Editorial Update/Applying partially in force amendments which are then brought further into force over time
Commencing amendments
When revising legislation on legislation.gov.uk we only apply effects that are at least partially in force. If an amendment is not in force for any of its purposes (in other words, if it is still prospective) we do not apply it. See Editorial Principles - Commencement for more information about how legislation is brought into force.
Please note that this article is written from the perspective of "keeping up to date", in other words we are dealing here with legislation that has already been brought up to date and is now hit by new partially in force amendments which are then subsequently commenced by new commencement orders in the latest Point in Time (PiT). In this situation we do not know what the future holds and so we choose to do retained text amendments for partially in force amendments (where this is practical) in order to try not to mislead our users.
This should be contrasted with the alternative perspective of "bringing up to date" legislation which has not been updated for a while (for at least more than 3 months anyway) and where there are several PiTs which we need to do to bring it up to date. In this case, we do know from the TOES data what happens in subsequent PiTs and therefore we do know whether or not partially in force amendments are going to be brought wholly into force later on. Where we know an amendment which is partially in force at an earlier PiT will come wholly into force at a later PiT, then we can edit accordingly since we know that we do not need to retain text. See more about this here.
Amendments that are brought into force by commencement orders
An effect may be brought into force on one date or on multiple dates by one or more Commencement Orders. During the Identify and Record Effects processes we work out the commencement position for every effect we record. This information is then used by the Editorial System to calculate the Points in Time for update, create the tasks for the editor to complete and automatically generate the annotations that give authority to the amendments.
For example, an effect can initially be prospective and may then brought into force for a particular jurisdiction by a Commencement Order at a later date, it may then be brought into force for another jurisdiction at a subsequent later date. Subsequent commencement dates are added automatically to the annotation for the original amendment at the appropriate Point in Time. The system categorises these later tasks as ‘auto annotations’ on the Update Overview page.
When such a task is viewed on the Update Details page, the original textual amendment will be shown as the amendment and the Edit Status will be set to ‘Auto Applied’. There will be a note asking the Update Editor to check that the further commencement details have been added to the annotation correctly. Your task as Update Editor is to check that the annotation now includes the additional date, reference to the additional commencement order and any qualification included in the original effects (e.g. "for E.", "for specified purposes", "in so far as not already in force"). When the amendment is brought fully in force, your task will additionally include editing the original amendment where appropriate to remove retained text.
See, for example the retained text substitution of 2019 c. 5, s. 15(3)(c), which was brought into force by the commencement order S.I. 2022/471, reg. 2(e) on 1/5/2022:
https://www.legislation.gov.uk/ukpga/2019/5/section/15/2022-05-01
S. 15(3)(c) was fully substituted and the annotation updated to include the date and details of the commencement order when the amendment was brought fully into force on 5/12/2022 by S.I. 2022/1095, reg. 4:
https://www.legislation.gov.uk/ukpga/2019/5/section/15/2022-12-05
| WARNING: Sometimes when an amendment which is already partially in force is brought further into force by a commencement order, the existing annotation is left intact rather than being updated, and a new F-note reference and F-note are inserted. This results in a “hanging F-note”, which needs to be resolved as described here. |
Partially in force amendments
Amendments are not always brought wholly into force at once, frequently they are brought into force gradually over two or more points in time (PiTs). An amendment can be brought partially into force in several ways:
- The amendment may be brought into force for only some but not all of its purposes (e.g. it may be in force for the purpose of making secondary legislation);
- The amendment may be brought into force for only a part of its extent or for only a part of the territory to which it applies (not to be confused with a limited extent amendment which will never come into force to the same extent as the affected provision covers);
- Amendments to ranges of provisions or whole Parts, Chapters or Schedules may be brought into force incrementally. So some provisions in the range or Part/Chapter/Schedule may be wholly inserted, substituted or repealed and the remainder may not. Repeals of whole Acts can often be brought into force this way.
