Difference between revisions of "EU Exit Update Guidance Notes"

Revision as of 10:57, 23 June 2021

What’s going on?

The EU Exit SIs amend UK legislation and retained EU law to make sure it functions on IP completion day (31.12.2020), which is when we finally left the EU.

Some EU law to do with direct CAP payments to farmers was domesticated earlier on exit day (31.1.2020).

The documents amended by the EU Exit SIs are referred to in these notes as “target documents”.

There was an original batch of EU Exit SIs (2018, 2019 and a few early 2020 SIs) that made preparations for a hard exit on exit day. We’ll call these the “original amending EU Exit SIs” and they amend the “target documents”.

During the implementation period (which began on exit day and ended on IP completion day), further EU Exit SIs were made in 2020 — either (1) revoking or amending the earlier original amending EU Exit SIs before they came into force, or (2) themselves making new direct amendments to the target documents on IP completion day — to take account of changing circumstances.

We’ll call this second batch the “second amending EU Exit SIs” (and in some cases these SIs amended each other as well).

So we have a situation whereby amendments to target documents get changed before they come into force on IP completion day. Sometimes those amendments are changed days or months in advance, but most of the time they’re only changed right at the last minute, “immediately before IP completion day”.

TOES

We captured the effects of the original amending EU Exit SIs as normal effects. When we realised that the original effects were themselves being amended by the second amending EU Exits SIs prior to their commencement, we decided to capture this information in the form of knock on effects and amendments to earlier amending provision effects. We also marked original effects which were revoked or completely substituted as not required. This is all explained here:

Amendments to earlier affecting EU Exit SIs before their amendments come into force

We hope this method of capturing the information will help users work out what is going on during the period of time that it’s going to take us to apply all of these 147,000 amendments.

Order of update

However, since we cannot be absolutely certain that we have captured all the knock on amendments and amendments to earlier amending provisions, we think it is best to update all the EU Exit SIs that hit a particular target document first before we go on to update that target document itself.

It also makes sense, given that the EU Exit SIs also amend each other, to try to update those EU Exit SIs themselves in reverse chronological order. I know this will not always be practical, but when you pick up an SI for update please try to take the latest published one first, i.e. do a 2020 one before doing a 2019 one, etc.

If you find, during update, that one of your amending documents has not been updated you can either go and update the amending document first before carrying on, or use the knock on amendment task or amendment to earlier amending provision task to do your amendment.

Exit day and IP completion day

The original batch of EU Exit SIs (2018, 2019 and a few 2020 SIs) stated in their commencement provisions that they were due to come into force on (or in relation to) exit day. Exit day was postponed several times before the withdrawal agreement was reached. Exit day finally happened on 31.1.2020.

2020 c. 1, Sch. 5 para. 1(1) contained a blanket modification to ensure that all EU Exit SIs due to come into force on (or in relation to) exit day had their commencement date switched to IP completion day instead:

https://www.legislation.gov.uk/ukpga/2020/1/schedule/5/paragraph/1

There are a few SIs which still came into force on (or in relation to) exit day (e.g. S.I. 2020/56, which came into force immediately before exit day), but in order to do that they had to expressly disapply 2020 c. 1, Sch. 5 para. 1(1).

S.I. 2020/56, reg. 1(2), for example, says: “Paragraph 1(1) of Schedule 5 to the European Union (Withdrawal Agreement) Act 2020 does not apply to these Regulations.”

https://www.legislation.gov.uk/uksi/2020/56/regulation/1/made

So please note that there are EU Exit SIs which refer to exit day in their commencement provisions, but which really come into force on IP completion day.

However, the second batch of EU Exit SIs made in 2020 after 2020 c. 1 received Royal Assent explicitly state that they come into force on IP completion day.

We changed the IF Dates of all the relevant EU Exit SI effects to 31/12/2020 in TOES and added an appended commentary citing “2020 c. 1, Sch. 5 para. 1(1)”.

Allocating update

You can allocate yourself an EU Exit SI for update from the “EU Exit SIs available for update” list:

https://editorial.legislation.gov.uk/task/update/list/eu-exit-si-update

The list is ordered by priority number of the target documents that they amend (for example, documents in the list with priority number 1 amend 2006 c. 46, our most looked at Act).

As mentioned above allocate the update tasks in reverse chronological order as far as possible, starting with latest EU Exit SIs first for each target document.

