Editorial Update/Blanket Amendments
Overview
A provision may make an amendment or modification that is framed in such a way as to affect legislation generally rather than any specific enactment. We call this a “blanket amendment‟.
An example of a blanket amendment that changes the text of affected legislation might be: “For the words "Supreme Court Act 1981" wherever they occur in any enactment substitute "Senior Courts Act”.
During the identify and record effects tasks we will identify textual blanket amendments. We will identify which legislation is affected by the blanket amendments but we won’t work out and record every provision that needs to be changed as a result.
If you are presented with a “blanket amendment” type of effect you should:
- Read the affecting provision carefully and ensure you are clear on what words need editing and whether there are any exceptions to the amendment (for example, they may not wish that words in legislation titles or citations are to be changed).
- Open the whole Act on legislation.gov.uk and search for the words to be edited, the amendment will usually be a substitution. Make a list of all the affected provisions, it is helpful to add the list to the ‘notes’ against the blanket amendment effect so that the reviewer knows what you have changed.
- Use the Table of Contents to check out the most appropriate level of the Act in to which to carry out your amendment. For example, if there is only one change to one provision required you can check out the individual provision but if there are a lot of amendments you may want to check out a whole Part or even the whole Act.
- Follow the appropriate instructions for the amendment concerned, each time you carry out the amendment you should select the task in the ‘Resource Manager’ window in XMetaL and because you use the same task you will generate the same annotation for all your changes.
- The annotation should read “Word/s in Act substituted ...” or “Word/s in Regulations substituted ...” – the individual provisions do not need to be specified.
- Add a Note for Reviewer to tell them which provisions you have amended.
Example
The Senedd and Elections (Wales) Act 2020 (anaw 1), Sch. 1 para. 5(8)(9) makes two blanket amendments (substitutions of words) throughout the Legislation (Wales) Act 2019 (anaw 4) to change existing references to Acs of the Welsh Assembly to Acts of the new Senedd. Note how the drafter has instructed that the blanket amendment in sub-para. (8) is to be done only after first having applied the amendments by sub-paras. (3) and (7), which omit several existing instances of the words which otherwise would be substituted:
"(8) For “Assembly Act”, in each place where it appears after the amendments in sub-paragraphs (3) and (7) have been made, substitute “Act of Senedd Cymru”.
(9) For “Assembly Acts”, in each place where it appears, substitute “Acts of Senedd Cymru”."
Blanket amendment by The Treaty of Lisbon (Changes in Terminology) Order 2011 (S.I. 2011/1043)
There are some blanket amendments by The Treaty of Lisbon (Changes in Terminology) Order 2011 (S.I. 2011/1043), which you need to be aware of when doing secondary update. It would be helpful if editors could check their secondary update legislation to see if it may be affected by these blanket amendments and, if so, let Richard or another reviewer know so we can carry these amendments through.
In a nutshell, the 2011 Order changes old references to the “European Community” to new references to the “European Union”.
http://www.legislation.gov.uk/uksi/2011/1043/made
Art. 4 substitutes certain non-adjectival uses of the word “Community”, etc. (i.e. references to the European Communities or to the European Community or the European Coal and Steel Community, including references to “the Communities”, “the Community”, “the EC” or “the EEC”).
Art. 5 substitutes a particular phrase wherever it occurs (i.e. for references to “Article 310 of the Treaty of Amsterdam amending the Treaty on European Union, the Treaties establishing the European Communities and certain related Acts” we substitute “Article 217 of the Treaty on the Functioning of the European Union”).
Art. 6 substitutes nine specific adjectival uses of the word “Community” (e.g. changes "Community treaties" to "EU treaties") and if necessary also changes the form of the indefinite article (from "a" to "an").
Arts. 8-10 do the same thing for Welsh legislation.
Please note the exceptions provided for in arts. 3, 4(2), 6(4)(5), 8(3), 9(3), 10(8)(9). In particular, NI Orders in Council mentioned in section 24(5)(c), (e) or (g) of the Interpretation Act 1978 (and any secondary legislation made under them) are excluded*.
*Exception: note that Orders in Council made under the Northern Ireland Act 2000 (c. 1) by the Secretary of State during the suspension of the NI Assembly between 2000 and 2007 do not count as “Northern Ireland legislation” for the purposes of 1978 c. 30, s. 24(5) and are not excluded.
The drafter has provided handy examples of when and when not to change the text in Annex II of the Explanatory Note (Table of Examples as to how this Order will operate on terms in legislation):
http://www.legislation.gov.uk/uksi/2011/1043/note/made
In Annex I of the Explanatory Note the drafter also provided some examples of secondary legislation that is affected by these blanket amendments and we have used this to put some effects in TOES. However, we have not captured all affected secondary legislation and so it would help if editors could check their update document before update starts to see if it may be affected. If it looks like it may be affected, let Richard or another reviewer know so that they can change TOES to add an effect which will then show up in your update timeline. If you spot it after update has been done, then let Richard or another reviewer know so that a correction can be done. I would advise doing a Ctrl+F search across the whole document looking for the following terms:
“Community”
“Communities”
"EC"
“Article 310 of the Treaty of Amsterdam”
We asked the data management team to query the secondary legislation to find other legislation potentially affected by this blanket amendment and we have added their findings into TOES. These entries are marked with a note mentioning “data management query”. But I’m sure we will not have captured everything by this means. Equally, I expect we will have captured “false positives” whose wording has changed between being made and 22.4.2011.
