Home introduction to legislative drafting How Were Coode’s Foundations Built Upon?

How Were Coode’s Foundations Built Upon?

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How Were Coode’s Foundations Built Upon?

Later drafters have built upon these approaches. Two factors helped in this respect. 

Coode’s approach assumed that subject, action, case and condition would be contained in the same sentence, almost certainly influenced by the requirement that each section of an Act could contain only one sentence. After sub-sectioning was authorised, drafters: 

  1. found less need to compress both the main proposition and its exceptions and qualifications into the same sentence; 
  2.  gained more flexibility by being able to compose related sentences in the subsections of a section. 

These trends were strengthened by the use of paragraphs to divide the contents of individual sentences. 

Coode tended to use his own terms to describe components of legislative sentences. Later drafters have rightly relied upon standard grammatical terms. This emphasises, as Driedger insists, that “there is no special language for statutes”. As a result, drafters now tend to use the following terms: 

  1.  a sentence, in grammatical terms, includes a principal subject and predicate (conforming to Coode’s “legal subject” and “legal action”); 
  2.  modifying clauses can be used in sentences (as “sentence modifiers”) to describe the context or fact situation, or both, in which the rule operates. (There is no grammatical difference between the “case” or “condition” as Coode’s distinction might suggest). 

The following are some of the principal ways in which later drafters built upon the foundations laid in the Coode approach.

  1. The principal subject can be a non-personal subject It is too restrictive to require the grammatical subject of every sentence to be a legal person (as Coode himself recognised). In a larger number of cases an inanimate or impersonal grammatical subject may be used with the principal predicate: – declaratory statements -definitions, interpretation or explanatory provisions – application or referential provisions – where it is obvious which legal persons are affected – to provide continuity with a matter dealt with in an earlier sentence. Subjects of these kinds should be used only so long as they give rise to no uncertainty as to the legal persons who are to comply with the provisions in the sentence. Example Box 10 The following sentences illustrate the cases listed. declaratory: (1) The Companies Act 1968 is repealed. definition: 
  2.  In this Act, the expression “complaint” means an allegation that some person known or unknown has committed an offence”. application:
  3.  Section 25 of the Penal Code applies to persons convicted of an offence under this Act. obvious subject: 
  4.  Applications for a dealer’s licence are to be made to a local government council. continuity: 
  5.  A warrant for arrest under this section may be issued by any Judge or magistrate. 

2. The principal predicate can be used more flexibly:

  1. To state conclusions of law, as well as to provide for actions Principal predicates are no longer concerned solely with actions. They are used to declare legal status or consequences. 
  2.  Making fuller use of passive verbs :Principal predicates are now more frequently in a passive tense than Coode suggested. The decision should be dictated by ease of use, but, as Coode insisted, only if there is no ambiguity about the legal persons who are to comply with the rule. 
  3.  Employ a wider range of auxiliary verbs:The verb in the principal predicate is not limited to verbs using the auxiliaries “may” or “shall”. This can be too restrictive. Some jurisdictions have accepted that “shall” is not used in common speech to impose obligations, and is unnecessarily legalistic. For example, it may be more appropriate to: 

a) express an obligation by using “must”, rather than shall;
b) express a right by “is entitled” rather than “may”, which could be construed as conferring a power;
c) use a present tense to make a statement of legal consequence or legal status.

Example Box 11

The following sentences illustrate the use of other verb forms. On receiving a complaint alleging a corrupt practice by a public officer, the Commissioner must investigate the conduct of that officer and of any other person who appears to the Commissioner to be concerned in the alleged corrupt practice.
A person commits an offence who knowingly obstructs a police officer when performing any function under this Act .
There is established by this Act an Institute by the name of Nigerian
Institute of Advanced Legal Studies.
The tort of detinue is abolished.

3. Context clauses can be used more flexibly than the case and condition

i) Different kinds of context clause Though both are sentence modifiers, analytically, we may still distinguish
a) a clause that states the fact situation in which the rule operates; and b) a clause that states an action that triggers off the rule (a condition). ii) Different uses of introductory words

Drafters tend now not to use “where” to introduce a context clause as this connotes locality rather than conditionality or circumstance in general usage. Instead they increasingly prefer: a) “if” to introduce a context clause that describes the factual setting or general circumstances in which the rule operates or one describing an action or event that causes the rule to operate;
b) “when” to introduce a context clause that describes an action or the event on the happening of which the rule takes effect.
c) “unless” to introduce a clause describing an action, event or state of affairs that precludes theMoperation of the rule.

iii. Flexible positioning in the sentence

Context clauses are not now routinely placed before the principal subject and verb in the sentence. That was necessary when sentences tended to be complex and detailed in order to allow
readers to see whether the provision applied to their circumstances before going further into the sentence. Sentences today are typically shorter. The order of the sentence components is dictated by sense and ease of understanding. So, it is often clearer to put the subordinate clause after the main proposition. If the rule can operate in several alternative fact situations, it may be more convenient to set these out after the principal subject and
predicate.

Example Box 12

A police officer may arrest a person if a reputable person reports to the officer that the person has committed an indictable offence.
An elected member of the council shall vacate his or her seat –
(a) when the notice for the election for the council is issued;
(b) if the member fails to attend 3 consecutive meetings of the council, without obtaining the prior permission of the council;
(c) if the member is appointed to a public office;
(d) if, in the case of an appointed member, the appointment is revoked by the Minister.

CONCLUSION

We conclude that legislative drafting in Nigeria has its origin in English practice, imported as part of the colonial legal system. It continues to evolve as it is being developed in the commonwealth.

SUMMARY

In this Unit you have been establishing a framework for the work to come on drafting skills and techniques. You should now have a clearer picture of how current practices have been influenced by the approaches evolved and developed over the last 150 years. In particular, you should understand the influence of Coode’s analysis and system.
You should now know the way legislative drafting developed in the Commonwealth particularly in Nigeria and how that development has influenced the way that we draft today.

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