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Expressing Obligations and Prohibitions
Legistics est un recueil d’articles portant exclusivement sur les questions de rédaction en anglais des textes législatifs. La nature même de l’ouvrage fait en sorte qu’il n’est offert qu’en anglais.
Direction
Provisions creating obligations in new legislative texts are ordinarily to be drafted using “must”.
Provisions creating prohibitions in new legislative texts are to be drafted using “must not” or the verb “prohibited”. (Prohibitions are a kind of obligation, an obligation to not do something, but as drafting considerations for prohibitions are different from those for positive obligations, they are treated separately in this note.) “May not” and “no person may” are not to be used to create prohibitions.
The auxiliary “shall” is not to be used, because of its legalistic tone, its rarity in Canadian English outside legal documents and the multiple meanings that have been ascribed to it in legislative texts.[1] However, when an existing text that contains “shall” is being amended, “shall” may be used in the amending text to preserve consistency, if there is no opportunity to remove “shall” generally from the existing text.
“Must” can sometimes be linguistically inappropriate as a replacement for “shall”. For instance, a provision such as “There shall be a corporation to be known as XYZ” yields something that sounds wrong if “must” is substituted for “shall”: “There must be a corporation to be known as XYZ”. If “must” appears to be the wrong word, “is to” can often be used instead: “There is to be a corporation to be known as XYZ”. Alternatively, some other redraft might be possible: “The XYZ corporation is established”.
It is appropriate to use “must” to impose an obligation on a Minister or the Governor in Council (if, as a matter of policy, that is what is to be done).
Discussion
Obligations
“Must” is widely used to express obligation and has long been recognized as being capable of creating legislative requirements. However, this usage in federal legislation was at one time restricted to non-penal provisions and to sentences in which the subject was not a person. This restriction was based on the following comments by Elmer Driedger:[2]
Strictly speaking, ... [everyone must] does not directly create a duty; it merely asserts the existence of a duty, however it may have been created. Thus, anyone can say that all motorists must drive on the right, because the legislature has said they shall. But if the speaker has the power to command, then must has the force of a command, but only by inference. Hence, in directing commands to persons shall is better. Must may appropriately be used where it is not intended that a breach of the injunction should result in penal consequences (The Members of the Board must be appointed by the Minister) or where the “command” is directed to things rather than persons (The agreement must contain).
Driedger was correct in saying that “must” can express commands that are created by someone other than the speaker (objective or declarative use of “must”). However, his suggestion that it cannot express commands created by the speaker (subjective or performative use of “must”) is not supported by more recent literature on linguistics, which recognizes that “must” is capable of conveying both senses. For example, R. Quirk et al. say that “must” “typically suggests that the speaker is exercising his authority.”[3] R. Huddleston and G.K. Pullum note that “must” can “be objective, most obviously in reports of rules and regulations”, but they also say that “must” “is commonly used when there is no question of the speaker having the power … to require actualisation”, and go on to describe subjective or performative use of “must” – “with the speaker as … the one who imposes the obligation” – as “prototypical”.[4] If a legislative text states that someone must do something, it is difficult to imagine that anyone, including a court, would interpret the provision as doing anything but creating a strong obligation.
“Must” is extensively used in the legislation of other jurisdictions, notably Australia and at least three Canadian provinces (British Columbia, Alberta and Manitoba) that have amended their Interpretation Acts to state that “must” is to be interpreted as imperative. The UK Office of Parliamentary Counsel has also recognized its use. There is no case law casting doubt on the effectiveness of “must” to create obligations and prohibitions. Both the Constitutional and Administrative Law Section and the Criminal Law Policy Section have looked at this question and see little risk that “must” will fail to convey a legal obligation in situations where “shall” would do so.[5]
The Australian Plain English Manual contains apt words with regard to imposing obligations on Ministers or the Governor in Council: “We shouldn’t feel any compunction in using ‘must’ and ‘must not’ when imposing obligations on the Governor-General or Ministers, because ‘shall’ and ‘shall not’ were acceptable in the past.”[6] Indeed, in Canadian federal legislative texts, the words “the Minister shall” are currently used in over 300 statutes and in over 200 regulations, and “the Governor in Council shall” in over 100 statutes and in seven regulations. For that matter, the words “the Minister must” are currently found in over 40 statutes and in over 30 regulations, and the words “the Governor in Council must” in four statutes (but not in any regulations).[7]
Prohibitions
There are several ways to draft prohibitions:
- “X must not …”
- “A person must not …”
- “It is prohibited to …”
- “It is prohibited for anyone to …” / “It is prohibited for any person to …”
- “Everyone is prohibited from …” / “Every person is prohibited from …”
Prohibitions must not be drafted as
- “No person must …”
Not only is “No person must” rare in common usage, but it is ambiguous about whether it means that the thing is prohibited or is merely not obligatory.
“May not” and “no person may” must not be used to create prohibitions. “May” in the positive has quite a different meaning from “shall” or “must”; however, the meaning of these words in common usage is more or less the same when they are made negative: that something is forbidden. As Driedger has written, the negation of “may” therefore may lead to situations where
… it is not clear whether the legislature has merely made an exception to a grant or has issued an injunction, and there would be doubt whether or not penal consequences follow the doing of what is said not to be permitted…. It is recommended that the form No person may should never be used to create an obligation…[8]
Despite Driedger’s recommendation, “may not” and “no person may” have been used in both statutes and regulations in provisions that clearly create prohibitions as well as in provisions that merely limit powers. Furthermore, the negation of “shall” and “must” has been used in provisions that are clearly intended to merely limit powers and not create prohibitions (e.g. “The applicant is not required, and shall not be compelled, to give any evidence or testimony …”; “The applicant is not required, and must not be compelled, to give any evidence or testimony…”).
Footnotes
- [1] “Shall” was traditionally used to create numerous kinds of rules of law, for example, “This Act shall come into force on…” Rules of law are now to be drafted using the simple present tense: “This Act comes into force on…”
- [2] The Composition of Legislation, 2nd ed. (Ottawa: 1976), at 10.
- [3] A Comprehensive Grammar of the English Language (Harlow: 1985), at 225.
- [4] The Cambridge Grammar of the English Language (Cambridge: 2002), at 183.
- [5] “Must” also has an epistemic meaning, in which the speaker expresses confidence in the truth of the utterance: “It must be raining if people are coming in with wet umbrellas” (The Cambridge Grammar, at 173, 177-8; J. Coates, The Semantics of the Modal Auxiliaries (London: 1983) at 34-35 and 41-43). However, this is no different from “may” having both the sense of granting power or permission and an epistemic meaning that expresses possibility. Context makes the intended meaning clear.
- [6] http://www.opc.gov.au/about/docs/PEM.pdf. (PDF version, 287 kb) PDF Help
- [7] It should also be noted that, in contrast, “the Minister is to” is currently found in only four statutes and one regulation, and “the Governor in Council is to” is not found at all.
- [8] The Composition of Legislation, at 12.