Where amendments are only partially in force and we do not know when they are going to be brought wholly into force we do not want to sweep away the existing pre-amendment text straight away when applying repeals and substitutions. Doing so may mislead our end users. Instead we should use the retain text options in XMetaL, so that old and new text remain side by side for substitutions and repealed text is left intact.
An example of partially in force amendments where we certainly do not want to not to sweep away the old text at the first PiT they come into force for specified purposes is provided by amendments made by Policing and Crime Act 2017 (c. 3). The wording of the commencement provision, s. 183(5)(e), of that Act has left us no choice but to give a start date to the whole Act and all the amendments it contains.
http://www.legislation.gov.uk/ukpga/2017/3/section/183
Most of these amendments will not really have been the intended target of this commencement, but we cannot decide this without doing a lot of painstaking research for which we have neither time nor resources. The simplest solution is to say that all the amendments are in force for specified purposes, yet not sweep away the text until we are certain the amendments are brought wholly into force. We’ve done this in 1987 c. 31, s. 58(1):
http://www.legislation.gov.uk/ukpga/1987/31/section/58
The words “the London Fire and Emergency Planning Authority,” (themselves inserted earlier) are substituted by the words “the London Fire Commissioner,” on 31.1.2017 for specified purposes by Policing and Crime Act 2017 (c. 3), s. 183(1)(5)(e), Sch. 2 para. 79. We did a retained text substitution and the old and new words are left side by side with the same footnote reference. The end user can decide which text is relevant to them using the annotation provided and following the hyperlinks it contains.
Applying partially in force amendments
When an amendment is only partially in force (i.e. it is only in force for some but not all of its purposes and/or part of its extent or for only a part of the territory to which it applies), it is dealt with in a different way from a fully in force amendment. For repeals and substitutions, this means carrying them out as retained text amendments: repealed text is shown in square brackets, rather than being fully removed and replaced with dots, and substitutions are shown with both the old and new text in square brackets alongside each other. This is because the repealed/substituted text remains partially in force for specified purposes and/or extent.
For example, see the substitutions of a word and words in S.I. 2001/544, art. 39J for specified purposes on 14.2.2014 (F2 and F3):
The annotations show that the amendments are in force "for specified purposes", i.e.
F2 Word in art. 39J substituted (14.2.2014 for specified purposes) by The Financial Services and Markets Act 2000 (Regulated Activities) (Amendment) Order 2014 (S.I. 2014/366), art. 1(3)(4), 2(14)(a)
When an amendment comes further into force, the annotation gets amended to reflect this (the editorial system generates an auto annotation task which overwrites the existing annotation - which contained the previous commencement details - with a new annotation which contains the new commencement details) and, where necessary, the retained text itself needs to be amended (for example, if we are bringing the amendment fully into force the retained text can be removed leaving just the substituted text), i.e.
F2 Word in art. 39J substituted (14.2.2014 for specified purposes, 1.4.2014 in so far as not already in force) by The Financial Services and Markets Act 2000 (Regulated Activities) (Amendment) Order 2014 (S.I. 2014/366), art. 1(3)(4), 2(14)(a)
Partial repeals and substitutions of ranges will need to be done individually for each provision involved. They will also need to be dealt with individually when it comes to removing the retained text on full commencement (see further detail below).
For partially in force whole provision and higher level substitutions, it isn't always feasible to carry out a retained text amendment (you can read more on some of the reasons why below). In these circumstances, you may carry out the amendment fully at the first PiT and rely on the annotation to tell the story of what’s happened. However, remember that partially in force higher level substitutions are rare and will present a unique set of circumstances each time they arise and you should consult a Review Editor about the appropriate course of action before you start.
