LGST 551
Introduction to Legislative Drafting (OCW)

 

LGST 551
Introduction to Legislative Drafting (OCW)

Study Materials

Module 2: Section 3

How should we write the principal predicate?

Keep the following considerations in mind when formulating the principal predicate:

  • legislation should always be speaking;
  • sentences in the active voice are generally more effective;
  • several subject/predicates in the same sentence are confusing;
  • the verb must include an appropriate auxiliary, except in declaratory statements.

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.

Example 22

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.

  • Sentences in the active voice are generally more effective since the usual word order in an English sentence is:
  1. subject;
  2. verb;
  3. object.

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.

  • they obscure the subject

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").

  • the legal person may be overlooked

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".

Example 23

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.

  • they can be clumsy and lead to false subjects

Example 24

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”.

  • However, the passive voice can be useful, even preferable, in certain circumstances:
    • if the provision is of universal application to all legal subjects

Example 25A

Operating a motor vehicle on a pedestrian walkway is prohibited.

    • if the action is to be performed by a member of an organization, but it does not matter which one

Example 25B

A person arrested under a warrant of arrest must be taken without unnecessary delay before a magistrate’s court.

    • if the provision declares the legal status of a person or thing

Example 25C

Property deposited with the building authority and not claimed within 30 days after its deposit is forfeited to the building authority.

    • to achieve greater continuity in a series of provisions

Example 25D

  1. (1) The Safety Authority may require the occupier of the premises to carry out measures required to ensure the safety of the premises.
  2. (2) The expenses of carrying out the measures are to be borne by the occupier of the premises.
    • in a series of provisions if the first one makes it clear who is responsible for the action

Example 25E

  1. 1. A person who operates a motorcycle in the park must comply with the following rules.
    • (a) the speed of the motorcycle must be kept under 30 km per hour.
    • (b) the motorcycle must not make excessive noise.
    • (c) the motorcycle must be operated only on roadways.

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.

Example 26

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:

    • imposes a series of distinct requirements on the same subject
    • imposes a series of requirements on several subjects, when all the subjects are affected by all the requirements

Example 27A

A director, a manager and an employee of a company must:

  • (a) provide information as required by this Act;
  • (b) answer all written questions communicated under section 25; and
  • (c) make available all company documents containing information that appears to be relevant to proceedings under this Act, whether requested or not.
    • provides for two closely linked actions that arise in the same circumstances.

Example 27B

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.

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