How do we put together the components of legislative sentences?
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|Course:||LGST 551: Introduction to Legislative Drafting (OCW)|
|Book:||Section 3: How do we put together the components of legislative sentences?|
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|Date:||Thursday, 22 March 2018, 2:04 AM MDT|
Module 2: Section 3
In this Section we look in detail at ways of selecting and putting together the components of legislative sentences, building on the first principles outlined in the Module 1, Section 3 – Why do we draft as we do in parliamentary systems? We look at the three main components found in legislative sentences: the principal subject, the principal predicate and various kinds of sentence modifiers. The combination of these components produces the legislative sentence.
By the end of this Section, you should be able to do the following:
This Section is divided into three subsections. Each one is organised in terms of a series of questions:
The sentence components are treated separately to make their study easier. Of course, in writing a particular sentence, you cannot separate these features as your decision in relation to one necessarily influences your decisions on the others. You may find it easier to break your study at the end of each subsection. If you do, remind yourself quickly of what you have learned in the earlier subsection before starting on the next.
You will learn a good deal by careful study of the examples. Make sure that you understand precisely how they illustrate the point made in the accompanying text. This Section contains a large number of exercises. Time spent both on completing them and then evaluating the suggested answers will contribute to your understanding of and ability to use the particular drafting techniques.
This is one of the most important sections in the Materials. Almost everything learned here is called into use when drafting legislation. Drafting legislation is made easier by having a sound grasp of the approaches and techniques examined. It will also provide an opportunity to make them part of your drafting routine. You should try to make yourself thoroughly conversant with every item and to have a clear understanding of what is called for.
Module 2: Section 3
Before considering the principal subject, it will be helpful to recall the following elements of grammar discussed in Section 2 of this Module:
Module 2: Section 3
The main body of provisions in a legislative text is concerned to influence human activity and affairs. It has to be directed to those who have the legal capability to adjust their activities or affairs as the provisions intend. Consequently:
Typically the subject of a sentence is a noun or pronoun that describes or refers to a precise legal person or class of legal persons.
Module 2: Section 3
Many provisions simultaneously affect two categories of persons:
The provisions can be written having either of these as the grammatical subject.
The Minister may appoint any number of film censors that the Minister considers expedient.
Any number of film censors are to be appointed as the Minister considers expedient.
In the second version, the Minister’s power of appointment has to be implied.
It is a matter of judgment in each case as to which to choose. But the following legal persons have a good claim to be made the grammatical subject of the sentence:
Each of these is discussed next.
Persons whose actions can be described by an active verb
A sentence is generally more effective if expressed in the active voice, rather than in the passive voice. In a choice between two clearly identifiable legal persons, select as the subject the person whose required conduct can be written in the active voice.
Compare the following. The second, in the active voice, is a more direct statement of the same rule.
If a person is released on bail on the authority of a police officer, the nearest magistrate must be informed of the release by that police officer as soon as reasonably practicable.
If a person is released on bail on the authority of a police officer, the police officer must inform the nearest magistrate of the release as soon as reasonably practicable.
Persons responsible for taking action
The sensible focus of a sentence is the person who has to take the initiative under the provision.
Compare the following versions of the same provision. The second one directs the provision to the person who is to take the action it authorizes.
A person who is observed by a police officer committing a summary offence is liable to be arrested by the officer.
A police officer may arrest a person whom the officer observes committing a summary offence.
Recipient of a power, duty or function
The person who has the function of dealing with matters of the kind mentioned in the sentence is likely to be a suitable subject.
In a legislative text that requires second-hand car dealers to hold a licence, sentences concerned with the issue of the licence should have the licensing authority as the grammatical subject.
If the aim of the sentence is to confer a function implementing an aspect of the legislative scheme, the person or persons who are to perform the function are likely to be the appropriate grammatical subject. It is generally unnecessary, and may not be possible, to identify the persons who may be affected sufficiently precisely for them to be made the grammatical subject.
A provision conferring a power to search all aircraft landing in the country for drugs should be directed towards those who will use the power, rather than to the legal persons whose aircraft could be affected.
In provisions that determine the range and limits of the functions of specified persons or of those who derive their powers from them, sentences can be expected to focus on those persons, who should be considered as suitable grammatical subjects.
A Bill regulating the prison system is concerned mainly with the extent and the exercise of the authority to detain individuals. Though the provisions may be intended to protect those in detention, most sentences will be directed to the officials of the system whose functions are being regulated.
Persons whose activities are curtailed or regulated.
Although the sentence may create a provision for the benefit of the general public or some class of persons, the grammatical subject should refer to those who have to govern their conduct by the provision rather than its beneficiaries.
In legislation relating to prisons, sentences prescribing the responsibilities of prisoners will typically make those persons the grammatical subject.
Of course, the above are guidelines only. The decision as to the subject must be dictated by the needs of the particular sentence and the context of the sentences that surround it.
Module 2: Section 3
You should keep in mind the following guideline when deciding how to describe the principal subject:
Use the singular so that the provision is seen to apply to each legal person
If the sentence has alternative subjects, each should be expressed in the singular.
A trustee or receiver must not receive remuneration for providing a service under this Act.
Consider the statutory context in which the term is to be used.
Since a legislative sentence is construed in the context of the language of the legislative text overall, and in particular the surrounding sentences:
(2) An executive officer ceasing to hold office under subsection (1) is not entitled to receive superannuation under this Act.