Whole Part/Chapter/Schedule partial repeals should be done as retain text repeal of words (e.g. “Part 2”) at heading level and then the opening repeal tag moved to just before the Part/Chapter/Schedule number and the closing repeal tag moved to just before the closing text tag of the final child provision within that Part/Chapter/Schedule.
| WARNING: Sometimes when an amendment which is already partially in force is brought further into force by a commencement order, the existing annotation is left intact rather than being updated, and a new F-note reference and F-note are inserted. This results in a "hanging F-note", which needs to be resolved as described below. |
Situations where text may not be retained for partially in force amendments
Update was carried out before retained text functionality was available in the Editorial System
We are able to retain text for partially in force substitutions and repeals of words and sub-provisions. However, retained text functionality has not always been available in the Editorial System, so it is possible that you may encounter older update where amendments have been made fully despite the amendment being in force for specified purposes only (i.e. text has not been retained). If this is the case, you should amend the annotations as normal for any effects that have already been applied and are coming further into force. You can, however, use the retained text functionality for any new amendments that come partially into force for the first time at a PiT within your update task. If you are not sure, consult a Review Editor.
Update is “bringing the legislation up to date” and we know the amendment will come fully into force at a later Point in Time
As mentioned at the beginning of this page, where your update task is "bringing up to date" legislation which has not been updated for a while (as opposed to keeping it up to date) and there are several PiTs which need to be done to bring it up to date, then we know from the TOES data what is going to happen in subsequent PiTs and therefore we know whether or not a partially in force amendment is going to be brought wholly into force later on down the line. Where this is the case, we do not need to retain text while editing the earlier PiTs and can simply rely on the annotation to tell the story of the amendment's commencement. We know from various user surveys that our users are mainly interested in the latest version of the text and are not really bothered about previous historical versions.
Now, where your "bringing up to date" update only contains a few partially in force substitutions of words, etc, then you may decide that you wish to do these as retained text amendments and then remove the retained text in the later PiT and that's fine. It certainly would not be wrong to do that. But where you potentially have a lot of retained text amendments (e.g. a blanket substitution of words across the whole document), or they are likely to be complicated or involve higher level provisions and so will be time-consuming to deal with, then we would advise treating these amendments in full from the first PiT and not retaining text. If you are not sure which approach to take, please consult a Review Editor.
So if you are bringing a document up to date, and you know that the amendment will come fully into force at a later PiT within your update task, then you do not need to retain text but rather carry out the amendment in full at the first PiT it is partially commenced. This will save time as otherwise the retained text would only need to be undone again at the later PiT when the amendment comes fully into force.
An example of a whole provision substitution that came into force for specified purposes where text wasn't retained (because the amendment came fully into force at the next PiT within the same update task), can be seen in SI 2001/544:
Art. 82 gets substituted for specified purposes on 1/10/2006, and the substitution is carried out in full:
https://www.legislation.gov.uk/uksi/2001/544/article/82/2006-10-01
The amendment comes fully into force at the next PiT, where only the annotation needs to be amended as the substitution has already been carried out in full:
https://www.legislation.gov.uk/uksi/2001/544/article/82/2007-04-06
See below for more detail on the procedure for applying retained text substitutions and repeals.
What happens when an amendment comes further, or fully into force?
| WARNING: Sometimes when an amendment which is already partially in force is brought further into force by a commencement order, the existing annotation is left intact rather than being updated, and a new F-note reference and F-note are inserted. This results in a "hanging F-note", which needs to be resolved as described below. |
When an amendment comes further into force, i.e. it is has already been partially commenced and is brought into force for further specified purposes on another date (but is still not fully in force), the Update Editor just needs to check that the auto-annotation, which details the further commencement, has generated correctly to add the details of the commencement at this PiT to the existing annotation for the amendment - e.g. they should change from:
S. 81 omitted (1.9.2021 for specified purposes) by virtue of Additional Learning Needs and Education Tribunal (Wales) Act 2018 (anaw 2), s. 100(3), Sch. 1 para. 23(4); S.I. 2021/373, arts. 3, 4, 6, 7
To:
S. 81 omitted (1.9.2021 for specified purposes, 1.1.2022 for specified purposes) by virtue of Additional Learning Needs and Education Tribunal (Wales) Act 2018 (anaw 2), s. 100(3), Sch. 1 para. 23(4); S.I. 2021/373, arts. 3, 4, 6, 7; S.I. 2021/1243, art. 3(o)(xxiii)
(The highlighted information should automatically generate, but you will need to add it in if it doesn’t. The information appears if you click on the drop down arrow against the type of effect in the task box).