Please allocate yourself only 2019 and 2020 documents.

2018 documents will be dealt with by the review editors.

If you cannot allocate or start update because you see the following message then you should email Dean, Rosie and Richard to ask for the initial edit task to be done for you:

“Update cannot be started on this document due to missing 'Initial Edit Tool' task(s)”

Initial edit

If the EU Exit SI you wish to allocate has not been initial edited, then please email Dean, Rosie and Richard to ask them to arrange this for you.

If the EU Exit SI has been initial edited it will have been either online initial edited on the editorial system or offline initial edited on sld.

You can check whether the SI you are working on has been online or offline initial edited by looking at the green Research tasks.

2019 and 2020 EU Exit SIs will have been online initial edited and have I-notes in all their provisions.

The online initial edit tool automatically adds coming into force effects in TOES for the commencements on IP completion day if that is over one month from the date the SI was made. This helps to avoid later version errors.

2018 EU Exit SIs and NI SRs will have been initial edited offline on sld.

2018 EU Exit SIs only contain I-notes for provisions which were originally due to come into force on exit day (which under 2020 c. 1, Sch. 5 para. 1(1), now means they come into force on IP completion day).

2018 EU Exit SIs may need coming into force effects added to TOES before they are updated.

Affected extent research

For the purposes of updating the EU Exit SIs your assumption should be that these are all whole extent amendments, even if the outcome of these amendments is that the final target document eventually only gets amended for EWS or NI rather than UK to take into account the impact of the NI Protocol. So do not worry about the fact that an amending SI states in its EM that it has a narrower territorial application than the SI it amends. Most, if not all, of the EU Exit SIs have UK extent (at least to begin with) regardless of what they say about their application. Given that assumption, you can skip the AER task for these.

However, where the extent (rather than TA) of the amending document is narrower than the extent of the amended document (and we’re expecting this to happen more often when updating the target documents), then you should be on the lookout for limited extent amendments and you should not skip the AER task.

Later version errors starting update

Where an EU Exit SI has been initial edited and it has a start date later than the date of an amendment that hits it, this will cause a “later version error” when you try to start the update task. This can be fixed either by changing the TOES data or by changing the initial edit data. Please email Richard if you get a later version error message.

Update issues

The basic principles for the EU Exit update are set out here:

Applying amendments to earlier EU Exit SI affecting provisions in update

Prosp coming into force effects

Before the date for exit day/IP completion day was settled, we online initial edited some 2019 EU Exit SIs without inserting definite start dates in their commenced provisions. This action allowed us to update those documents. However, it means that their “coming into force” effects in TOES are “prosp” and so will not get applied in online update on IP completion day unless we correct them to add a start date of 31/12/2020. Please check the TOES for your update task to see if it contains coming into force effects with IF Dates like this:

You can check the TOES for your document using this url:

https://editorial.legislation.gov.uk/changes/affected/[type]/[year]/[number]/data.xls?extended=full-with-co

e.g. https://editorial.legislation.gov.uk/changes/affected/uksi/2019/93/data.xls?extended=full-with-co

If you see prosp coming into force effects please refer this to Richard to do a TOES correction before you start your update.

Duplicate I-notes

You should preview the update doc in the first PiT (or the first few PiTs where the doc is commenced on more than one date) to see if the I-notes are duplicated.

Where this has occurred it will need to be corrected by removing the ukl:CommentaryRef tagging for each duplicate I-note ref from each relevant provision before moving to next step. You can check out the main body and then Schedules to do this using the Table of Contents button in the update tool.

You should usually delete the second one, but compare them with the commencement provision and see which best fits.

Be careful where the provision is commenced at sub-provision level as the initial edit task will have added its I-note next to the provision number, whereas the update task will have added one or more duplicate I-notes next to each relevant sub-provision and they all need to be deleted.

To avoid the future production of duplicate I-notes we have agreed that from now on the IP completion day I-notes should take the following consistent form:

Reg. 1 in force at 31.12.2020 on IP completion day, see reg. 1

Reg. 1 in force at 31.12.2020 immediately before IP completion day, see reg. 1

Reg. 1 in force at 31.12.2020 on IP completion day (in accordance with 2020 c. 1, Sch. 5 para. 1(1)), see reg. 1

Reg. 1 in force at 31.12.2020 immediately before IP completion day (in accordance with 2020 c. 1, Sch. 5 para. 1(1)), see reg. 1

You can check out the document at main body or schedule level and use find and replace (Ctrl+F) to correct I-notes to make them consistent.

