Editorial Update/Amendment to Earlier Affecting Provision
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“Amendment to earlier affecting provision” effects
Amendments to Commencement Orders are usually captured before we have applied the I-notes and they are dealt with through changes to the TOES data and Appended Commentary, so shouldn’t appear very often during Editorial Update. Elsewhere, however, “Amendment to earlier affecting provision” effects can appear for both textual non-textual amendments during Editorial Update.
Non-textual “Amendment to earlier affecting provision” effects usually occur with a start date after the IF Date of the original amendment and they should be dealt with as described below.
Update Editors should particularly look out for “amendments to earlier affecting provisions” which may result in a change to the text, which usually come into force before or simultaneously with the original textual amendment. The approach to dealing with these effects is also described below.
Original Amendment is Non-textual
“Amendment to earlier affecting provision” effects usually happen to non-textual amendments where their start date is after the IF Date of the original amendment. In this case, we would normally just add an appended commentary to the end of the original I-note or C-note annotation text to say: “(as amended ([date]) by …, etc)”. To make sure that the details for this amendment don't "trickle" back into the earlier PiT, you should insert a new C-note for the “Amendment to earlier affecting provision” effect, copy the details of the original amendment from the existing annotation into this new C-note adding “as amended (date) by ...” to merge with the text of the new annotation. You should also change the commentary ref attribute in the amendment bracket from its current id to the id of the newly inserted annotation, so it points to that new annotation instead. You can delete the original annotation reference for the amendment, as it is no longer needed, although it should be removed automatically when you check the provision back in if you have amended the CommentaryRef attribute of the F-note reference to point to the new annotation.
See an example on the website: https://www.legislation.gov.uk/ukpga/Eliz2/8-9/67/section/1
S. 1 modified (E.) (4.4.2020) by The Local Authorities and Police and Crime Panels (Coronavirus) (Flexibility of Local Authority and Police and Crime Panel Meetings) (England and Wales) Regulations 2020 (S.I. 2020/392), regs. 1, 13 (with reg. 2(4)) (as amended (1.8.2020) by The Local Authorities and Police and Crime Panels (Coronavirus) (Flexibility of Local Authority and Police and Crime Panel Meetings) (England and Wales) (Amendment) Regulations 2020 (S.I. 2020/808), regs. 1, 2(4))
Original Amendment is Textual
“Amendment to earlier affecting provision” effects may happen to textual amendments where their start date is dated before or on the same date as the IF Date of the original amendment (i.e. they change the amendment while it’s still prospective). The start date should have been set to the same date as the original amendment in TOES, so the two dates coincide with each other. During update we would first carry out the original amendment and then insert an F-note for the "amendment to earlier affecting provision" and copy and paste its details as an appended commentary to the end of the original annotation (but this time we don’t mention the date), using the format “(as amended by …, etc)”.
We occasionally get changes to textual amendments after they have come into force, but these should be treated with caution as the drafters have probably also drafted a direct effect to the target item of legislation as well as changing the affecting document and we probably haven’t noticed this while entering TOES. However, probably due to drafting errors, it does happen occasionally. There may also be situations where a subsequent amendment is made to an affecting provision that doesn't result in a textual amendment to the original amendment, however the annotation will still need to be amended.
Carrying out the amendment
1. If the amendment does make a textual change to the original amendment, the text of the amendment itself needs to be changed (i.e. the words of the inserted or substituted text), or the text that gets repealed needs to be changed as the case may be, to reflect how the amendment has been changed. Do a manual edit of the text you are amending - not as an amendment (which would generate square brackets and an annotation), but by adjusting the tagging as needed and pasting in or removing any text. We don’t put new brackets around these additional changes as it’s all covered in our changed annotation.
2. Insert a new F-note for the "amendment to earlier affecting provision" effect, then:
- If the start date of the subsequent amendment is the same as the original amendment, make sure you have carried out the original amendment first (which will be at the same PiT), and then you can copy the details from the new F-note into the existing annotation for the original amendment adding "as amended by ... " to merge with the text of the new annotation. Once the annotations have been merged, the now obsolete F-note reference for the "amendment to earlier affecting provision" effect needs to be deleted.
