Difference between revisions of "Coronavirus Legislation"

Revision as of 12:22, 16 October 2021

Applying the temporary modifications made by Coronavirus legislation

This policy applies, as appropriate, to effects of: the Coronavirus Act 2020 (c. 7); the Coronavirus (Scotland) Act 2020 (asp 7); the Coronavirus (Scotland) (No. 2) Act 2020 (asp 10); any subordinate legislation made under those Acts; and any other legislation (primary or secondary) clearly designated by the legislature as being Coronavirus-related (which would usually be indicated by the inclusion of the word “Coronavirus” in the title). If you are not sure whether this policy applies to the effects of the legislation you are dealing with, please consult a Managing Review Editor.

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.

Note: do not assume that all modifications made by coronavirus legislation are temporary - see below.

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:

Editorial 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).

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

Examples

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

See also S.I. 2020/442 where only the amendments in regs. 15, 20, 21 and 23 (see reg. 19) are treated as temp. textuals because they are explicitly said to last only until a certain date.

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

Retained text substitution of a subsection (temp.)

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 http://www.legislation.gov.uk/ukpga/2003/41/section/206A

Amendment to a form which is an image (temp.)

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

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.

Examples of “suspension of earlier affecting provision” effects

Example 1 https://www.legislation.gov.uk/ukpga/1988/50/section/8/2020-08-28

Words in s. 8(3A)(a) substituted (temp.) (26.3.2020) by virtue of Coronavirus Act 2020 (c. 7), s. 87(1), Sch. 29 paras. 1, 6(a)(i) (with ss. 88-90) (which affecting provision is suspended (E.) (28.8.2020) by The Coronavirus Act 2020 (Residential Tenancies: Protection from Eviction) (Amendment) (England) Regulations 2020 (S.I. 2020/914), regs. 1(2), 2(c) (with reg. 4))

Example 2 https://editorial.legislation.gov.uk/changes/affected/uksi/2015/620/data.xls?extended=full-with-co

https://editorial.legislation.gov.uk/task/update/step/uksi/2015/620/2020-08-28 https://editorial.legislation.gov.uk/uksi/2015/620/schedule/2020-08-28/revision

The most recent version of the annotation from PiT 28/08/2020 for the amendments by Sch. 29 para. 12(1)(c)(d) which are suspended reads as follows:

Sch. Form 3: in the notes to para. 5, in the third bullet point, words “3 months” substituted for “1 month” (temp.) (26.3.2020) by virtue of Coronavirus Act 2020 (c. 7), s. 87(1), Sch. 29 paras. 1, 12(1)(c) (with ss. 88-90) (which amending provision is suspended (E.) (28.8.2020) by The Coronavirus Act 2020 (Residential Tenancies: Protection from Eviction) (Amendment) (England) Regulations 2020 (S.I. 2020/914), regs. 1(2), 2(e) (with reg. 4))

Sch. Form 3: in the notes to para. 5, in the fourth bullet point, words "earlier than 3 months from the date on which this notice is served" substituted for "before the date this notice is served" (temp.) (26.3.2020) by virtue of Coronavirus Act 2020 (c. 7), s. 87(1), Sch. 29 paras. 1, 12(1)(d) (with ss. 88-90) (which amending provision is suspended (E.) (28.8.2020) by The Coronavirus Act 2020 (Residential Tenancies: Protection from Eviction) (Amendment) (England) Regulations 2020 (S.I. 2020/914), regs. 1(2), 2(e) (with reg. 4))

See also the other amendments which reference Sch. 29 para. 1:

Sch. Form 3: in the notes to para. 5, in the first bullet point, words “3 months” substituted for “2 months” (temp.) (26.3.2020) by virtue of Coronavirus Act 2020 (c. 7), s. 87(1), Sch. 29 paras. 1, 12(1)(a) (with ss. 88-90) (as amended (E.) (28.8.2020) by The Coronavirus Act 2020 (Residential Tenancies: Protection from Eviction) (Amendment) (England) Regulations 2020 (S.I. 2020/914), regs. 1(2), 3(2) (with reg. 4))

Sch. Form 3: in the notes to para. 5, in the second bullet point, words “3 months” substituted for “2 weeks” (temp.) (26.3.2020) by virtue of Coronavirus Act 2020 (c. 7), s. 87(1), Sch. 29 paras. 1, 12(1)(b)(i) (with ss. 88-90) (as amended (E.) (28.8.2020) by The Coronavirus Act 2020 (Residential Tenancies: Protection from Eviction) (Amendment) (England) Regulations 2020 (S.I. 2020/914), regs. 1(2), 3(2) (with reg. 4))

Sch. Form 3: in the notes to para. 5, in the second bullet point, words “three months” substituted for “two months” (temp.) (26.3.2020) by virtue of Coronavirus Act 2020 (c. 7), s. 87(1), Sch. 29 paras. 1, 12(1)(b)(ii) (with ss. 88-90) (as amended (E.) (28.8.2020) by The Coronavirus Act 2020 (Residential Tenancies: Protection from Eviction) (Amendment) (England) Regulations 2020 (S.I. 2020/914), regs. 1(2), 3(2) (with reg. 4))

The reason we do it like this is because the recent suspensions and amendments only apply to E. and the original amendments were E.W. Also, the suspended amending provisions may be revived in future.