Note on applying The Treaty of Lisbon (Changes in Terminology) Order 2011 blanket amendments that have been captured in TOES so far
Please note that we have provided very general TOES data for the effects created from the drafter’s examples: https://editorial.legislation.gov.uk/changes/affecting/uksi/2011/1043/data.xls?extended=full-with-co&sort=affecting-year-number
For example, the effect below has a very general affecting provision:
| 1995 SI1159 | Blanket amendment | words substituted | E+W+S+NI | 2011 SI1043 | art. 003-6 8-10 | NB This entry taken from examples in EN | art. 002 | 22/04/2011 | wholly in force |
If we look at the affected document for this effect we can see that it contains 4 references to the European Community in the Preamble and regs. 5(5), 10(4). (We would ignore the use of “European Communities” in the reference to the European Communities Act 1972 in the Preamble as it is excluded by art. 3(2)(g) of the 2011 Order).
http://www.legislation.gov.uk/uksi/1995/1159/made
Annotation wording
Because of the general way the TOES data has been entered all the annotations will automatically come out as something like:
Blanket amendment words substituted (22.4.2011) by The Treaty of Lisbon (Changes in Terminology) Order 2011 (S.I. 2011/1043), arts. 2, 3-6, 8-10
Editors should change the annotations of amendments hitting UK and Scottish SIs to:
Word[s] in [affected legislation] substituted (22.4.2011) by The Treaty of Lisbon (Changes in Terminology) Order 2011 (S.I. 2011/1043), arts. 2, 3-6
And editors should change the annotations of amendments hitting Welsh SIs to:
Word[s] in [affected legislation] substituted (22.4.2011) by The Treaty of Lisbon (Changes in Terminology) Order 2011 (S.I. 2011/1043), arts. 2, 8-10
Where "[affected legislation]" is replaced with the word "Regulations", "Order", "Act", etc. as appropriate.
NOTE: If you are adding missed blanket amendments via correction it is fine to refer to the affected provision (e.g. "reg. 3") rather than the whole affected legislation (e.g. "Regulations") in the annotation. But where you are applying the blanket amendment in update you will be using the same update task xml and therefore all the annotations will share the same wording so it makes sense to refer to the whole affected legislation.
Examples
Treaty of Lisbon blanket amendment APPLIED
SI 2002/618: Treaty of Lisbon blanket amendment APPLIED to a reference to "the Community"
S.I. 2006/2078, reg. 4 before the blanket amendment is applied:
https://www.legislation.gov.uk/uksi/2006/2078/regulation/4/2006-08-18
And the same provision after the blanket amendment is applied:
https://www.legislation.gov.uk/uksi/2006/2078/regulation/4/2011-04-22
SI 2008/685: Treaty of Lisbon blanket amendment APPLIED in an amending provision in force prior to 1.12.2009 but still effective on (and after) this date
This WSI contains a reference to "Community legislation" in an amendment to another piece of legislation in Sch. para. 1. Now, even though this amendment came into force on 1.4.2008 which is prior to 1.12.2009, and so you may think it would be excluded under arts. 3(3) or 8(3),we have decided that this is not excluded by art. 8(3) because such amendments are deemed to be "always speaking". The amendment is still effective at 1.12.2009, in other words it continues to amend its target under the "always speaking" presumption until it is revoked. NB This is why the drafters generally don't revoke amending legislation before they change the amended legislation itself since this might result in legal uncertainty and the JCSI, which scrutinises secondary legislation and advises on best practice, would tell them off if they did.
https://www.legislation.gov.uk/wsi/2008/685/2011-04-22
Incidentally, this WSI also contains a reference to "European Community" in its preamble in relation to an earlier designation of the Welsh Ministers and so, again, we have not applied the blanket amendment to this reference.
