But

Recommendation

Drafters should not be reluctant to use the word "but".

Discussion

"And" is sometimes used where "but" should be, perhaps in honour of a past legislative drafting taboo. As a result, the extra information that "but" conveys is missing and the reader has to guess whether "and" means "and in addition" or "and in contrast". One example of such loose usage is, "The report shall be delivered and not necessarily post-marked."

Sometimes "and" can cause unwanted ambiguity that using "but" would have avoided. For example, in "A candidate may protest an election result after the ballots have been counted and before the result has been announced", it is unclear whether the candidate can protest only once or on two occasions. The same sentence with "but" is unambiguous: "A candidate may protest an election result after the ballots have been counted but before the result has been announced".

"But" is used to introduce a contrast to what precedes it or to introduce information that is unexpected. Its meaning is roughly "and in contrast", "and yet" or "except that", depending on the situation; in most instances, it can be used as a concise expression of these notions. (See also the note on However.)

Like "and" and "or", "but" in general links two members of any syntactic category: two clauses, or two verb phrases, or two noun phrases, and so on.[1] It is the use of "but" to conjoin clauses that is most relevant to legislative drafting. Nonetheless, drafters should always bear in mind that conjoining other syntactic elements may be possible as well.

Examples

The following is a non-exhaustive list of the many kinds of syntactic elements that "but" can link (the linked elements are shown in italics):

Clauses:

Main:

• A first offence is punishable by a fine, but a subsequent offence is punishable by imprisonment.
• The offence is punishable by a fine, but it is not punishable by imprisonment.

Subordinate clauses:

• If the judge decides that the information is relevant but that its disclosure would injure national security or endanger the safety of persons, the information must not be disclosed.

Relative clauses:

• "agency of a foreign state" means any legal entity that is an organ of the foreign state but that is separate from the foreign state.

Verb phrases:

• The Board is an institution of public government but is not an agent of Her Majesty.-

Preposition phrases:

• …a notation that the person arrived at the departure gate with a ticket but without a reservation for the flight.

Adjectives:

• … exchange arrangements based on stable but adjustable par values….

[1] Unlike "and" and "or", however, which can link a series of the same syntactic element, "but" can only link two members. For example, a provision could not read "The Minister may issue a licence, but may not make it subject to conditions, but may impose a fee for the licence."

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