When an amendment comes fully into force the Update Editor needs to update the amendment in addition to checking the auto-annotation, as follows:
1. Check the auto-annotation has generated correctly, has generated correctly to add the details of the commencement at this PiT to the existing annotation for the amendment - e.g. they should change from:
S. 49(6)(c)-(e) repealed (1.7.2012 for specified purposes) by Localism Act 2011 (c. 20), s. 240(2), Sch. 4 para. 8(6)(b), Sch. 25 Pt. 5; S.I. 2012/1463, art. 5(a)(d) (with arts. 6, 7) (as amended (3.7.2012) by S.I. 2012/1714, arts. 1(1), 2)
To:
S. 49(6)(c)-(e) repealed (1.7.2012 for specified purposes, 22.11.2012 in so far as not already in force) by Localism Act 2011 (c. 20), s. 240(2), Sch. 4 para. 8(6)(b), Sch. 25 Pt. 5; S.I. 2012/1463, art. 5(a)(d) (with arts. 6, 7) (as amended (3.7.2012) by S.I. 2012/1714, arts. 1(1), 2); S.I. 2012/2913, arts. 1(2), 2(b) (with arts. 3-6)
(The highlighted information should automatically generate, but you will need to add it in if it doesn’t. The information appears if you click on the drop down arrow against the type of effect in the task box).
Note: if wording in the system-generated annotation needs to be amended, it will also need to be amended at any subsequent PiTs in your update task, as appropriate.
2. Update the amendments to reflect the fact they have come fully into force – i.e. remove text that has been repealed or substituted:
- For repeals we need to change the ‘retain text’ attribute of the repeal tags (both opening and closing) from true to false, which will change the formatting to a footnote with a dotty line.
- For insertions we don’t need to do anything except check the annotation;
- For substitutions we need to remove the retained text and surrounding repeal tags to leave just the substituted text (which will be surrounded by addition tagging).
Whole Part/Chapter/Schedule partial repeals should have been done as retain text repeal of words (e.g. “Part 2”) at heading level and then the opening repeal tag moved to just before the Part/Chapter/Schedule number and the closing repeal tag moved to just before the closing text tag of the final child provision within that Part/Chapter/Schedule. When the repeal is brought wholly into force we should use the Auto Repeal button in the Table Of Contents to carry out the full repeal. However, before clicking this please double check that there are no other partial repeals in this PiT that you do not want to apply fully as they will all be applied when the Auto Repeal button is activated. If you are unsure, please refer it to a Review Editor or Richard.
Incremental amendments in more detail: dealing with amendments which are only partially in force
Procedure for applying retained text substitutions and repeals of words
A good example of how to deal with partially in force amendments is to be found in 1987 c. 31, s. 38. At PiT 30.9.2003 the amendments to s. 38 are brought into force for a limited extent (for E. only). But they could well have been brought into force for specified purposes and the procedure would be the same.
http://www.legislation.gov.uk/ukpga/1987/31/section/38/2003-09-30?timeline=true
You can examine the TOES data here to give yourselves a better understanding of the situation:
Since the substitutions and repeals are not wholly in force at PiT 30.9.2003 when we apply them we should use the option Substitution retain text or Repeal retain text from the dropdown menu in XMetaL under Legislation - Textual Amendments on the top menu bar. Additions don’t have a retain text option as we just insert the new text in the normal way.
In the case of the substitutions, we should be left with repeal tags around the existing “old” words. If you view the attributes within the opening repeal tag, you will see it contains the attribute RetainText = true. This is what tells the system not to sweep away the words and replace them with an ellipsis or dotty line. The newly substituted words follow the “old” words surrounded by addition tags.
In the case of repeals, we should be left with repeal tags around the repealed words and the repeal should contain the attribute RetainText = true.