- If the start date of the subsequent amendment is after the original amendment, you will be working in a later PiT than the one in which the original amendment was carried out and you will need to deal with it slightly differently to make sure that the details for this amendment don't "trickle" back into the earlier PiT. After you have inserted the new F-note for the “Amendment to earlier affecting provision”, you should copy the details of the original amendment from the existing annotation into this new F-note adding "as amended (date) by ... " to merge with the text of the new annotation. You should also change the commentary ref attribute in the amendment bracket from its current id to the id of the newly inserted annotation, so it points to that new annotation instead. You can delete the original annotation for the amendment, as it is no longer needed, although it should be removed automatically when you check the provision back in if you have amended the CommentaryRef attribute of the F-note reference to point to the new annotation.
3. Check the amendment back in. If you preview the provision at this stage, you can check the annotation has formatted correctly and that any annotations that should have been removed have been. If you are working in a later PiT than that of the original amendment, you should also check the previous PiT, which should show the annotations in their original form, before the amendment to earlier affecting provision occurred.
For example:
Start date of the original amendment and the "amendment to earlier affecting provision" are the same
Sch. 3 substituted (27.10.2017) by The Public Water Supplies (Scotland) Amendment Regulations 2017 (S.S.I. 2017/281), reg. 1(1), sch. 2 (as amended by The Public and Private Water Supplies (Miscellaneous Amendments) (Scotland) Regulations 2017 (S.S.I. 2017/321), regs. 1, 3(3)(a)(b))
N.B. The date of the subsequent amendment is not included in the annotation
Start date of the original amendment is earlier than the "amendment to earlier affecting provision"
Words in Sch. 3 inserted (5.10.2015) by The Single Use Carrier Bags Charges (England) Order 2015 (S.I. 2015/776), arts. 1(c)(ii)(d), 17 (as amended (21.5.2021) by The Single Use Carrier Bags Charges (England) (Amendment) Order 2021 (S.I. 2021/598), arts. 1(2), 3)
N.B. The date of the subsequent amendment is included in the annotation
4. You will see in the preview that the amended annotation will not have all the hyperlinks enabled. To rectify this, you will need to check the provision out again, copy the plain text from your preview and paste it over the existing annotation text and then check it back in again. The system will then add in all the links, which you can check in preview.
For more detail see the first example in the Scenarios below (subsequent amendments are after the start date of the original amendment, and the dates for these subsequent amendments have been included in the annotation. Note that the example also shows how to deal with subsequent amendments for limited extent).
Note:
1. The variation in method for dealing with a textual or non-textual "amendment to earlier affecting provision". It is not necessary to insert a new I-note or C-note for a non-textual "amendment to earlier affecting provision" as we just add appended commentary to the end of the original I-note or C-note. Where the original amendment is textual, however, the insertion of an F-note for the subsequent amendment will ensure that the commentary that is appended to the original amendment annotation will show from this PiT onwards, making it clearer that there has been a textual amendment at this PiT. However, this F-note can be deleted again once the new details have been merged into the original annotation where you are dealing with a subsequent amendment with the same start date as that of the original amendment. Where the subsequent amendment is made after the original amendment has come into force, the newly inserted F-note supersedes the original F-note and the original F-note is deleted once the annotation details have been merged. This ensures that the new details do not "trickle" back into the previous PiT.
2. The subsequent amendment may not alter the original amendment textually, in which case you should follow steps 2-4 and you won't need to make any amendments to the text. See an example here.
Scenarios
“Amendment to earlier affecting provision" involving limited extent
Example 1 - amendment to earlier temporary insertion of sub-provisions
On 25.3.2020, 1977 c. 42, s.3(4A)-(4F) were temporarily inserted by 2020 c. 7, Sch. 29 para. 2(3) (note this is a modification being treated as a temporary insertion in accordance with the Coronavirus legislation guidance).
“S. 3(4A)-(4F) inserted (temp.) (25.3.2020) by virtue of Coronavirus Act 2020 (c. 7), s. 87(1), Sch. 29 para. 2(3) (with ss. 88-90)”
Subsequently, the original amending provision 2020 c. 7, Sch. 29 para. 2(3) was amended by S.I. 2020/914, reg. 3 on 28/8/2020 for E. as follows:
The amendment of this earlier affecting provision was recorded in an “amendment to earlier affecting provision” effect against the affected provision 1977 c. 42, s.3(4A)-(4F), generating this update task:
To carry out this amendment, the inserted text from the amending provisions S.I. 2020/914, reg. 3(3)(c)(i)(ii) and (iii) was copied and pasted into the correct place in s. 3(4A)(4C) and (4F), not as an amendment (which would generate square brackets and an annotation), but by adjusting the tagging as needed and pasting in the text:
https://legislation.gov.uk/uksi/2020/914/regulation/3/made#regulation-3-3-c
Then a new commentary was inserted and made to read:
“S. 3(4A)-(4F) inserted (temp.) (25.3.2020) by virtue of Coronavirus Act 2020 (c. 7), s. 87(1), Sch. 29 para. 2(3) (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)(3)(c) (with reg. 4))”
Then the commentary ref attribute in the amendment bracket for the insertion of s. 3(4A)-(4F) was changed from its current id to the id of the newly inserted commentary, so it points to that new annotation instead.
