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 to say: “(as amended ([date]) by …, etc)”.
See an example of an amended annotation here.
See an example on the website: https://www.legislation.gov.uk/ukpga/Eliz2/8-9/67/section/1 (modification to s.1 by S.I. 2020/392, subsequently amended by S.I. 2020/808)
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)”.
See an example of an amended annotation here.
The now obsolete F-note for the ‘amendment to earlier affecting provision’ effect needs to be deleted. The text of the amendment itself also needs to be changed (i.e. the words of the inserted or substituted text), or change the text that gets repealed as the case may be, to reflect how the amendment has been changed. We don’t put new brackets around these additional changes as it’s all covered in our changed annotation.
Note the variation in method for dealing with a textual ‘amendment to earlier affecting provision’. The insertion of an F-note for the amendment (even though it is subsequently deleted) 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. It is not necessary to insert a new I-note or C-note for a non-textual ‘amendment to earlier affecting provision’, we just need to add appended commentary to the end of the original I-note or C-note.
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 and we’d deal with it as shown in the first example 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). Consult a Review Editor if you are not sure.
Scenarios
“Amendment to earlier affecting provision" involving limited extent
Example 1
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 2
“Amendment to earlier commencing SSI”
There are coming into force effects by 2018 SSI0298, 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)”
2018 SSI0298 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 2019 SSI0406:
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 2019 SSI0406 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 The Social Security (Scotland) Act 2018 (Commencement No. 2, Transitory and Saving Provision and Commencement No. 4 and Saving Provision) Amendment Regulations 2019 (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