Treaty of Lisbon blanket amendment should be APPLIED to references to “Community Treaties” but NOT applied to references to “Community Treaty”
The blanket amendment SHOULD be applied to references to “Community Treaties” (plural), which is captured in the amendment wording of S.I. 2011/1043, art. 6. See, for example:
https://www.legislation.gov.uk/uksi/2009/1801/schedule/2/paragraph/11/2011-04-22
The blanket amendment SHOULD NOT be applied to references to “Community Treaty” (singular), which should be considered as an adjectival use of the word “Community” and is not captured by the amendment wording of S.I. 2011/1043, art. 6. See, for example:
https://www.legislation.gov.uk/uksi/1996/1639/article/2/1996-06-26
See S.I. 2011/1043, art. 6:
https://www.legislation.gov.uk/uksi/2011/1043/article/6
Treaty of Lisbon blanket amendment NOT APPLIED
SR 2009/252: Treaty of Lisbon blanket amendment NOT APPLIED to a reference to "Community" in the title of an EU Directive
See the reference to "Directive 2006/11/EC of the European Parliament and of the Council on pollution caused by certain dangerous substances discharged into the aquatic environment of the Community" in SR 2009/252, Sch. 2 para. 4(1):
https://www.legislation.gov.uk/nisr/2009/252/schedule/2/paragraph/4/2009-07-24
SI 2009/1574: Treaty of Lisbon blanket amendment NOT APPLIED to a reference to "Community instrument" in the preamble
https://www.legislation.gov.uk/uksi/2009/1574/introduction
This SI contains a reference to "Community instrument" in the preamble:
These Regulations make provision for a purpose mentioned in section 2(2) of the European Communities Act 1972 and it appears to the Secretary of State that it is expedient for any reference to Community instrument defined in Schedule 1 to be construed as a reference to that instrument as amended from time to time.
This reference was not amended when the blanket amendment was applied, as SI 2011/1043 arts. 3(1) and 8(1) say that the amendments “apply to provisions” contained in Acts and SIs, and it’s arguable that the preamble isn’t a provision since it doesn’t provide for anything, it simply states the powers under which the actual provisions are made and other introductory information.
https://www.legislation.gov.uk/uksi/2011/1043/article/3
https://www.legislation.gov.uk/uksi/2011/1043/article/8
Note that the blanket amendment was applied to a reference to "Community instrument" in reg. 2 though:
https://www.legislation.gov.uk/uksi/2009/1574/regulation/2/2011-04-22
SI 2008/2141: Treaty of Lisbon blanket amendment NOT APPLIED due to the reference relating to an event occurring prior to 1.12.2009
There is a reference in this WSI to "European Community" in the first line of its preamble. This, however, is excluded from the Lisbon Treaty blanket amendment by virtue of art. 8(3) (since this is a WSI; it would be excluded by art. 3(3) if it was a UKSI or SSI) because the designation of the Welsh Ministers in relation to CAP is an event which has already happened prior to 1.12.2009 and is merely described here. The preamble reads:
"The Welsh Ministers are designated for the purposes of section 2(2) of the European Communities Act 1972 in relation to the common agricultural policy of the European Community."
The drafter's footnote to the preamble tells us: "The Welsh Ministers are designated in relation to matters specified in Schedule 3 to the European Communities (Designation) (No.3) Order 2006 (S.I. 2005/2766)."
https://www.legislation.gov.uk/wsi/2008/2141/introduction/2011-04-22
Art. 3(3) and 8(3) both say: "The amendments made by this Part do not apply to a reference that relates only to things done before 1 December 2009 (the date on which the Treaty of Lisbon entered into force) and do not affect any other reference in its application to things done before that date."
So we do not need to apply the blanket amendment here and I would guess that most references found in the preambles are similarly descriptive of earlier designations of ministers and therefore also would not require changing. Note also that SI 2011/1043 arts. 3(1) and 8(1) say that the amendments “apply to provisions” contained in Acts and SIs, and it’s arguable that the preamble isn’t a provision since it doesn’t provide for anything, it simply states the powers under which the actual provisions are made and other introductory information.
As always, if in doubt, please consult.
Otherwise, S.I. 2008/2141 only contains references to "Community aid" and "Community rules", adjectival uses of "Community" which fall outside of art. 10 and do not need to be changed. "Community rules" is separately substituted by S.I. 2011/1042, Sch. 2 para. 2:
https://www.legislation.gov.uk/uksi/2011/1043/schedule/2/paragraph/2
SI 2002/618: Treaty of Lisbon blanket amendment NOT APPLIED to a defined term because EU now forms part of its definition
In SI 2002/618, "the Community" was defined in reg. 2 as both the EEC (now EU) and the EEA, so in this case this is a special use of the term "the Community" which is wider than just the EEC:
https://www.legislation.gov.uk/uksi/2002/618/regulation/2/2011-04-22
The blanket amendment was not applied to this defined term, but note that the reference to "European Community" within the definition was amended to "European Union".
See also reg. 11, where the specially defined term "the Community" is not amended, but the reference to "European Community" after "Official Journal of the" is changed to "European Union":
https://www.legislation.gov.uk/uksi/2002/618/regulation/11/2011-04-22
SSI 2005/316: Treaty of Lisbon blanket amendment NOT APPLIED to the defined term “specified Community provision”
SI 2011/1043, art. 6(5) says:
(5) Paragraph (2) does not apply to the term “specified Community provision” where used in an enactment containing a definition of that term.
https://www.legislation.gov.uk/uksi/2011/1043/article/6
The term "specified Community provision" is defined in SI 2005/316, reg. 2:
https://www.legislation.gov.uk/ssi/2005/316/regulation/2/2005-06-30
The reference to "Community" within the title of schedule 1 ("Specified Community Provisions") was not amended by the blanket amendment (but note there was another reference within the schedule to the term "Community" on its own, that was amended):
https://www.legislation.gov.uk/ssi/2005/316/schedule/1/2011-04-22