Finally, the original commentary reference was deleted for the inserted commentary as it’s no longer needed.
https://www.legislation.gov.uk/ukpga/1977/42/section/3/2020-08-28
Example 2 - amendment to earlier temporary substitution of words
On 26.3.2020, there was a whole extent temporary substitution of words in 1988 c.50 (note this is a modification being treated as a temporary substitution of words in accordance with the Coronavirus legislation guidance).
https://www.legislation.gov.uk/ukpga/1988/50/section/21/2020-03-26
“(b) the landlord or, in the case of joint landlords, at least one of them has given to the tenant not less than [F2two months’] [F2three months’] notice …”
“Words in s. 21(1)(b) substituted (temp.) (26.3.2020) by virtue of Coronavirus Act 2020 (c. 7), s. 87(1), Sch. 29 paras. 1, 7(a) (with ss. 88-90)”
This temporary substitution was subsequently amended to “six months’” for W. on 24.7.2020 by S.I. 2020/778, via an “amendment to earlier affecting provision” effect. The annotation was amended as follows:
https://www.legislation.gov.uk/ukpga/1988/50/section/21/2020-07-24
“(b) the landlord or, in the case of joint landlords, at least one of them has given to the tenant not less than [F2two months’][F2three months’ in relation to a dwelling-house in England and six months’ in relation to a dwelling-house in Wales] notice …”
Words in s. 21(1)(b) substituted (temp.) (26.3.2020) by virtue of Coronavirus Act 2020 (c. 7), s. 87(1), Sch. 29 paras. 1, 7(a) (with ss. 88-90) (as amended (W.) (24.7.2020) by The Coronavirus Act 2020 (Assured Tenancies and Assured Shorthold Tenancies, Extension of Notice Periods) (Amendment) (Wales) Regulations 2020 (S.I. 2020/778), regs. 1(2), 2(3)(a))
In the text of the amending provision (S.I. 2020/778, reg. 2(3)(a)), the drafter actually wrote the following when amending the affecting provision (2020 c. 7, Sch. 29 paras. 1, 7(a)):
“(3) In paragraph 7— (a) in sub-paragraph (a), after ““three months’”” insert “in relation to a dwelling-house in England and “six months’” in relation to a dwelling-house in Wales”;”
So there’s now actually two substitutions going on, one for E. and one for W., but to do a limited extent substitution on top of the retained text substitution could have looked very confusing for the end user, so the temporarily substituted text was expanded to make the situation plain.
The substituted text finally coincides again for E. and W. when it’s changed to “six months’” for E. on 28.8.2020:
https://www.legislation.gov.uk/ukpga/1988/50/section/21/2020-08-28
“(b) the landlord or, in the case of joint landlords, at least one of them has given to the tenant not less than [F2two months’][F2six months’] notice …”
Words in s. 21(1)(b) substituted (temp.) (26.3.2020) by virtue of Coronavirus Act 2020 (c. 7), s. 87(1), Sch. 29 paras. 1, 7(a) (with ss. 88-90) (as amended (W.) (24.7.2020) by The Coronavirus Act 2020 (Assured Tenancies and Assured Shorthold Tenancies, Extension of Notice Periods) (Amendment) (Wales) Regulations 2020 (S.I. 2020/778), regs. 1(2), 2(3)(a) and as further 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)(7)(a) (with reg. 4))
Example 3 - amendment to earlier temporary substitution of a sub-provision
On 26.3.2020, 1996 c. 52, s.143E(3) was temporarily substituted by 2020 c. 7, Sch. 29 para. 9 (note this is a modification being treated as a temporary substitution in accordance with the Coronavirus legislation guidance).