I-notes still referring to “exit day”

These need to be corrected to add correct date (31.12.2020) and reference to “IP completion day” and be given an appended commentary “; 2020 c. 1, Sch. 5 para. 1(1)” which points the end user to the authority for the switch of its commencement date.

I-notes needed for provisions inserted prior to IP completion day

Where a provision is inserted before an EU Exit SI is commenced on IP completion day then you will need to manually add an I-note for that provision. Where a provision is substituted prior to commencement, you should make sure that it retains its I-note.

Missing I-notes

Where an I-note is missing in a schedule because the online initial edit tool couldn’t cope with the xml structure and has entered schedule “wrapper” effects in TOES, you will need to add the I-note manually in update. The TOES data should also be corrected so add a note to reviewer.

Child provisions revoked immediately before IP completion day should look prospective and their I-notes should be removed

A provision revoked immediately before IP completion day should look prospective and its I-note should be removed. So we need to remember go into the Attribute Inspector in XMetaL to take out its restrict start date and select “Prospective” from the dropdown menu in the Status attribute.

This does not work for revocations of higher level provisions (e.g. Pt. 4) where the status of the revoked provision needs to be “Repealed” rather than “Prospective” to tell the front end to display a single dotty line.

Annotations for knock on amendments

Annotations for knock on amendments currently get constructed by the editorial tool with the IF Date in the wrong position, so this needs to be moved to look like this:

“Words in Sch. 1 para. 14 cross-heading omitted (31.12.2020) by virtue of S.I. 2019/519, Sch. para. 17(2A) (as inserted by The Jurisdiction and Judgments (Family) (Amendment etc.) (EU Exit) (No. 2) Regulations 2019 (S.I. 2019/836), regs. 1, 2(2)(a)); 2020 c. 1, Sch. 5 para. 1(1)”

https://www.legislation.gov.uk/ukpga/1989/41/schedule/1/crossheading/financial-provision-for-child-resident-in-country-outside-england-and-wales

Note that the legislation cited in the type of effect field in TOES does not receive its full title, just the SI number, and does not have a link. We have decided that this is not worth changing.

Amendment to earlier amending provision effects

Because we are aiming to update the later documents first, in most cases the amendments to the earlier amending provisions will already have been applied when you come to copy the amendment text. All you need to do therefore is:

Check that the expected changes have been made in the amendment text and, if so, mark the amendment to earlier amending provision effect/s as applied.
Clean up the text by removing the brackets for those pre-commencement substitutions and insertions or deleting the dotty lines and F-note refs for omissions.
Ensure the appropriate appended commentary for those amendments is added to the main annotation.

For example, this main annotation for a whole provision substitution came out like this:

Sch. 1 para. 14 substituted (31.12.2020) by The Jurisdiction and Judgments (Family) (Amendment etc.) (EU Exit) Regulations 2019 (S.I. 2019/519), reg. 1(1), Sch. para. 17(3) (with reg. 8) (as amended by S.I. 2020/1574, regs. 1, 5(2)); 2020 c. 1, Sch. 5 para. 1(1)

Note that the annotation already contained an appended commentary for the amendment to its Savs provision (reg. 8 was substituted by S.I. 2020/1574, reg. 5(2)). But then we had to add an extra appended commentary to cover the fact that the inserted para. 14 was substituted by S.I. 2019/836, reg. 2(2)(b) before the insertion came into force:

Sch. 1 para. 14 substituted (31.12.2020) by The Jurisdiction and Judgments (Family) (Amendment etc.) (EU Exit) Regulations 2019 (S.I. 2019/519), reg. 1(1), Sch. para. 17(3) (with reg. 8) (as amended by S.I. 2019/836, regs. 1, 2(2)(b) and S.I. 2020/1574, regs. 1, 5(2)); 2020 c. 1, Sch. 5 para. 1(1)

https://www.legislation.gov.uk/ukpga/1989/41/schedule/1/paragraph/14

Also note that we are not bothering to cite full titles for the amending documents here, just SI numbers.

