Consequences, Validity, and Workable Conditions

Part of CRLP Guidance and Training for Drafters

One of the most useful drafting questions is also one of the shortest: what if not?

Ask it repeatedly.

Test the clause in both directions

Do not stop once you know what happens when the condition is met.

Also ask:

• what happens if the condition is not met?
• what happens if the person does not do what the law requires?
• what happens if the person does what the law forbids?
• what happens if the person chooses not to do what the law permits?

These questions matter because readers do not experience legislation only in its successful case. They also need to understand failure, breach, non-application, and procedural dead ends.

Consequences are often elsewhere

The immediate sentence may not contain the full answer.

A duty may matter because another provision creates an offence. A procedural step may matter because another provision makes a later decision obligatory only after that step has been taken. A public body’s failure to comply may matter because judicial review becomes available.

That means local sentence drafting and wider legal architecture must be read together. A neat sentence with no intelligible consequence behind it is not yet a complete drafting solution.

Some “must” clauses are really about validity or applicability

This is where many awkward provisions reveal their true structure.

Consider:

• An application must be in the prescribed form.
• An appeal must be lodged within 14 days.

These look like ordinary obligations, but the practical question is often not punishment for breach. The real issue may be whether the decision-maker is obliged to consider the application or appeal at all.

When that is the true legal point, a drafter should consider whether the provision should say so more directly.

The second version shows the legal consequence more openly. It tells the reader why the form matters.

Ask who decides

A condition may be grammatically complete and still be unusable in practice.

When reading a condition, ask:

• who decides whether it is satisfied?
• when is that decision taken?
• what material is available to the decision-maker?
• can an ordinary reader tell what counts as meeting the condition?

Some vagueness is unavoidable. Drafting is not about eliminating all uncertainty from language. It is about making the uncertainty workable within the legal context.

Workable vagueness is different from hidden vagueness

A term may still be acceptable if context, practice, and decision-making structure make its application manageable.

The problem is not merely that a concept has blurred edges. The problem is that the provision leaves the reader unable to tell who applies it, how it is applied, or what follows from the answer.

That is why a drafter should test a condition against real use. An apparently simple phrase can fail if it does not guide the people who must rely on it.

Practical review method

When you revise a clause, run this sequence:

1. State the intended legal effect.
2. State the conditions for that effect.
3. State what happens when those conditions are not met.
4. Identify who decides whether they are met.
5. Check whether the consequence belongs in this clause, a linked clause, or both.

That review often uncovers gaps which are invisible when the drafter focuses only on sentence polish.