Difference between revisions of "Coronavirus Legislation"

Revision as of 09:04, 7 May 2020

Applying the temporary modifications made by the Coronavirus Act 2020

Basic background

The Coronavirus Act 2020 (c. 7) received Royal Assent on 25.3.2020:

http://www.legislation.gov.uk/ukpga/2020/7/contents/enacted

You can read the explanatory notes to the Bill as introduced to the House of Lords here:

https://publications.parliament.uk/pa/bills/lbill/58-01/110/5801110en.pdf

The Act makes emergency changes to existing legislation by means of temporary modifications. These are temporary because:

The Act (except for specified provisions) expires after two years, see s. 89 (subject to amendment by s. 90 to extend or cut short the life of various provisions or of the whole Act).
The operation of certain affecting provisions (except for those mentioned in s. 88(6)) can be suspended (and subsequently revived) by a relevant national authority by means of regulations more than once if necessary, throughout the period the Act is in force.
The drafter calls them “temporary modifications” and they are expressed as having “effect as if” the text was changed or to be “read as if” the text were changed.

For the purposes of increasing legal certainty we have decided to record these temporary modifications where we can as temporary textual effects rather than non-textuals (which would be our usual practice).

For example, s. 36(1)(b) says: “Section 40 of the National Health Service (Scotland) Act 1978 … has effect as if … in subsection (3), for “medical practitioners” there were substituted “persons”.”

http://www.legislation.gov.uk/ukpga/2020/7/section/36/enacted

We would usually record this as a non-textual “modified”. But in this case we have recorded it as a temp textual effect and we have cited the expiry provisions (ss. 89, 90) in Savs:

Coronavirus Act TOES.png

Update

The temporary modifications have been entered in TOES as textual effects with “(temp.)” in the type effect field. They also each have a note saying “modified” in their Comment for Editor. You can examine the TOES effects here to see what I mean:

https://editorial.legislation.gov.uk/changes/affecting/ukpga/2020/7/data.xls?extended=full

They will appear in the update details pages as normal textual amendments.

Editors should apply them as retained text amendments. This will be fine for most insertions, omissions and substitutions of words, but it may cause presentational issues with substitutions of whole provisions or ranges of sub-provisions. If the end result of such a substitution looks potentially confusing for our end users then please consult with a reviewer to consider the best course of action.

Editors should check that “(temp.)” appears after the type of effect in the annotations.

Editors should change the annotation to read “by virtue of”, rather than just “by”, to indicate that these are not straightforward textual amendments. (We have asked TSO to make an allowance for this in the annotation construction code, but that work may not be ready before we start updating).

Only treat non-textual effects that are explicitly sunsetted as temp. textual amendments. The Coronavirus Acts will expire in 2 years (or earlier) and so we have decided to treat their mods as temp. textuals, but the modifications by other Coronavirus-related documents, unless they are explicitly sunsetted, should still be treated as normal non-textuals.

Examples of non-textual effects to be treated as temporary textual amendments

TOES effect "modified" treated as temp. substitution of words at update stage ( 1977 c. 43, s. 5(1))

Amending provision:

http://www.legislation.gov.uk/ukpga/2020/7/schedule/29/paragraph/2

TOES record:

Coronavirus Act Example 1.png

This effect was captured as a non-textual “modified (temp.)” in TOES because the drafters didn’t give a suitable form of words (e.g. “as if for ‘this’ there were substituted ‘that’”) to confidently hang a temp. textual amendment on. However, on reflection, this effect is simple enough to treat as a temp. textual substitution of words and was changed to a temp. retained text substitution of “3 months” for “4 weeks” during the update stage.

Update instructions for this example:

Carry out a temp. textual substitution of words, change the note type of the annotation from C-note to F-note and re-write the annotation to read:

Words in s. 5(1) substituted (temp.) (26.3.2020) in relation to Rent Act notices to quit given by the landlord during the relevant period by virtue of Coronavirus Act 2020 (c. 7), s. 87(1), Sch. 29 paras. 1, 2(1)(2) (with ss. 88-90)”

Annotation could have used: "substituted (temp.) ([date]) for specified purposes by …”, but extra detail is more helpful.

Final result:

http://www.legislation.gov.uk/ukpga/1977/43/section/5

Retained text substitution of a subsection

We should end up with two subsection numbers, each subsection enclosed by its own set of brackets, as that makes it easier for people to see immediately what’s happened:

So, for example:

[F1 (6) xxxxxxxxxxxxxxxxxx]

See https://editorial.legislation.gov.uk/ukpga/2003/41/section/206A/2020-03-25/revision

Amendment to a form which is an image

http://www.legislation.gov.uk/ssi/2018/155/schedule/2

Examples of non-textual effects that are not explicitly sunsetted (to be treated as normal non-textuals)

S.I. 2020/392 doesn’t have a sunset clause. Reg. 2(4) and the Coronavirus Act 2020, s. 78(3) give rise to a situation whereby provisions which continue in force indefinitely are made in relation to things done within a time-limited period. So we shouldn’t treat this as a temp textual, e.g.

S.I. 2020/392 reg. 7(a) is applied as a non-textual effect:

http://www.legislation.gov.uk/ukpga/1999/29/section/36

There’s another example in S.I. 2020/442 where only the amendments in regs. 15 and 19 are treated as temp. textuals because they are explicitly said to last only until a certain date:

http://www.legislation.gov.uk/wsi/2020/442/regulation/15/made http://www.legislation.gov.uk/wsi/2020/442/regulation/19/made

The other amendments by that SI are treated non-textually because they only apply in certain circumstances, e.g. http://www.legislation.gov.uk/wsi/2020/442/regulation/16/made

Suspended and revived effects

As mentioned at the beginning the Act contains a power to suspend and revive provisions by means of regulations. It also contains some prospective “suspended” effects itself, see Sch. 9 para. 9.

When these regulations come along we will record their effects in TOES as type of effect:

“suspended” “revived”

When we come to apply these effects in update we will apply “suspended” effects as retained text repeals and they should have F-notes.

The “revived” effects should be applied by adding an appended commentary to the end of the existing annotation for the earlier suspension. In other words, insert an F-note commentary for the revived effect and then merge it with the existing F-note commentary for the earlier suspension.

Undoing the temporary amendments when the emergency period ends and the Act expires

Since these textual effects are temporary, they will need to be undone and the text reverted to its previous form when they finally expire. (This is why we usually do such effects as non-textuals).

We think we can get away with leaving the temp insertions and omissions as they are (and just tidy them up during the course of subsequent editing), but unfortunately we will have to do some extra work to deal with the temp substitutions.

At the end of the emergency period we will need to check the TOES data to find the affected documents hit by temp substitutions.

We will then need to raise a legislation correction task on each of those documents and do an insert PiT correction to insert a PiT on the expiry date and a new version of each relevant affected provision in that PiT.

We will then either remove the temp substituted text and its annotation reference or re-instate the pre-emergency version of the provision by copying and pasting the xml from the old pre-emergency version into the new version.