Example 3 https://www.legislation.gov.uk/ukpga/1985/68/section/83

See the wording of annotations for the amendments to s. 83(3) and (6), where the affecting provisions are both amended and part suspended and the appended commentaries have been merged (for E. and for W. on different dates):

S. 83(3) omitted (temp.) (26.3.2020) by virtue of Coronavirus Act 2020 (c. 7), s. 87(1), Sch. 29 paras. 1, 3(a) (with ss. 88-90) (which affecting provisions are amended and part suspended (E.) (28.8.2020) by The Coronavirus Act 2020 (Residential Tenancies: Protection from Eviction) (Amendment) (England) Regulations 2020 (S.I. 2020/914), regs. 1(2), 2(a), 3(2) (with reg. 4) and amended and part suspended (W.) (29.9.2020) by The Coronavirus Act 2020 (Residential Tenancies Protection from Eviction) (Wales) Regulations 2020 (S.I. 2020/1044), regs. 1(2), 3, 7 (with reg. 17))

Words in s. 83(6) substituted (temp.) (26.3.2020) by virtue of Coronavirus Act 2020 (c. 7), s. 87(1), Sch. 29 paras. 1, 3(e) (with ss. 88-90) (which affecting provisions are amended and part suspended (E.) (28.8.2020) by The Coronavirus Act 2020 (Residential Tenancies: Protection from Eviction) (Amendment) (England) Regulations 2020 (S.I. 2020/914), regs. 1(2), 2(a), 3(2) (with reg. 4) and amended and part suspended (W.) (29.9.2020) by The Coronavirus Act 2020 (Residential Tenancies Protection from Eviction) (Wales) Regulations 2020 (S.I. 2020/1044), regs. 1(2), 3, 7 (with reg. 17))

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

Since the non-textuals being applied as temporary 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.

Applying "expiry of earlier affecting provision" effects

The Coronavirus (Scotland) Act 2020 (asp 7), sch. 3 para. 6 expired on 29.9.2020 by virtue of The Coronavirus (Scotland) Acts (Early Expiry of Provisions) Regulations 2020 (S.S.I. 2020/249), regs. 1, 2(a)(i). The temporary modifications made by this provision to The Secure Accommodation (Scotland) Regulations 2013 (S.S.I. 2013/205), which were applied as temporary textual amendments, therefore needed to be removed. For example:

The “expires” effects can be dealt with during update in the same way as a straightforward repeal (i.e. dotty line the provision).

The “expiry of earlier affecting provision” effects have a Comment telling the editor simply to remove the brackets, text and annotation for the now expired temp mods.

Previous version of amended provision prior to expiry of amending provision:

https://legislation.gov.uk/ssi/2013/205/regulation/7/2020-04-07

Version of amended provision once expiry of the amending provision commences:

https://legislation.gov.uk/ssi/2013/205/regulation/7/2020-09-29

Note that the annotation also needed to be amended at the previous PiT by the Review Editor:

Reg. 7(6) inserted (temp.) (7.4.2020) by virtue of Coronavirus (Scotland) Act 2020 (asp 7), s. 17(1), sch. 3 para. 6(3)(b) (with ss. 11-13, sch. 3 para. 6(5)) (which affecting provision expires (29.9.2020) by virtue of The Coronavirus (Scotland) Acts (Early Expiry of Provisions) Regulations 2020 (S.S.I. 2020/249), regs. 1, 2(a)(i))

Method for application of “expiry of earlier affecting provision” effects:

1. Update Editor removes the temporary textual amendment to restore the original text and marks the expiry effect as applied (or removes the temporary non-textual annotation). Update Editor leaves the expiry C-note in place for the review editor to use later.
2. Update Editor submits for review.
3. Review Editor checks that the text and amendment brackets (or the non-textual annotation) have been removed correctly and the original text restored:

4. Review Editor views the provision in website preview and uses the timeline to go back to the previous version:

5. Review Editor finds the annotation for temporary amendment and clicks “Edit”:

6. Review Editor adds the appended commentary to the annotation (using the expiry C-note wording) and saves it by clicking "Update":

7. Review Editor then checks out provision to remove the expiry C-note, checks in and publishes update.

Coronavirus legislation modifications that are not treated as temporary

Where the effects of provisions are not expressly stipulated by drafters to be temporary, the effects of coronavirus legislation are not to treated as (temp.), even where the legislation contains an expiry provision:

For example, see amendments made by Coronavirus (Scotland) (No.2) Act 2020 (asp 10) to Housing (Scotland) Act 1987 (c. 26) s. 33B.

If you are not sure whether the effects you are dealing with are temporary, consult a Review Editor.

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-<blockquote>6. <strong>Review Editor</strong> adds the appended commentary to the annotation and saves it by clicking "Update":</blockquote>
+<blockquote>6. <strong>Review Editor</strong> adds the appended commentary to the annotation (using the expiry C-note wording) and saves it by clicking "Update":</blockquote>
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-<blockquote>7. <strong>Review Editor</strong> then publishes update.</blockquote>
+<blockquote>7. <strong>Review Editor</strong> then checks out provision to remove the expiry C-note, checks in and publishes update.</blockquote>
 ==Coronavirus legislation modifications that are not treated as temporary==