Part of CRLP Guidance and Training for Drafters
In this lesson
- use is for provisions that operate directly in law
- avoid false imperatives in constitutive drafting
- handle tense by identifying the legally relevant point in time
Is belongs to a different drafting job from must.
That distinction becomes obvious once operation of law and contravention are kept separate.
Use “is” where the law acts directly
Some provisions do not tell a person to do anything. They change the law directly.
That includes provisions which:
- repeal or amend enactments
- establish bodies or offices
- commence legislation
- define terms
- deem one thing to count as another
- validate, revoke, or otherwise alter legal position by direct statement
These are not instructions waiting to be obeyed. They take effect because the law states the effect.
Avoid false imperatives
A clause such as “The 1924 Act shall be repealed” is not improved by modernising it to “must be repealed”.
That still treats the provision as if it were imposing a duty on some unstated actor. If the legal effect is the repeal itself, the better form is to say so directly: “The 1924 Act is repealed.”
The point is not style. The point is structural honesty.
False imperative
The Farming Act 1924 must be repealed.
Direct legal effect
The Farming Act 1924 is repealed.
Present tense does not mean every event is present
Legislation is often described as always speaking, but that does not require every element in every sentence to be expressed as if it exists only in the present moment.
The practical question is: at what point is the legal question being tested?
From that point, some relevant events may already have happened. A notice may already have been served. A time limit may already have expired. A reply may already have been given. Where sequence matters, the drafting must make that sequence visible.
Draft from the decision point
It helps to imagine the exact point at which a reader, official, or court asks whether the rule applies.
Then ask:
- what facts exist at that point?
- which earlier events need to be completed already?
- does present-tense wording blur that sequence?
If it does, the cure is not to abandon the always-speaking principle. The cure is to draft the temporal relationship clearly.
Operation of law still has conditions
Even a direct rule of law may depend on timing conditions.
A commencement provision may take effect on a specified date. A repeal may occur only on a triggering event. A definition may operate only for the purposes of a particular Part. These are still condition-and-effect structures, but the effect itself is direct legal effect rather than a conduct rule.
Self-check
Use these prompts to test whether the drafting point is clear before you move on.
1Why is “must be repealed” usually the wrong form for a repeal provision?
Because a repeal provision is normally not imposing a duty on a person. It changes the law directly by operation of law, so the provision should state that direct effect.
2How does the always-speaking principle affect tense choices?
It encourages drafting from the point at which the legal question is asked, but it does not prevent the drafter from making earlier events explicit where sequence matters.