The same result can be achieved by using the definite article for the subject of subsection (2):
Consider the legal context in which the term is to be used.
The general law contains provisions that apply automatically to particular categories of legal persons. For example, it imposes privileges or disabilities upon certain classes of persons, as in the case of children in respect of criminal prosecutions or the mentally incompetent in respect of certain kinds of civil transactions.
The term for the subject specifically does not need to exclude these persons from the sentence; that occurs by operation of law.
Use terms that clearly identify the legal person who is the subject
Legislative counsel express the subject in a wide variety of ways. The form of words that is most appropriate typically depends upon the scope of the provision. As you will have recognised, some of the following devices are interchangeable. Choose the term to describe the subject that best suits the structure of the sentence.
a provision of universal application
In a sentence that applies to everyone, use:
Note: “person” is commonly given an extended meaning to cover non-human legal persons, such as corporations, (see section 29 of the model Interpretation Act in the Resource Materials).
Confirm whether the Interpretation Act in your jurisdiction has a definition of “person”.
a provision directed to a class of persons
A sentence that applies to everyone belonging to a particular class of persons normally needs a precise noun (in many cases, one that has a recognised legal meaning).
“court” (to refer to judicial officers); “judge”, “police officer”, “owner”, “trustee”.
a provision directed to a particular office-holder
In a sentence applying to a specific office-holder, use the title or name given to the office or to the body.
a provision applying to limited categories
In a sentence that applies to a limited group of persons, or to specific members of a class, who share a common characteristic, use the relevant universal or class term with the addition of an appropriate modification.
a convicted person (= adjective added)
a police officer above the rank of inspector (= prepositional phrase added)
a trustee acting through an agent (= participial phrase added)
a person who owns a dog (= relative clause added).
a general provision applying with exceptions
In a sentence that applies to everyone, or to everyone in a class, except for specific persons, use the relevant universal or class term with the addition of the appropriate qualification.
Any person other than a public officer
A trustee, except a trust corporation
a provision containing the legal person in the context clause
If the principal clause applies to a person mentioned in an earlier context clause in the same sentence, consider using a pronoun to refer back, but:
When the court has reason to believe that the accused lacks mental capacity so as to be incapable of making a defence, it must hold an inquiry into that matter.
These devices are dealt with in detail in LGST 555, Module 1, Section 4 (How do we draft interpretation provisions?) and Section 6 (When and how do we draft application provisions?).
Module 2: Section 3
A declaratory sentence may have a subject that is not a legal person, but an impersonal noun. These sentences generally make statements about the law, rather than prescribing rules that direct behaviour. The subject of the sentence is the matter to which the statement attaches legal effects or consequences. It may be a thing, a legal term or a statutory feature.
We saw some examples of declaratory sentences in Section 2 of this Module under the heading “How do legislative counsel write particular kinds of sentences”. Review those again.
When composing a sentence to make a legal statement, choose as the main subject the principal matter to which the legal statement relates.
Legal statements that have general effect
If the rule in the sentence has a general legal effect that is to be universally recognised, no particular persons are specially affected. These provisions are commonly used for stipulating procedures that are to be followed or their legal consequences.
An original certificate that is signed by the maker and that complies in other respects with this section may be used in a trial or enquiry as prima facie evidence of the facts and opinions stated in it.
When the legal person is obvious
An action or activity can be made the subject if:
This is a useful device for providing for continuity between sentences in the same section, without repeating too many words. But make sure that there is no ambiguity as to the legal persons whose action or activity is referred to.
The highlighted words connect the sentence with the preceding one, and avoid the repetition of the legal person comprising its subject.
When the provision has universal application
An action or activity may also be made the subject if it must or may be performed by anyone falling within the terms of the rule. This too may be used in a sentence that is one of a series of sentences (for example, in a section), when the action or activity is elaborated upon in the other sentences. The full context removes doubt as to who may be affected by the sentence.
Gaming is lawful if, and only if, it is conducted in accordance with the conditions specified in this Act.
This sentence lays the foundations for an Act that provides a complete set of conditions that determine when gaming is lawful. It is clearly of universal application, though later sentences impose conditions that determine when particular persons may rely upon the authorisation.
Sentences containing statements that explain how written legal rules or expressions are to be used or interpreted have universal force, and are not focused on particular persons. The subject is the term to which the definition relates.
In this Act, [the expression] "animal" does not include a domesticated animal.
Application or referential provisions
Sentences stating cases to which specific parts of the written law are to be applied or are linked are intended to be given effect by whoever uses the legislation. The subject is the term used to refer to the relevant part.
This Part applies only to legal practitioners not holding a current practising certificate.
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Module 2: Section 3
Before considering the principal predicate it will be helpful to recall the following elements of grammar discussed in Section 2 of this Module:
A person under the age of 16 years must not drive a motor vehicle.
The magistrate’s court, on a remand, may admit the accused person to bail.
The person receiving a majority of the votes cast in the election is elected.
A person under the age of 16 years may not be sentenced to imprisonment.
Every magistrate is a commissioner of oaths.
A member of the council who is declared insolvent ceases to hold office.
Module 2: Section 3
Decide on the purpose of the rule in the sentence by considering how the principal subject’s behaviour is to be affected or whether a statement of the law is what is required.
