Thornton on legislative drafting: shall / may / must in legislation

Although I can see the attraction of buying a ukelele (or ukulele – Collins accepts both spellings – see Desbladet’s entry She’ll be coming round the mountains [sic]), I instead sprang for G.C. Thornton’s ‘Legislative Drafting’, which costs almost as much as a ukelele but takes longer to read.

I quote it in full on shall, may, must in legislation in the continuation (overleaf, as it were).

Note that this is about legislation, not about contracts.

The book has wonderful sections on style, on miscellaneous words and expressions that should be used with care or avoided. Also on the process of drafting and much more.

It made me aware that the Interpretation Act (1978) is worth having for translators. I ordered it for £3.80 plus £3.50 postage from Blackwells.

To see the if I wanted to buy the Thornton, I tried Hammicks (just sold to the Scottish booksellers John Smith), but no luck. Then I went to Wildy’s, whose Colin Wickham knows everything and is in charge of the big second-hand department, and he sent me to LexisNexis (originally Butterworths) in Chancery Lane, where they had two copies. He also told me that Garth Thornton is unfortunately another of those Australians who do these things so very well.

Through Google I found two more legal bookshops: Lambs, in Store Street, London, and Avizandum in Scotland.Thornton writes (bold by MM):

Shall is a verbal auxiliary capable of performing two separate functions which should not be confused.
Shall may be –
– temporal and denote future time, or
– modal denoting obligation (in traditional grammar referred to as the imperative mood).

The temporal use is not often necessary in legislation because of the convention (in some jurisdictions enshrined in interpretation legislation) that a statute is to be regarded as always speaking. Thus, although it may be known that acts of circumstances may occur long after the statute is passed, the present tense will in most cases nevertheless be correct.

These examples are incorrect –
If any person shall give notice, that person may appeal …
If any balance shall have been found to be due … .
A person who shall allow any animal to stray … shall be guilty of …

Correct forms are –
If any person gives notice, that person may appeal …
If any balance is found to be due …
A person who allows any animal to stray … is guilty of …

It is preferable to use must instead of shall to impose an obligation. This is more in line with ordinary speech and avoids the confusion that the use of shall may introduce. The declaratory use of shall in contexts that are neither temporal nor obligatory, although quite common, should be avoided.

The agreement is void.
not
The agreement shall be void.

In some contexts where an obligation is intended, is required to or is to may be preferable to shall, particularly when the obligation is of an administrative character.

The registrar is required to maintain the register in an up to date form. [MM: What, no hyphens?]
or
The registrar must maintain the register in an up to date form.
not
The registrar shall maintain the register in an up to date form.

In the following example, must is used correctly in its imperative sense:

If a balance is found to be due, the Commission must report that fact to the Minister.

May should be used where a permission, benefit, right or privilege is to be given. Thus –

A licensee may …
not
A licensee shall be entitled to …

The misuse of the word shall can appear to convert a condition of a kind that may or may not be performed at the will of the party into a positive command. For example

Fourteen days’ notice in writing shall be given by every person entitled to appeal …

Not infrequently, courts have been obliged to construe may as obligatory but these instances amount rather to judicial amelioration of drafting errors than to a licence to drafters to say one thing and mean another. (Footnote: In some jurisdictions interpretation legislation prescribes shall to be mandatory and may to be permissive.)

A duty should not be disguised as a discretion or permission. May should not be used where a duty is imposed which must be performed. The following example is indefensible –

Upon receiv

ing an objection made under section 4, the Minister may consider it and …

1 thought on “Thornton on legislative drafting: shall / may / must in legislation

  1. V. neat analysis.

    Reminds me of the Scand. coll. and written overuse of shall (‘skall’) that can mean anything from must to will, going to and be due or scheduled to.

    Also there used to be a Teach-Yourself Eng. Grammar that gave the future tense as
    (I) shall,
    (you) will,
    (s/he)will,
    (we) shall,
    (you) will,
    (they) will.
    This conjugation always struck me as memorably right: ‘I/we shall be flying, BA permitting’ but: ‘BA and United Airways will be balloting members – not air pasengers – about going on strike.’

    Also, some contract drafters at Clifford-Turner (Clifford Chance) had no problem about using ‘will’ instead of the stilted ‘shall’ in legal docs.: ‘The Supplier WILL provide that service.’

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