https://www.legislation.gov.uk/ukpga/1996/52/section/143E/2020-03-26
On 28.8.2020, S.I. 2020/914, reg. 3(2)(9)(a)(b) amends the original amending provision Sch. 29 para. 9 for E., and this was captured as an "amendment to earlier affecting provision" effect and applied to 1996 c. 52 like this:
https://www.legislation.gov.uk/ukpga/1996/52/section/143E/2020-08-28
On 29.9.2020, S.I. 2020/1044, reg. 12(2) further amends the original amending provision Sch. 29 para. 9 for W., and this was captured as an "amendment to earlier affecting provision" effect and applied to 1996 c. 52 like this:
https://www.legislation.gov.uk/ukpga/1996/52/section/143E/2020-09-29
Example 4 - amendment to a temporary omission of words where the subsequent amendment is not textual (but relates to the temporary period for which the amendment has effect)
See 1996 c. 52, where words in s. 128(4) are omitted temporarily by virtue of Coronavirus Act 2020 (c. 7), s. 87(1), Sch. 29 paras. 1, 8(a) (with ss. 88-90) for a "relevant period" as defined in 2020 c. 7, Sch. 29 para. 1. The "relevant period" gets amended on 29.9.2020, 31.3.2021 and 1.6.2021 (separately for E. and for W.). These subsequent amendments were captured as "amendment to earlier affecting provision" effects and applied by merging the original amendment details into the newly inserted F-note details at each PiT, as per the instructions above.
The annotation for the original amendment on 26.3.2020 is:
Words in s. 128(4) omitted (temp.) (26.3.2020) by virtue of Coronavirus Act 2020 (c. 7), s. 87(1), Sch. 29 paras. 1, 8(a) (with ss. 88-90)
https://www.legislation.gov.uk/ukpga/1996/52/section/128/2020-03-26
On 29.9.2020, there was amendment to Sch. 29 para. 1 for W., which was dealt with by inserting a new F-note for this "amendment to earlier affecting provision" effect, merging in the text from the original amendment, adding "(as amended (W.)" and removing any superfluous effect information from the annotation, to result in the following text:
Words in s. 128(4) omitted (temp.) (26.3.2020) by virtue of Coronavirus Act 2020 (c. 7), s. 87(1), Sch. 29 paras. 1, 8(a) (with ss. 88-90) (as amended (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 (with reg. 17))
Note: the original annotation text that was copied into the new annotation and the additional words that needed to be added are highlighted in red.
On 31.3.2021, there was a further amendment to Sch. 29 para. 1, this time separately for E. and W. resulting in two "amendment to earlier provision effects" (one for the each jurisdiction), so two F-notes were inserted and one of these was selected to become the new annotation, the contents were merged and the obsolete second F-note reference was deleted. Then the contents of the old annotation were merged into this as follows (note the addition of "and" (highlighted in red) when the two new annotations were merged):
Words in s. 128(4) omitted (temp.) (26.3.2020) by virtue of Coronavirus Act 2020 (c. 7), s. 87(1), Sch. 29 paras. 1, 8(a) (with ss. 88-90) (as amended: (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 (with reg. 17)) and (31.3.2021) by The Coronavirus Act 2020 (Residential Tenancies: Protection from Eviction) (Amendment) (England) Regulations 2021 (S.I. 2021/284), regs. 1(2), 2 and The Coronavirus Act 2020 (Residential Tenancies: Extension of Period of Protection from Eviction) (Wales) Regulations 2021 (S.I. 2021/377), regs. 1(2), 2)
https://www.legislation.gov.uk/ukpga/1996/52/section/128/2021-03-31
Subsequently on 30.6.2021, there was another amendment to Sch. 29 para. 1 for W.
Words in s. 128(4) omitted (temp.) (26.3.2020) by virtue of Coronavirus Act 2020 (c. 7), s. 87(1), Sch. 29 paras. 1, 8(a) (with ss. 88-90) (as amended: (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 (with reg. 17)) and (31.3.2021) by The Coronavirus Act 2020 (Residential Tenancies: Protection from Eviction) (Amendment) (England) Regulations 2021 (S.I. 2021/284), regs. 1(2), 2 and The Coronavirus Act 2020 (Residential Tenancies: Extension of Period of Protection from Eviction) (Wales) Regulations 2021 (S.I. 2021/377), regs. 1(2), 2) and (W.) (30.6.2021) by The Coronavirus Act 2020 (Residential Tenancies: Extension of Period of Protection from Eviction) (No. 2) (Wales) Regulations 2021 (S.I. 2021/708), regs. 1(2), 2)
This resulted in a fully merged annotation for all the subsequent amendments at 30.6.2021. You can follow the merging of the annotations at each PiT on the timeline (you will see that the details of each subsequent amendment don't "trickle" back into the previous PiT, and that the hyperlinks are all enabled).