Answers to these kinds of questions put you in a position:
Module 2: Section 3
Keep the following considerations in mind when formulating the principal predicate:
These considerations are discussed below.
Legislation should always be speaking.
Legislation generally applies in the present to circumstances as they happen rather than to those existing at the time when it was originally written. This feature of legislation is often reflected in Interpretation Acts (see section 20 of the model Interpretation Act in the Resource Materials).
Compose sentences to be read as applying to actions or activities as they occur from time to time. This consideration particularly affects dependent clauses which set the context in which the principal predicate operates.
We could write:
A person who has driven a motor vehicle without holding a valid driving licence has committed [or has been guilty of] an offence.
A person who shall drive a motor vehicle without holding a valid driving licence shall commit [or shall be guilty of] an offence.
However, a context clause should be in the present tense when the requirements in the principal predicate are to take effect immediately as the events described in the clause occur.
A person who drives a motor vehicle without holding a valid driving licence commits [or is guilty of] an offence.
This states actively what the subject is to do or not do. Sentences that reverse this order (object, verb, subject) state the effect on the subject passively. They are less favoured for several reasons.
Readers of legislative texts are looking for the legal person who is responsible for taking action; the passive voice puts this person last and is more cumbersome since an auxiliary verb (from the verb “to be") has to be added (for example, “may be ordered").
In a passive construction, it is easy to miss who is responsible for taking the action described in the verb. This cannot happen when the person is the subject of the sentence. A sentence in the passive voice has to be clarified by adding in the person in an extra phrase beginning with “by".
A person who is diagnosed as suffering from the illness must be given a copy of the diagnosis on request.
Who does the diagnosis? Who is to give the copy and to whom is the request to be made? A sentence using the active voice would answer these questions:
If a medical practitioner diagnoses a person as suffering from the illness, the practitioner must give a copy of the diagnosis to the person when the person so requests.
In section 12(1), there shall be added, after the word “proceedings", the words “under Section 125 of the Companies Act".
The grammatical subject is “there”. It is false as it has no substance. A simple command is shorter and more effective:
In section 12(1), "under section 125 of the Companies Act" is added after ”proceedings”.
Operating a motor vehicle on a pedestrian walkway is prohibited.
A person arrested under a warrant of arrest must be taken without unnecessary delay before a magistrate’s court.
Property deposited with the building authority and not claimed within 30 days after its deposit is forfeited to the building authority.
The passive voice avoids having to repeat "a person who operates a motorcycle in the park”. Once it is clear who is responsible, the focus should be on the motorcycle. This also helps produce cohesive sentences.
Multiple principal subjects and predicates in the same sentence are confusing.
Readers can be confused by sentences that contain more than one subject when each of them is followed by its own predicate. If you need to confer distinct functions on different subjects, deal with each case in a new sentence.
A police officer executing a warrant of arrest must notify the person to be arrested of its substance, and a person arrested under a warrant of arrest must be taken without unnecessary delay before a magistrate’s court.
This sentence contains two distinct rules; the second appears to have wider application (extending to arrests made by other persons in addition to police officers). Separate sentences would ensure that the second is not to be construed as limited to the first case.
However, confusion is less likely in a sentence that:
A director, a manager and an employee of a company must:
A police officer executing a warrant to arrest a person must notify the person of its substance; the person must be taken without unnecessary delay before a magistrate’s court.
Module 2: Section 3
The verb is a critical element in describing what is required of the principal subject of the sentence. To select the verb, start by deciding precisely what action or result is required and the way that the subject is to be affected. It may help to ask questions such as the following:
A police officer may, without a warrant, arrest and detain, a person whom the officer reasonably suspects to have committed an indictable offence.
The predicate contains two powers; both are available at all times to police officers. The first, “arrest”, involves a single act; the second, “detain”, involves action of a continuing nature.
To signify an arrest, a police officer must touch or restrain the body of the person being arrested, unless that person submits to the custody by word or by action.
This predicate describes, in the form of duties, how a police officer indicates the making of an arrest.
Module 2: Section 3
The nature of the action described in the principal predicate is a critical element. It indicates whether a legal person is to perform the action or not or whether they have a choice about performing it. The nature of the action can be indicated by using a compound verb with an auxiliary. The choice of the auxiliary is particularly important in differentiating the nature of the action.
The auxiliaries most often used are:
Reserve these auxiliaries for use in the principal predicate only. They are generally recognised as words of command and authorisation (although there is ambiguity about “shall”). This may be reinforced by the meanings attached by your Interpretation Act to “shall” and “may”.
Another, wider, definition of these terms is to be found in section 24 of the model Interpretation Act in the Resource Materials.
Confirm whether the Interpretation Act in your jurisdiction contains definitions of these terms.
Legislative Counsel now recognise that these terms are not necessarily the most suitable for sentences that do not command or authorise. They dispense with an auxiliary or use other auxiliaries in the principal predicate to state or declare a legal position or consequence. The following are now in common use in some jurisdictions as auxiliary to other verbs:
Not all legislative provisions state actions in relation to legal subjects. Some of them:
These provisions state a legal result after some occurrence or action, or the legal position that is created by the provision. The language of command or permission is inappropriate for making a statement.
A member of the Council ceases to be a member if convicted of an offence punishable by imprisonment.
A fund, to be known as the Motor Accidents Fund, is established by this Act.
