LGST 551
Introduction to Legislative Drafting (OCW)


LGST 551
Introduction to Legislative Drafting (OCW)

Study Materials

Module 2: Section 3

How should we write
context clauses?

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:

  • the fact situation in which a provision is to operate (for example: the time, place, circumstances);
  • the action taken by some person that triggers the application of a provision;
  • a condition that is to be met before a provision can take effect.
  • the event that brings the rule into operation;

Example 60

Fact situation:

  1. (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.

Prior action:

  1. (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”.


  1. (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.


  1. (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.

Subject of a context 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:

  • the grammatical subject may be a legal person or an animate or inanimate thing, or an action or activity (in the singular or plural);
  • if the grammatical subject is a person, it may refer to the person who is the legal subject of the sentence or to a different person.

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.

Example 61

  1. 13. When a notice is given under section 12, the Registrar-General must file it and enter the particulars of it in the register kept for the purpose and must post a copy of it in a conspicuous place in the registry.

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.

Verb in a context clause

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:

  • use the present tense if the verb describes a state of affairs that has to coincide with the operation of the principal clause (this is by far the most typical case);
  • use the present tense when the provision is to operate immediately once the circumstances described arise.

Example 62

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.

  • use the past tense or the present perfect tense if you wish to emphasise that a state of affairs or an action must have occurred or have been completed before the principal clause can take effect. This is likely to be the case when:
    • the context clause provides for the happening of a single event, rather than events of a kind that are likely to be frequently arising;
    • the context clause lays down a pre-condition that must be fully met before the rule can operate.

Example 63

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:

  • never use “shall” (either as a future tense or as a command) or “may” in a context clause: these should be confined to the principal predicate;
  • prefer the active voice to the passive voice (as in a principal clause); at the same time, passives with impersonal subjects are a useful way to connect the sentence with a previous sentence (as in Example 61).

Introducing a context clause

The terms that legislative counsel typically use to begin context clauses are:

  • if,
  • when,
  • where.

These are especially favoured when the context clause is at the beginning of the sentence. But:

  • these terms tend to be used a little differently from the ways in which they are used in non-legislative writing;
  • they are not always used in exactly the same way by all legislative counsel;
  • they are frequently used interchangeably.

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.

Activity 6

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 practicesBetter practices
“where”to introduce circumstances that:
  • are likely to arise frequently;
  • are of a continuing nature or describe the factual setting in which the provision operates.
to introduce
  • an adverbial clause that refers to a physical place;
“when”to introduce circumstances that:
  • are unlikely to arise frequently; or
  • can only occur on one occasion.
to introduce an event or action:
  • when time or timing is a factor; or
  • about which greater certainty is required than is offered by “if”.
“if”to describe a prior condition that triggers the application of a provision.to introduce:
  • a condition that is a prerequisite to the operation of the main predicate; or
  • a fact situation in which the main predicate is to operate.

Practice what you have learned. It is time to complete exercise 14.

Use the “Navigation” menu on the left to click on “Activities” and then “Quizzes” to find the Exercises.

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:

  • unless,
  • until,
  • after
  • before,
  • as soon as.

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.

Example 64

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.

Placing a context clause

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:

  • it indicates to the reader at once that the provision is not of universal application;
  • it allows readers to discover whether the context of the provision applies to their case before looking in depth at the entire sentence;
  • it can be used to provide a link with an earlier sentence, by building upon information already known to the reader;
  • it frequently conforms to the time frame for the operation of the provision by putting a pre-condition or circumstance before its consequences.

Example 65

  1. (2) If a certificate of a marriage cannot be issued under subsection (1) by reason of the residence outside Utopia of one of the parties, a magistrate’s court may dispense with the issue of the certificate of marriage and issue a licence authorising the solemnisation of the marriage.

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:

  • they have to read the entire sentence to find the core subject and predicate so as to understand the purpose of the context clause;
  • they are asked to carry information forward in their short-term memory until the rest of the sentence has been understood.

Example 66

  1. 12. If a marriage has been solemnised by a person who is not a marriage officer or if either of the parties to the marriage married under a false name or if the marriage has been solemnised without the authority of a certificate of marriage, the marriage is void.

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:

  • a conditional clause may be more effective if it follows the main clause (this is usually the case when it is to begin with “unless”);
  • a series of conditional clauses (beginning with “if”) can follow the main predicate in a series of paragraphs.

Practice what you have learned. It is time to complete exercise 15.

Use the “Navigation” menu on the left to click on “Activities” and then “Quizzes” to find the Exercises.

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 phrase introduced by a preposition;
  • a relative clause introduced by a relative pronoun (for example: “who”, “which” or “that”).

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.

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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.

Example 67

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.

Use the “Navigation” menu on the left to click on “Activities” and then “Quizzes” to find the Exercises.

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