Legistics
Alternatives to "notwithstanding"
Background
Quite often a legislative text will contain conflicting rules, and it is important to make clear which rule prevails. "Despite" and the other expressions discussed above help to do that. (See also the note on However)
Although "notwithstanding" is still a reasonably well-known word in modern Canadian English - thanks perhaps in part to numerous media mentions of the Charter's "notwithstanding clause" - "despite", "even if" and the others are more current.
"Despite" is a preposition and introduces a noun phrase, and so can replace "notwithstanding" when it introduces a noun phrase.
"Notwithstanding that" introduces a clause rather than a phrase. The clause can be somewhat ambiguous about whether it indicates that its content is the case or merely may be the case. Therefore, legislative counsel should not use "notwithstanding that" to introduce clauses. Instead, legislative counsel should use the appropriate replacement discussed above. ("Even though" can also be ambiguous in the same way as "notwithstanding that"; it is therefore recommended that "even though" be used only when it is clear from the context that what follows is a fact.)
Legislative counsel should be careful not to do a global replacement of "notwithstanding that" without first reviewing every example of those words in the text, however, because "that" can have various different uses and may not be introducing a clause. For example, in "The Minister may enter into agreements referred to in subsection (1) but, notwithstanding that subsection, such an agreement may not.", "that" is a determiner and so "notwithstanding that" cannot be replaced by "even if" or "despite the fact that", although "notwithstanding" can be replaced by "despite".
Recommendation
Legislative counsel should avoid "notwithstanding". Most of the time "notwithstanding" is followed by a noun phrase, and in these cases legislative counsel should use "despite" instead. "Notwithstanding that" is followed by a clause; legislative counsel should instead use one of the following alternatives:
- "even if" - what follows might or might not be the case, depending on the particular situation
- "even though" - what follows clearly is the case
- "despite the fact that" - what follows is the case, but this would not necessarily be clear to the reader
- "whether or not" - same as for "even if", but is the best choice when the legislative counsel do not even know whether what follows is the case or might or might not be the case
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