The functions of the Benefits Authority are as prescribed in this section.
This section has effect despite the rules against hearsay.
Module 2: Section 3
The choice of auxiliary is dictated by the nature of action to be ascribed to the subject. Different auxiliaries prescribe different responses from the subject, and therefore have different impacts. Accordingly, different auxiliaries may be needed to provide for the following:
Each of these is discussed in turn below.
If the sentence is to require the subject to act or not to act, with some adverse legal consequence for failure, the predicate must create an unqualified duty. Legislative counsel have conventionally used “shall” for this purpose. However, some jurisdictions have discontinued the use of “shall” for this purpose, largely because of the ambiguity that has developed in this term. “Must” is now frequently (although not always) uses as an alternative.
“Shall” or “Must”?
Driedger has argued that “shall” creates a duty while “must” merely asserts the existence of a duty. However, he concedes that a provision using “must” would almost certainly be construed by a court as the source of the obligation. For that reason, he advocated using “must” only if no penal consequences follow on a breach of the duty.
Driedger gives the following as an example of where "must" might be suitable:
An agreement must contain the prescribed particulars.
These duties are sometimes referred to as “soft obligations”, largely because they are ancillary to some other obligation and do not themselves attract a legal sanction for non-compliance.
Driedger’s view is not universally held (see, for example the article on Expressing Obligations and Prohibitions in the Canadian drafting manual, Legistics). The choice between “shall” and “must” has become a matter of differing drafting practices in different jurisdictions. The terms are increasingly seen as interchangeable. At the same time, take care not to use both in the same instrument, as this may suggest differences in meaning.
Is “must” now a permitted alternative or a required replacement for “shall” in your jurisdiction? Or is “shall” still the term in favour to impose an unqualified duty or prohibition?
If the duty is to refrain from acting in a prescribed way, under a threat of a penalty, most Legislative counsel use “shall not” (or “must not”). This conventionally is the strongest form of prohibition.
But could such a command equally well be given by using “may not”? Does this not deny a person the right to act?
A person may not carry on a business of dealing in second-hand motor vehicles without a dealer’s licence.
On its face, this auxiliary has the same effect as an unqualified duty. But strictly, the provision is negativing or denying the holding of a power, permission or right, rather than commanding that the person refrain from doing the act. Accordingly “may not” is more useful to emphasise that some power, permission or right provided for by law is withdrawn.
There are cases when a term other than “shall” or “must” can be used to express a mandatory requirement. Verb phrases like “is required to” or “is to” also create obligations. These phrases can be used when the context of a provision suggests that “shall” or “must” is too strong because no penal sanction is involved to enforce the obligation.
The Minister is to establish the form of notice.
The inspector is required to give prior notice of any inspection under the Act.
A person who is exempted under section 5 is not required to notify the Registrar of any change in personal information.
If the sentence is to create a universal prohibition (one that affects everyone or everyone in a specific class), the conventional practice is to negative the person rather than the verb: “No person shall ......”. This is both more emphatic and, strictly, the correct converse of the rule that requires everyone to do something.
Of the following, the first version makes the stronger impact:
No person shall drop litter in a public place.
A person shall not drop litter in a public place.
Can we use “no person must .....” instead? In fact, this does not work in quite the same way. Strictly, it is a statement that no one is under an obligation to act in the prescribed way. That is not the same as commanding persons not to act in that way.
No person must walk on the grass in a public park.
This means that no one is under a duty to walk on the grass, although they may if they wish! This is precisely what is not required.
The conventional practice is:
In a sentence that gives the subject a power or permission to act or not to act, the predicate must confer the necessary authority. Although power and permission are distinct concepts, they are often dealt with by the same auxiliary “may”.
A power is an authority to do something that would otherwise be illegal or tortious or legally ineffectual. It states the type of action that the subject can legally choose to initiate or is permitted to take if deciding to act. Typically, in conferring a power four questions need to be answered:
In conferring a power, legislative counsel generally use “may” as the auxiliary.
The Minister may make regulations for carrying this Act into effect.
The Minister is authorised to make any necessary regulations.
A power expressed in this way is usually taken to give the holder discretion as to whether or not to exercise it. It is not usually necessary to add words to confirm the discretion. However, it is sometimes necessary to couple a power with a duty to exercise it in prescribed circumstances. This can lead to problems of interpretation if “may” rather than “shall” or “must” is used.
The Minister may issue a licence on payment by the applicant of the prescribed fee.
Is the Minister under a duty to issue a licence when the payment is made (does the applicant have a right to a licence merely by paying the fee? If so, “shall” or “must” is the appropriate auxiliary. Or can the Minister refuse the licence even though payment is tendered (is the Minister to have a discretion)?
The simple use of “may” is not conclusive, since it can leave unclear whether the power is discretionary or whether its exercise is obligatory. The context in which the term is used may provide the answer. For example, if the holder has to make a judgment before exercising the power, it is clearly discretionary. At the same time, the courts will insist that the holder is under a duty to go through the process of making the judgment. A statement of the factors to be considered before exercising the power allows the courts to draw such a conclusion.
The following provision gives councils a general authority to act in this way. But it is unclear whether councils are to have a power to issue permits in their unfettered discretion.
Every local government council may issue parking permits to owners of private motor vehicles who are resident in its area.
Can a council refuse permits if it thinks proper? Further provision is needed to set the framework within which the power is to be exercised.