If the expected changes to the amendment text have not been made already, you can either wait for the update of the amending document to be completed or use the “amendment to earlier affecting provision” effect to apply the change yourself, then remove the brackets and add the appropriate appended commentary to the main annotation.

Remember that amendments to earlier higher level amendments may appear in the provision level amendments list.

Fixing links in annotations

You can put the hyperlinks back into an annotation by following the steps laid out below. For example, when doing a whole Act repeal of 2006 c. 2 the links in the appended commentary to the citation “2020 c. 1, Sch. 5 para. 1(1)” did not appear:

Check out the fragment and then copy the annotation from Preview and paste it over the annotation in XMetaL and check in:

On check in, because the annotation xml has no ukl:Citation or ukl:CitationSubref tags, the deployment code sweeps over it and adds links.

This method can be used for any missing links issue, not just missing links in appended commentary.

If you have to check out a provision which already contains an annotation with an appended commentary, be sure to check the annotation’s links after checking it back in and, if necessary, re-fix missing links by pasting plain text over the xml annotation. In the example below the earlier annotation lost some of its links when the second amendment was done and checked in:

Dates in F-notes and C-notes

Where an amendment comes into force on IP completion day you should expect to see the date as “(31.12.2020)”. Where something is in force immediately before IP completion day you should expect to see the date as “(31.12.2020 immediately before IP completion day)”. If your amendment is one of the rare ones that comes into force on 31.12.2020 without mentioning IP completion day, or in other words it comes into force at the beginning of that day, please ensure the date reads “(31.12.2020 before IP completion day)”.

Where two dated amendments are made to a prospective provision on different dates the later one may overwrite the earlier one

Historical versioning only kicks off once a provision initially gets commenced. Thereafter each dated amendment creates a new version. However, before that while the provision is still prosp, it may be amended one or more times without creating a new version. There is only ever one prosp version of a provision and that means that if it gets amended more than once before it comes into force the later amendments may overwrite the earlier amendments. This means that later amendments may appear in an earlier PiT when you come to do update review.

Note to reviewers about amendments to prosp provisions

When you come to review a prospective provision which will come into force in a future PiT please be aware that it will look like this:

The valid date shows the date that the provision comes into force. Below you can see an example of multiple dated amendments to a prosp provision:

Drafting errors in amendments: “By … it is provided that …”

Given the complexity of the amendments and the conditions under which they were drafted, we can expect to see some mistakes when we attempt to apply them. Where we cannot apply them because of such a mistake, rather than simply marking them as not required we should alert the end user to the existence of the failed amendment by inserting an F-note at the appropriate provision or sub-provision number level and use the “By … it is provided that …” annotation formula to explain what the drafters were attempting to do. We should also raise a lex error to the SI Registration team.

For example, in S.I. 2019/680, reg. 11(7)(d) we have done this for the attempted substitution of words by S.I. 2020/646, reg. 12(3):

“Reg. 11(7)(d): By The Over the Counter Derivatives, Central Counterparties and Trade Repositories (Amendment, etc., and Transitional Provision) (EU Exit) Regulations 2020 (S.I. 2020/646), regs. 1(2)(c), 12(3), it is provided that the words “, (z4) and (z5)” are substituted (31.12.2020) for “and (z4)””

https://www.legislation.gov.uk/uksi/2019/680/regulation/11

Please consult a reviewer before resorting to this action.

@@ Line 145: / Line 145: @@
 Where an I-note is missing in a schedule because the online initial edit tool couldn’t cope with the xml structure and has entered <strong>schedule “wrapper” effects</strong> in TOES, you will need to add the I-note manually in update.  The TOES data should also be corrected so add a note to reviewer.
-===Child provisions revoked immediately before IP completion day should look prospective===
+===Child provisions revoked immediately before IP completion day should look prospective and their I-notes should be removed===
-A provision revoked immediately before IP completion day should look prospective.  So we need to remember go into the Attribute Inspector in XMetaL to take out its <strong>restrict start date</strong> and select “<strong>Prospective</strong>” from the dropdown menu in the <strong>Status</strong> attribute.
+A provision revoked immediately before IP completion day should look prospective and its I-note should be removed.  So we need to remember go into the Attribute Inspector in XMetaL to take out its <strong>restrict start date</strong> and select “<strong>Prospective</strong>” from the dropdown menu in the <strong>Status</strong> attribute.