In the screen shot below you can see that the repeal in the section heading is showing the attribute RetainText = true. Also, in subsection (1) you can see two retained text substitutions of words.
Removing retained text for wholly in force substitutions and repeals of words
When we move to the next PiT 30.3.2004, we find that there are auto annotations tasks for the further commencement of the amendments to s. 38. These amendments are now commenced 'for W.' or, in other words, because the affected provision only extends to E.W. they are brought wholly into force. Now they are wholly in force we no longer need to retain the text.
http://www.legislation.gov.uk/ukpga/1987/31/section/38/2004-03-30?timeline=true
The auto annotations for further commencement are always marked by the system with a Note in the effects details pages ("This effect has been brought further into force in this point in time. Please check that the new commencement details have been added correctly to the existing annotation.").
When we see these notes against the auto annotation tasks, we should check the TOES data (which can always be downloaded from the Update Overview page) to see how far the amendments have been brought into force at this PiT. Where an amendment is brought wholly into force we should go into the details page for the relevant auto annotation task, check out the xml and remove the retained text.
There are two ways to do this:
- For retained text repeals, we should place the mouse cursor in the opening repeal tag and View - Attribute Inspector (using the toolbar menu or right clicking and selecting "Element attributes" from the dropdown menu) and change the retain text = true attribute to retain text = false. When we check the provision back in it will replace the words or whole provision with 3 dots or a dotty line (as relevant). The screen shot below shows a repeal of words in the section heading that has had its attribute changed to “RetainText=false”:
- For retained text substitutions, we should delete the repeal tags and the old words they contain and leave the new words in their new addition (or substitution) tags. If we just change the attributes here, we will leave dotty lines for the old words and we don't want that as it looks a mess. The screen shot below shows a retained text substitution:
Having done this, we should then preview the provision to ensure our changes have “stuck”. We should also check to see that the annotation has been properly updated with the further commencement details (i.e. that it contains the new date and details of the new commencement order and has not overwritten the previous commencement details, and that no "hanging F-note" has been generated) and then continue with the rest of the update.
When moving on to the Next Step having removed the retained text in a provision, please check that the changes have been carried forward into the next PiT.
Procedure for retaining text for whole provision substitutions
In this example of a partially in force whole provision substitution, new ss. 1-1E of the Representation of the People Act 1985 (c. 50) get substituted for ss. 1, 2 on 6.2.2023 for specified purposes by Elections Act 2022 (c. 37).
We needed to retain the existing ss. 1 by presenting a retained text substitution of the sub-provisions within s. 1:
https://www.legislation.gov.uk/ukpga/1985/50/section/1/2023-02-06
We are not able to create duplicate versions of the same whole provision and therefore needed to present both versions of s. 1 within the same whole provision, by carrying out the retained text substitution on the <ukl:P1para> tagging using the XMetaL "Substitution Retain Text" menu option.
See how the unequal substitution in this amendment was dealt with here.
It may not always be possible to retain text
An example of a more complex partially in force substitution - where we may have expected to retain text but have been forced to carry out the substitution wholly - can be found in 1985 c. 70, s. 21. There are two mutually exclusive very partially in force amendments to s. 21 (which are not limited extent so we cannot resort to concurrent versions), plus the original wholly in force version. We felt obliged to use several explanatory X-notes to try to help readers understand what is going on:
https://www.legislation.gov.uk/ukpga/1985/70/section/21
Where you have a complicated scenario that you feel may not best be dealt with using retained text, please consult a Review Editor.
Amendments to ranges of provisions or whole high level provisions carried out incrementally
Additions of ranges of provisions or whole Parts, Chapters or Schedules which are brought into force incrementally are simple to deal with. We insert everything at once and allow the annotation to tell the story of the commencement over time. But editors should check that the auto annotation task has correctly updated the annotation for each further commencement.