If the power is to be exercised only when specified conditions exist, make clear whether those conditions are to be established objectively or whether the holder is to make a judgment in that respect. Similarly, if the way the power is to be put into effect is to be determined by the holder, make clear that this feature of the power is discretionary.
If the Registrar is satisfied that a registered person is contravening any of the provisions of this Part, the Registrar may serve that person with an enforcement notice requiring him or her to take such steps as are specified in the notice for complying with this Part.
The Registrar may arrange for the publication of such information about the operation of this Act as appear to him or her expedient to give to the public. The information is to be published in the form and manner that the Registrar considers appropriate.
In drafting a power:
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Rules are often needed to regulate previously uncontrolled activities by giving permission for them to be carried on in the future, for example if prescribed conditions or requirements are met or complied with. This can be dealt with in two ways:
Legislative counsel generally prefer the second of these approaches (a “qualified prohibition”) even though it uses a negative form to authorise a positive activity. Although a positive form is more quickly understood, the negative states categorically that permission is wholly dependent upon fulfilling the condition. If a positive form is used, make clear that fulfilling the condition is a pre-requisite of having permission.
A person may carry on a business of dealing in second-hand motor vehicles only if that person holds a dealer’s licence issued under this Act.
No person shall carry on a business of dealing in second-hand motor vehicles unless that person holds a dealer’s licence issued under this Act.
A person must not carry on a business of dealing in second-hand motor vehicles unless that person holds a dealer’s licence issued under this Act.
Denial of authority
In a rule that precludes the subject from exercising a power or denies permission to act, the predicate must be drafted to withhold or withdraw the authority. Legislative counsel generally achieve this by using “may not”. However, if you are seeking to prohibit behaviour rather than prevent the exercise of a power, it is sensible to use “shall not / must not”.
Is the inspector under a duty not to enter on Sundays, in which case a breach can be punished under section 20? Or is the purpose of the auxiliary to withhold the power of entry (breach of which might give rise to civil consequences only)?
If the former, it is clearer to write:
..... but an inspector must not enter a residence on a Sunday.
Legislation that, for example, establishes a new body typically must state the competencies of that body: its jurisdiction, responsibilities and functions (the general activities that enable it to carry out the purposes for which it was created.
The Commission may investigate complaints about judges subordinate to the High Court.
This sentence both designates the Commission as the body to carry out this activity and authorises it to do so. However, it gives the impression of a power, making the decision to investigate a matter of discretion, when its purpose is to state an activity that the body is obliged to carry out. The extent to which the body is to have discretion in performing the function is better dealt with as a distinct issue.
If the objective of a provision is to confer responsibility for a particular activity, more specific words can be used, especially if it involves a duty to act.
The Commission has the function of investigating complaints about judges subordinate to the High Court.
A district court has jurisdiction to hear and determine actions founded on contract or tort if the debt, demand or damage does not exceed $5000.
“Shall” to confer competencies
Legislative counsel in the past have also used “shall” to make an authority responsible for some activity. That auxiliary gives the impression of a legally enforceable duty to act when what is needed is to confer capacity to act with respect to the activity.
An acceptable alternative that gives a less unqualified obligation is to use:
Compare the two versions of each of the following sentences. The second removes any notion of compulsion in conferring competence to act.
The members of the Board shall be appointed by the Minister.
The members of the Board are to be appointed by the Minister.
The District Court is competent to hear and adjudicate upon petitions for the dissolution of marriage.
If the provision is to confer a right on the subject, legislative counsel conventionally achieve this by using “may”. Although this does not differentiate a right from a power, in most circumstances this is of little importance. A right to do things carries with it the power of action.
Right to a benefit
But the power of action may not be intended if you are conferring a right to receive something or be benefited in some respect. To write “may receive”, for example, leaves quite uncertain whether there is some person who is under a duty to pay or merely whether the subject is capable of being made a beneficiary of another’s power, if it is exercised. A need for such an approach can arise:
In cases of this kind, a right is better conferred by “is entitled”.
A child under the age of 2 years is entitled to receive free school education if the Social Welfare Officer considers that the parents of the child are unable to pay the costs of school education.
If a farm animal trespasses on land, the occupier of the land may be paid compensation, as prescribed, by the owner of the animal.
Although the second example would be construed as creating a right in the occupier, it is better stated as:
...... is entitled to be paid compensation .........
Alternatively, the sentence could be drafted in the active voice to impose a duty to pay upon the owner of the animal, but that might not fit with a legislative context that is concentrating on the legal position of occupiers of land.
In a sentence that sets out to deny a particular class of person a right that is available to others, “is not entitled” is more effective than “may not”.
If the owner or occupier of land kills or injures a dog in the course of protecting a farm animal threatened by that dog, the owner of the dog is not entitled to be paid compensation for the death or injury of the dog.
If the rule is to state that the subject is a proper person to perform a particular function, the predicate must declare the subject to be qualified. Conventionally, legislative counsel use “may”. In practice, this rarely causes confusion with powers or rights. But “is eligible” is a better auxiliary.
The second version of the following is more explicit:
The following persons may be appointed directors of the corporation ...
The following persons are eligible to be appointed directors of the corporation ...
In a sentence that excludes the subject from some receiving a benefit or performing a function, “is not eligible” or “is not qualified” can be used instead of “may not”.
