to interpret the law as written (unless there is a compelling reason not to), it is important to remove as much ambiguity from the finished Act as possible.

As the separation of powers idea took root in the English constitution, a nascent constitutional monarchy passed the Bill of Rights Act 1689, which stated that "speech and debates or proceedings in Parliament ought not to be impeached or questioned in any court or place out of Parliament". This is the root of the immunity from suit covering MPs who says something that might otherwise be libellous or illegal (such as when John Hemming broke the injunction against naming Ryan Giggs). It meant that judges felt unable to consider the debates surrounding the written law when construing the meaning of any ambiguous clause because they would be second guessing the legislature. Judges, therefore, had to rely on the literal meaning of words in statute (unless that would be absurd), and it would take the House of Lords decision in Pepper v Hart [1995] to permit examination of Hansard (provided the necessary threshold was reached).

Similarly, the US Supreme Court regularly considers the historical context in which Acts were passed as an aid to interpretation. For instance in Grupo Mexicano v Alliance Bond Fund [1999], the US Supreme Court rejected the notion that US courts had any inherent power to issue worldwide injunctions (like their British counterparts) on the basis that the Judiciary Act of 1789 would be the logical gateway, but that the 'Mareva' injunction was essentially an invention of Lord Denning in the mid-twentieth century.

Moving away from the words on the page can lead to some unexpected results, of course. Consider DPP v Bull [1995] for example; the case which found that the phrase "common prostitute" could not mean a male sex worker because Parliament in 1959 was attempting to limit female prostitution by passing the Street Offences Act. You can either regard this as the law being an ass, or rather judges being very careful about the ambit of their role.

Considering the question of pronouns, the most frequent issues have been dealt with in the Interpretation Act 1978, so that the reference to "he" refers to "she" as well, unless the statute in question provides for a clear alternative. It also defines other useful things such as what happens when a repeal act is repealed (s 15) and measurements of time and distance, but it is this surprising failure to refer to the existence of the female sex that always attracts the most comment in law schools and academia more widely.

Lord Scott's point is that this approach saves words and aids clarity, but means it only works one way, so that a reference to "she" (intended as being pro-feminist, but gender neutral), would run contrary to Parliament's intention. I cannot agree that a rule of convenience to save words could really work that way, at least not without begging the question about how far "he" actually works as a gender-neutral way of saying "the person in question". This happens because – as the eminent linguist Lord Quirk rather dryly noted in his response to Lord Scott – "English lacks an epicene third person pronoun that can have anaphoric reference to an ungendered antecedent – that is putting it in plain language".

Lord Mackay was similarly unconvinced about the logic of "he" as the solution for gender neutrality and raised this wider point about clarity: "the cardinal principle is that the instrument should be reasonably clear and written in language that ordinary people would normally use in common speech… [t]o make it more difficult by using rather contrived constructions seems to be contrary to the best use of the statute book".

In credit to successive governments, there has been an increasing focus on 'good law' and making legislation more accessible to ordinary citizens by avoiding legal shorthand, and this is certainly to be applauded.

However, there still seems some room for improvement in how we think and write about expressing the substance of legal rights and prohibitions. At the very least, as Lord Templeman famously suggested in Street v Mountford [1985], we should simply remember that a "five pronged implement for manual digging" is a fork, whatever the manufacturer chooses to call it.

Matthew Seys-Llewellyn is a contributor to the Halsbury's Law Exchange blog – click here to follow Matthew on Twitter and click here to follow the Halsbury's Law Exchange blog.