https://www.legislation.gov.uk/ukpga/1996/52/section/128
“Amendment to earlier commencing [legislation]”
See the coming into force effects by S.S.I. 2018/298, reg. 2, which have resulted in I-notes in the provisions of 2018 asp 9:
https://www.legislation.gov.uk/ssi/2018/298/regulation/2
“S. 3 in force at 22.10.2018 by S.S.I. 2018/298, reg. 2(1)(b) (with reg. 3)”
S.S.I. 2018/298 contains savings and transitory provisions in reg. 3:
https://www.legislation.gov.uk/ssi/2018/298/regulation/3/2018-10-22
These savings and transitional provisions get amended by S.S.I. 2019/406:
https://www.legislation.gov.uk/ssi/2018/298/regulation/3/2019-12-10
This results in “amendment to earlier commencing S.S.I. 2018/298” effects by S.S.I. 2019/406 being added to TOES:
During update we then need to add an appended commentary to the end of the original I-note annotation to tell the users that the savings and transitional provisions have changed:
https://www.legislation.gov.uk/asp/2018/9/section/3/2019-12-10
S. 3 in force at 22.10.2018 by S.S.I. 2018/298, reg. 2(1)(b) (with reg. 3) (as amended (10.12.2019) by S.S.I. 2019/406, regs. 1, 2(2))
“Suspension of earlier affecting provision” effects
For a description of how to deal with suspended effects during Editorial Update, see:
Coronavirus Legislation - Suspended and revived effects
“Expiry of earlier affecting provision” effects
For a description of how to deal with suspended effects during Editorial Update, see:
Coronavirus Legislation - Applying "expiry of earlier affecting provision" effects
"Savings for effects of ..." and "transitional provisions for effects of ..."
"Savings [or transitional provisions] for effects of ..." types of effect occur where savings (or transitional provisions) are subsequently added to an existing amendment. Rather than automatically overwriting the original existing annotation the editorial tool may insert a new C-note auto annotation for this type of effect, for example:
Existing annotation for the original effect
“S. 3 applied (with modifications) (22.2.2020 for all purposes except in respect of infant formula and follow-on formula manufactured from protein hydrolysates and 22.2.2021 in so far as not already in force) by The Infant Formula and Follow-on Formula (Wales) Regulations 2020 (S.I. 2020/89), regs. 1(1)(2), 4(7)(a), Sch. 2 para. 6”
Newly inserted auto annotation for the “savings for effects of ...” type of effect
“S. 3 savings for effects of S.I. 2020/89, regs. 2-4 (16.9.2021) by The Infant Formula and Follow-on Formula (Wales) (Amendment) Regulations 2021 (S.I. 2021/955), reg. 1(2), Sch. (with savings in reg. 5(4)(5), Sch. 4 para. 26(1)(2)”
However, what we want to end up with here is a merging of the original existing annotation with an appended commentary for the savings added to the end of the text of that annotation, for example:
“S. 3 applied (with modifications) (22.2.2020 for all purposes except in respect of infant formula and follow-on formula manufactured from protein hydrolysates and 22.2.2021 in so far as not already in force) by The Infant Formula and Follow-on Formula (Wales) Regulations 2020 (S.I. 2020/89), regs. 1(1)(2), 4(7)(a), Sch. 2 para. 6 (with savings in reg. 5(4)(5), Sch. 4 para. 26(1)(2) (as inserted (16.9.2021) by S.I. 2021/955, reg. 2(2), Sch.))”
The text of the existing C-note should be copied from the Preview and used to overwrite the new C-note and the appended commentary should be added (if this has been included as a Comment in TOES, you can copy it from there). The existing C-note reference should then be deleted from its position within the <ukl:pnumber> tagging, so that the new C-note replaces it:
By replacing the old C-note with the new one, it will avoid the new C-note details from trickling back into the earlier version (which would happen if you just added the appended commentary to the existing annotation). See, for example:
https://www.legislation.gov.uk/ukpga/1990/16/section/3
Related Pages
Annotation Conventions - Merging annotations and other amendments to annotations