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If the provision is to make the subject vulnerable to legal actions by others, the predicate must declare this liability. Conventionally, legislative counsel use the passive form “may be” or “shall be liable to be”. But this use of “shall” suggests some form of obligation, which is not the case. Those cases are better dealt with by “is liable to be”.
A person found trespassing on land belonging to the Railway Authority is liable to be [may be] prosecuted.
If the purpose of the rule is to prevent the subject from being liable, the predicate must create a privilege (it must negative any liability to the action of others). Some legislative counsel use “shall not be [liable]”. This implies a duty in unspecified persons not to act against the subject, when in fact the case is one of absence of power or competence. It is preferable to use “is not liable to be”.
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If the provision is to give the subject directions to do or not do something, or as to how to do something, the predicate must give an instruction to the subject. Some legislative counsel use “shall” or “shall not” in these cases. But, again, this suggests that the subject is under some duty enforceable by a penalty. In many instances, that is not the aim of the sentence. Three types of direction can be distinguished, to which different auxiliaries are suited.
Direction as to composition or persons to perform a function
The purpose of the sentence is to indicate how a body is to be composed or which person is the competent authority. As we have seen, you can use the present tense for this case, or “must”, or “is to”, or similar phrases.
Direction as to how the subject is to perform a function
The purpose of the sentence is to indicate how the subject, having decided to exercise a power, is to proceed. To use “shall”, as has often been the practice, gives the impression that the subject is under a sanctionable duty to act in the particular way. This may be caught by a general penalty clause that provides punishments for contraventions of the Act. This is rarely required. Yet, to use “may” suggests that the process is discretionary, rather than one to be performed in the manner directed.
Subsection (2) intends that the set method of application should be followed, but “must” creates a stronger form of obligation than is needed.
Consider focusing the direction as to how to act on the resulting action (the “application”) into an adverbial phrase which modifies the verb stating the action itself.
Practice what you have learned. It is time to complete exercise 11.
General direction as to procedure
A sentence may prescribe the procedure to be followed in given circumstances. In many cases, the procedure is intended to be obligatory and some form of imperative language has to be used. Some drafters use “shall” or “must”. Some use “is to”, especially when setting out routine administrative procedures. However, from a legal standpoint, the important factor is the consequences that flow from failure to observe the obligation.
These can take a variety of forms. Non-compliance can have penal consequences or invalidate the procedure or render void the outcome to which the procedure was leading. Alternatively, the procedure may be no more than the administratively convenient way of taking a matter forward without any consequences flowing from non-compliance.
Such matters are not determined by the choice of auxiliary.
All summonses, warrants, orders, convictions, recognisances, and all other processes, whether civil or criminal, must be issued or made, and be signed, by a magistrate or, if authorised by this Act, a justice of the peace.
Proceedings before a magistrate’s court are to be instituted either by the making of a complaint or, in the case of a person arrested without a warrant, by bringing the arrested person before the court.
Here the drafting practices in your jurisdiction should provide guidance. But do not expect the courts to treat these terms as conclusive. Courts generally decide these cases by taking account of such matters as the importance of the procedure in the legislative scheme, the interests that are affected, and who will be prejudiced by non-compliance, and to what extent.
If the consequences of non-compliance are important, but may be unclear from the context, do not rely on the choice of auxiliary to make this distinction clear. State expressly what the consequences are. For example, does failure to follow a particular procedure invalidate the action or merely permit the person to whom the procedure is directed to disregard the action if they so wish (for example refuse to consider an application not made in the correct form)? For a more extensive examination of this matter, see Duncan Berry, “Is it sufficient for legislative counsel merely to state the rules?”.
No summons, warrant, order, conviction, recognisance, or other process, whether civil or criminal, is valid unless issued or made, and signed, by a magistrate or, if authorised by this Act, by a justice of the peace.
Unlike Example 51, this draft makes clear that non-compliance renders the processes void.
If your Interpretation Act contains a provision equivalent to the model Interpretation Act, section 44, note the reference.
Practice what you have learned. It is time to complete exercise 12.
Module 2: Section 3
Before considering predicate modifiers, it will be helpful to recall the following elements of legislative sentences discussed in Section 2 of this Module:
There is no fixed line between these two techniques; they can often be used interchangeably. Both are used to ensure that the sentence states precisely when the rule applies or does not apply. (In the next Subsection we look at context clauses, which are used to determine the circumstances or conditions in which the main predicate operates).
The following sentences demonstrate the use of these techniques:
A court may issue a warrant.
A court may issue a warrant for the arrest of a person.
(not a warrant for any purpose, only for the purpose of arrest)
modification by relative clause:
A court may issue a warrant for the arrest of a person who refuses to attend as a witness.
(not a warrant for the arrest of any person, only for a person who refuses to attend)
In response to a request by the State, a court may issue a warrant for the arrest of a person who refuses to attend as a witness.
(The court may not issue warrants whenever it likes; only in response to a State request)
modification by conditional clause:
A court may issue a warrant for the arrest of a person who refuses to attend as a witness if the court is satisfied that the person’s attendance is necessary.
(The court may not issue warrants every time a witness refuses to attend, only if their attendance is necessary)
Module 2: Section 3
Predicates can be given a precise focus in a variety of ways:
Limitations and exceptions are two forms of modifiers commonly required. Both restrict the ambit of the main clause in some way.
Expressions added to the sentence to limit the effect of a subject/predicate need to be positioned in the sentence where they perform that function without the possibility of ambiguity. Complex provisions may need several modifiers of this kind. If the modifiers are not well positioned, confusion may be added to the complexity. Typically:
This leads to the word order that is used in standard English. Deviate from the standard order only if a different order is necessary:
You will have noticed many legislative sentences in which the adverb to the verb it is inserted between the auxiliary and the main verb. This practice (sometimes referred to as “embedding”) is rarely found outside legislation; in most cases it is not necessary. Only consider using this device if that is the only way to prevent uncertainty or ambiguity.
Here is an example of an unnecessary embedding of modification:
An appointed member of the council shall, on revocation of the appointment by the Minister, but without prejudice to re-appointment in accordance with this Act, cease to be a member of the council.
In addition, this version conceals the fact that 2 different types of modification are present. The first modifies the verb, but the second limits the ambit of the entire rule. A better draft would be:
An appointed member of the council ceases to be a member if the appointment is revoked by the Minister; but the person may be re-appointed in accordance with this Act.
Practice what you have learned. It is time to complete exercise 13.
The purpose of an exception is to remove specified cases from the generality of the provision. These may be cases that are dealt with in other law. Exceptions modify the sentence through added words that exclude from the ambit of the rule the cases in which the rule is not to apply. This can be achieved:
Any member of a trade union, other than [except] a member under suspension, may apply to the court of a declaration under this section.
Previously legislative counsel also used “provisos” for this purpose. Today, most legislative counsel no longer use them. (See LGST 553, Module 1, Section 1 - How should we structure a legislative text?).
In composing an exception, take steps to provide that:
A sentence that provides only for an exception may obscure the nature of the main rule, as that has to be deduced by implication. If it is drafted in that way, ensure that no-one can be in doubt as to what that rule may be.
A summons or a warrant may be issued and served on any day except Sunday.
A summons or a warrant may not be issued or served on a Sunday.
In the first example, both the general case and the exception are clear. In the second, the sentence is silent on the general case, though it is not too difficult to deduce it.
If a long exception is required to modify the whole sentence, consider converting it into an explanatory clause, with its own subject and predicate, at the end of the sentence and introduced by a conjunction such as “but” or “however”. This brings out strongly the relationship between the rule and the exception.
If the exception is detailed or in any way complicated to understand, convert it into a separate sentence to follow the main rule, as a further subsection. You may again need suitable linking words to indicate the relationship between the two propositions. (Linking of sentences is also considered in LGST 553, Module 1, Section 1 - How should we structure a legislative text?).
A local authority may cause the body of a child who has died while in its care to be buried or cremated; but the body may not be cremated if cremation is not permitted in the practice of the child’ s religion.
In the second example, the exception in subsection (1) modifies an element in the sentence. Subsection (2) creates an exception to the entire sentence.
A relative clause may be used to modify any noun (or pronoun) that is a component of the subject or predicate. It is adjectival in that it defines qualities or activities of the noun to which it is attached, typically by a relative pronoun (for example “who”; “whom”; “which”; “that”).
A mental health authority may transfer the guardianship of a patient who is for the time being subject to the guardianship of a person to another person with that other person’s consent.
A person who fails to comply with an enforcement notice commits an offence.
In drafting a relative clause:
As the term implies, a conditional clause may be added to the predicate to state the conditions that must exist or be fulfilled before the action has effect. As a result it is used adverbially, to modify the verb.
The mental health officer must inform the nearest relative in writing of his or her reasons if the officer decides not to make an application under this section.
A mental health officer may not make an application for admission of a patient to a mental health hospital unless:
In these examples, the clause is incorporated into the main predicate to provide continuity in the way the proposition is expressed. However, such clauses are often positioned as a subordinate clause at the opening of the sentence. This practice is discussed next.
Module 2: Section 3
Context clauses are subordinate clauses containing their own subject and predicate. They give additional meaning to the principal clause by creating the context or legal setting in which that clause is to operate. They typically determine such matters as:
(1) Where [or if] persons wish to marry, one of the parties to the intended marriage must give notice in the prescribed form to the registrar of the district in which the marriage is intended to take place.
(2) When notice of an intended marriage is given, the registrar must cause the particulars of the notice to be entered into a register, to be called the “Register of Marriage Notices”.
(3) If, at the end of 21 days after the date of the notice, the registrar has received no objection in writing to the intended marriage, the registrar must issue a licence in the prescribed form authorising the parties to marry.
(4) If the marriage is not solemnised within 3 months after the date of the notice, the notice and licence cease to have legal effect.
Context clauses must have a subject and predicate, but the conventions concerning these components are more flexible than they are for the principal clause.
Unlike the principal clause, a context clause need not focus on specific legal persons. It is generally descriptive in content, and so it may relate to persons or things, activities or events. Therefore:
Let the grammatical subject of the clause be dictated by what enables you to describe the subject-matter best. If you are following up an aspect of the previous sentence, the grammatical subject may be suggested by the contents of that sentence.
The context clause builds upon section 12, which laid down rules about the giving of notices. Its grammatical subject (a “notice”) relates back to the matter in that section.
In context clauses we see most clearly the impact of the convention that legislation is always speaking. These clauses continuously describe the circumstances and conditions in which the provision operates. Therefore:
If a person who is over the age of 21 years and resident outside Utopia wishes to marry in Utopia, he or she may apply to the Registrar-General for permission to marry by proxy.
The power to apply is available to anyone who fulfils the requirements of the context clause as soon as they are fulfilled, and continues as long as they continue to be fulfilled.
When a marriage is solemnised by a registrar, the registrar must enter immediately the particulars of the certificate of marriage in a register kept for the purpose (to be called the “District Marriage Register”).
Although the marriage is solemnised before the registrar can act, the duty to register arises as soon as the marriage has taken place.
When a marriage was solemnised outside Utopia, either party to the marriage may petition the High Court for dissolution of that marriage under this Act.
If a person has been ordained a minister of religion, the Minister may appoint that person to be a marriage officer in Utopia.
When drafting context clauses:
The terms that legislative counsel typically use to begin context clauses are:
These are especially favoured when the context clause is at the beginning of the sentence. But:
Legislative counsel have traditionally tended to use “where” in cases when “if” and “when” are more consistent with day-to-day use. In a number of jurisdictions, “if” is now used to begin both clauses that express the contingency that activates the main predicate (as in the past) and for clauses that describe recurrent or habitual circumstances in which the main predicate operates (in substitution for “where”): see, for example, the article on If, When and Where in the Canadian drafting manual, Legistics.
When writing a context clause, ask yourself which of the three terms best introduces the matter in the clause. However, you must give due regard to the drafting practices in your jurisdiction.
Check the drafting practices in your jurisdiction for any drafting directive in use or from recent legislation.
Let us look how these terms are conventionally used and when they might be used.
|Common practices||Better practices|
|“where”||to introduce circumstances that:||to introduce|
|“when”||to introduce circumstances that:||to introduce an event or action:|
|“if”||to describe a prior condition that triggers the application of a provision.||to introduce:|
Practice what you have learned. It is time to complete exercise 14.
Other terms are used to introduce context clauses, though usually where the clauses are placed later in the sentence, especially at the end. They include:
Legislative counsel use these terms in the same way as they are used in other forms of writing. They typically introduce a full clause (with a subject and verb), but you may be able to use shortened versions.
Shorter versions are achieved by leaving out the words in brackets.
The registrar must not issue the certificate of marriage unless [he is] satisfied that there is no legal impediment to the marriage.
The registrar must not issue a certificate of marriage before notification [is made] under section 12.
Many legislative counsel still follow Coode’s advice to place context clauses at the very beginning of the sentence (before the principal clause). There are several benefits:
The condition in the context clause in this example must be satisfied before the provision can have effect. The rest of the sentence is relevant only if the condition is satisfied.
But this order may make the sentence unnecessarily difficult to understand, particularly if the context clause covers several alternatives or embraces both circumstances and conditions. Readers generally find sentences that are “front-loaded” in this way difficult to work with. For example:
The entire section has to be read and the various alternatives considered before its full import is clear. (This would, of course, be eased by a helpful section note, for example: “Void marriages.”).
A sentence is easier to understand if it begins with the subject and predicate followed by the context clause. Legislative counsel now tend to avoid front-loading unless they have a good reason, such as making a link with a preceding provision. Accordingly, context clauses should occupy the place in the sentence that best contributes to communicating the provision. Choose a sentence order that leads to the most effective expression. For example:
Practice what you have learned. It is time to complete exercise 15.
You may find it easier to determine the order of the sentence components if you use a different kind of modifier instead of a full context clause, for example:
A context clause can often be easily converted into one of these forms without a change of meaning or loss of effect.
Practice what you have learned. It is time to complete exercise 16.
You can make a context clause more prominent by putting it either at the beginning or at the end of the sentence. But bear in mind the draw-backs of front-loading. For example, do not transfer the essential elements of the principal clause to a front-loaded context clause to achieve that prominence. This was a common practice with offence provisions in the past. Consider rather whether the prominent position at the sentence start should be occupied by the main clause (the core subject and predicate) with the modifying clause at the end.
If a person at a public gathering behaves in a noisy or disorderly manner or uses or distributes a document containing threatening, abusive or insulting words with intent to provoke a breach of the peace or by which a breach of the peace is likely to be occasioned, that person commits an offence and is liable to imprisonment for 12 months.
This draft requires the reader to wade through a detailed context clause containing the forbidden behaviour before finding out that it is that behaviour that is made a crime.
Practice what you have learned. It is time to complete exercise 17.
Module 2: Section 3
In this Section you have been building your knowledge of how the components of legislative sentences are to be put together. You should now have a clear understanding of the way to approach the task and the questions that you need to consider. You have also been introduced to a range of techniques for expressing their components, in particular the different forms of expression that different types of legal provisions should be given.
At the end of this Section, you should be able to do the following:
Read through the Essential Questions at the beginning of this Section. After reviewing what each one dealt with, ask yourself whether you have met the Section objectives.
Do not expect to be able to remember every detail of the matters just considered. You can always verify those when the need arises. You will find that details fall more readily into place when you have had occasion to put techniques into practice a number of times. At this stage you need to be confident that you understand what you have examined and that you can put that to use in the proper places. If you need to refer back to the text to do so, accept that as the way to make the matter your own. Ask yourself whether you can do what is recommended when you need to and recognise when you need to use particular approaches. If you are uncertain on any topic, rework the relevant part of the text.