Substitutions of ranges of provisions or whole Parts, Chapters or Schedules which are brought into force incrementally should be dealt with in the same way as additions, i.e. we substitute everything wholesale at the first point in time that any part of the substitution is commenced and allow the annotation to tell the story of this commencement over time. This is not ideal, but it is too much to expect the editor to do otherwise. The TOES data should say exactly which provisions are substituted at each stage and, if the annotation does not satisfactorily explain the situation, it should be changed by the editor and they should inform a Review Editor or Richard so that the TOES data can be corrected.
Repeals of ranges of provisions or whole Parts, Chapters or Schedules are dealt with differently. We do not wish to sweep away text that is still in force. This means that at each stage of the commencement of the high level repeal we should only repeal those provisions whose repeal has been commenced and leave the remainder intact. This approach seems to work in all cases except for the gradual repeal of whole Acts. We need further development work to facilitate this, so if you have a gradually commenced whole Act repeal in your update please refer it to a Review Editor or Richard.
Specific Update Issues
Issue with "Hanging F-note": further commencement annotation fails to overwrite existing F-note annotation
When an amendment which is already partially in force is brought further into force by a commencement order this should result in an auto annotation task which overwrites the existing annotation (which contained the previous commencement details) with a new annotation which contains the new commencement details (i.e. the additional data stored in the IFCO columns in TOES for the new commencement order).
However, sometimes (for various reasons, for example as here because the amendment was done initially as a manual amendment) the auto annotation task fails to overwrite the existing annotation and instead leaves the existing annotation intact and inserts a new F-note reference for the new version of the annotation. This means we are left with two versions of the annotation: (1) the old version of the annotation which is linked to the amendment brackets (or repeal comref) in the text; and (2) the new version of the annotation which is linked to a "hanging F-note" reference at higher level parent number (e.g. Schedule or Part number etc), whole provision number or sub-provision number level.
| Don't forget to check at the highest level if the affected provision for the amendment in TOES is, for example, "words substituted” in “Regulations”; the amendments may have been made at provision level but a “hanging” F-note may have gone in at top level. |
The example below is from 2014 anaw 4, s. 182(1)(d) where a substitution of words has been brought further into force. You can see (ringed in red) a new F1 comref has been inserted at sub-provision (1)(d) level and this points to the new further commencement annotation. The old F2 amendment bracket refs however (ringed in yellow) have not been overwritten and still point to the old version of the annotation (crossed through in yellow). We want the amendment bracket refs to point to the new annotation.
We need to fix this by making the amendment brackets (or repeal comref, as the case may be) point instead to the new annotation.
Method:
1. Check out the affected provision in XMetaL. In this example you can see that the original amendment is a manual amendment and has a different key-id from the new further commencement annotation. That is why the new annotation did not overwrite the old annotation.
2. Find the new version of the further commencement annotation (usually the last <commentaries> tagging at the bottom of the page).
3. Place your cursor in the <commentary> tagging and view its attributes using the attribute inspector.
4. Copy the Commentary id number.
5. Go to the opening amendment bracket for the relevant amendment, place your cursor in the bracket and view its attributes.
6. Paste the new commentary id number over the value next to the CommentaryRef attribute. The amendment will now point to the new annotation.
7. Now find the "hanging F-note" reference (i.e. the commentary ref inserted by the auto annotation task at either provision or sub-provision number level) and delete it. This will remove the "hanging F-note".
8. Check the fragment back in.
There is a slightly different but related issue whereby, even though the auto annotation task has correctly replaced the old version of the annotation with the new version, it has in addition added an unnecessary new F-note comref at parent, provision or sub-provision number level. In the example below an additional F-note ref has been placed at Sch. 2 number level even though the annotation is about an omitted entry further down in the Table. Both the new comref and the amendment brackets point to the correct new version of the annotation:
In this case, we do not need to play about with CommentaryRef ids. We just need to remove the unwanted new comref which is sitting in the Schedule number tagging:
This leaves us with just the amendment brackets pointing to the annotation and therefore only the appropriate F-note refs showing in the text:
Related pages
Approach, errors and troubleshooting: