LGST 551
Introduction to Legislative Drafting (OCW)

 

LGST 551
Introduction to Legislative Drafting (OCW)

Study Materials

Module 1: Section 3

What were Coode’s guidelines
for forming sentences?

It is scarcely surprising with this general approach that common law legislation is made up of a series of detailed and specific provisions directed towards required or permitted behaviour of persons or classes of persons identified in the legislation. The absence of expressed general principles in the legislation is understandable. Readers of statutes drafted in parliamentary jurisdictions will find these features familiar.

Coode’s guidelines on how to select the components of legislative sentences should also be familiar to users of Commonwealth legislation, although a number of them have been modified by later practice.

Selecting the legal subject

  • The subject should be a legal person

    The legal subject must be a legal person (individual or body) that the law recognises as capable of bearing rights, privileges, powers, liabilities or obligations. It can, therefore, never be, for example, an animal or an inanimate thing (other than a ship). Rules are intended to affect the behaviour of persons; they cannot be directed to dogs or disorders.

  • The legal person should be the grammatical subject of the sentence

    Typically, the legal subject should be the grammatical subject of the sentence. But an inanimate thing can be made the grammatical subject, if the legal person affected is obvious from the sentence.

  • There should be only one legal subject in any sentence
  • The subject should be placed in a prominent position in the sentence

    The subject should occupy a distinctive position in the sentence, preferably at or near the beginning of the sentence and before the verb (predicate).

Example 4

A person must not use a guard dog at any premises unless the dog is under the contrul of that person at all times while it is being so used.

The grammatical subject of the sentence is a legal person (applying to everybody with legal personality); it is in the most distinctive possible position in the sentence—at the beginning.

  • The subject should not be obscured

    The legal effects of the rule will be less clear if the legal subject is obscured, for example because an inanimate thing, rather than the legal person, is the grammatical subject.

Example 5

It is unlawful to use a guard dog on any premises unless the dog is under the control of a person at all times while it is being so used.

A guard dog must not be used on any premises unless the dog is under the control of a person at all times while it is being so used.

These two versions of the same rule obscure the precise persons to whom the prohibition applies. (Is it the owner of the premises, the handler, the user or the owner of the dog?). No legal person is identified. The grammatical subjects are the inanimate “it” (sometimes termed a “false subject”) and a non-person “guard dog”. A sounder approach is the one in Example 4.

Selecting the legal action

  • The action should contain a specific auxiliary verb

    The legal action should contain a verb that is qualified by one or other of the following auxiliary verbs:

    • “must” or “must not” for: commands to act or not to act (duties);
    • “may” or “may not” for: rights, privileges, and powers (or absence of them)
    • “is” or “may be” for: liabilities.
  • The verb should be in the active voice

    The verb should, wherever possible, be used in the active voice; this facilitates making the legal subject into the grammatical subject and expresses the effect on the legal subject more positively. However, if the rule is to require the legal subject to submit to, or to be subjected to, some action or liability, the passive voice may be used, so long as it is clear, or if it is irrelevant or unnecessary to state, by whom that action is to be taken.

Example 6

A person trespassing on land occupied by a railway company may be prosecuted.
A person arrested under this Act must be brought before a magistrate as soon as practicable.

  • The action can contain several verbs

    More than one verb (with the appropriate auxiliary) may be used in a legislative sentence to provide for the performing of a series of related legal actions.

Example 7

The police officer may arrest a person whom the officer suspects to have committed an offence, but must bring that person before a magistrate as soon as possible.

Selecting the case

  • The case should take the initial position in the sentence

    Where the rule is to operate in specific circumstances only, those circumstances should be described before anything else in the sentence, as they provide the context for everything that follows in the sentence.

  • The case should always be speaking

    The verb in a case clause should be expressed as always speaking (describing a current, rather than a future, state of affairs). It should not use the auxiliary verbs "must" or "may", which must be reserved for the legal action.

  • The case should be in the present tense, or when required, a past tense

    The present tense should be used, if the circumstances described are concurrent with the legal action. The perfect tense should be used if the circumstances described are to have occurred before the legal action.

  • The case should begin with an appropriate introductory term

    A case clause should usually be introduced by the conjunction “where” (where it describes circumstances) or “when” (when it describes a time at which or by which circumstances occur).

Example 8

When a police officer sees a person committing an indictable offence or where a reputable person has reported to the officer that a person has committed an indictable offence, the officer may arrest that person.

The sentence in this example contains two cases and illustrates both the recommended uses of verbs and introductory terms.

Selecting the condition

  • The condition should usually be a condition precedent

    If the rule will only take effect if some person has performed some action that triggers it, the subordinate clause that describes it is a condition precedent.

  • It should be placed towards the beginning of the sentence

    It should precede the legal subject/legal action, since the rest of the sentence has effect only if the condition is met.

  • It should always be speaking and, typically, in the present tense

    The auxiliaries “must” and “may” should not be used. If the condition occurs at the same time as the rule is triggered off, the present tense should be used. Only if the action has already happened, is a past tense needed.

  • Conditions (if more than one) should be set out in a logical order

    If there are several conditions, they should be set out in a logical sequence (for example, in the chronological order of their occurrence or of their performance).

  • The condition should begin with an appropriate introductory term

    A condition clause should be introduced by the conjunction “if”, unless the clause takes the form of an exception or states a condition under which the rule does not take effect; then “unless” is needed.

Example 9

If a court, after dismissing a case, considers that the charge was frivolous, it may order the complainant to pay to the accused person a reasonable sum as compensation for the expense to which the accused may have been put as a result of the charge, unless the accused has incurred no expenses.

The sentence in this example contains a condition precedent and an exception (negative condition). This too illustrates both the recommended use of verbs and introductory terms.

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