Coronavirus Legislation

Applying the temporary modifications made by Coronavirus legislation

This policy applies, as appropriate, to effects of: the Coronavirus Act 2020 (c. 7); the Coronavirus (Scotland) Act 2020 (asp 7); the Coronavirus (Scotland) (No. 2) Act 2020 (asp 10); any subordinate legislation made under those Acts; and any other legislation (primary or secondary) clearly designated by the legislature as being Coronavirus-related (which would usually be indicated by the inclusion of the word “Coronavirus” in the title). If you are not sure whether this policy applies to the effects of the legislation you are dealing with, please consult a Managing Review Editor.

Basic background

The Coronavirus Act 2020 (c. 7) received Royal Assent on 25.3.2020:

http://www.legislation.gov.uk/ukpga/2020/7/contents/enacted

You can read the explanatory notes to the Bill as introduced to the House of Lords here:

https://publications.parliament.uk/pa/bills/lbill/58-01/110/5801110en.pdf

The Act makes emergency changes to existing legislation by means of temporary modifications. These are temporary because:

The Act (except for specified provisions) expires after two years, see s. 89 (subject to amendment by s. 90 to extend or cut short the life of various provisions or of the whole Act).
The operation of certain affecting provisions (except for those mentioned in s. 88(6)) can be suspended (and subsequently revived) by a relevant national authority by means of regulations more than once if necessary, throughout the period the Act is in force.
The drafter calls them “temporary modifications” and they are expressed as having “effect as if” the text was changed or to be “read as if” the text were changed.

Note: do not assume that all modifications made by coronavirus legislation are temporary - see below.

For the purposes of increasing legal certainty we have decided to record these temporary modifications where we can as temporary textual effects rather than non-textuals (which would be our usual practice).

For example, s. 36(1)(b) says: “Section 40 of the National Health Service (Scotland) Act 1978 … has effect as if … in subsection (3), for “medical practitioners” there were substituted “persons”.”

http://www.legislation.gov.uk/ukpga/2020/7/section/36/enacted

We would usually record this as a non-textual “modified”. But in this case we have recorded it as a temp textual effect and we have cited the expiry provisions (ss. 89, 90) in Savs:

Editorial Update

The temporary modifications have been entered in TOES as textual effects with “(temp.)” in the type effect field. They also each have a note saying “modified” in their Comment for Editor. You can examine the TOES effects here to see what I mean:

https://editorial.legislation.gov.uk/changes/affecting/ukpga/2020/7/data.xls?extended=full

They will appear in the update details pages as normal textual amendments.

Editors should apply them as retained text amendments. This will be fine for most insertions, omissions and substitutions of words, but it may cause presentational issues with substitutions of whole provisions or ranges of sub-provisions. If the end result of such a substitution looks potentially confusing for our end users then please consult with a reviewer to consider the best course of action.

Note that, if you carry out a whole document retained text repeal, you may need to use the timeline resolver to add the retained text repeal PiT into the individual provisions within the document, to make sure that the PiT appears in each provision. Otherwise, when the temporary repeal is undone when the affecting provision expires or is repealed, the temporary modification may disappear from the individual provisions within the document, see example below.

Editors should check that “(temp.)” appears after the type of effect in the annotations.

Editors should change the annotation to read “by virtue of”, rather than just “by”, to indicate that these are not straightforward textual amendments. (We have asked TSO to make an allowance for this in the annotation construction code, but that work may not be ready before we start updating).

Note: Only treat non-textual effects that are explicitly sunsetted as temporary textual amendments. The Coronavirus Acts will expire in 2 years (or earlier) and so we have decided to treat their modifications as temp. textuals, but the modifications by other Coronavirus-related documents, unless they are explicitly sunsetted, should still be treated as normal non-textuals. See examples.

Examples

Non-textual effects that are not explicitly sunsetted (to be treated as normal non-textuals)

S.I. 2020/392 doesn’t have a sunset clause. Reg. 2(4) and the Coronavirus Act 2020, s. 78(3) give rise to a situation whereby provisions which continue in force indefinitely are made in relation to things done within a time-limited period. So we shouldn’t treat this as a temp textual, e.g.

S.I. 2020/392 reg. 7(a) is applied as a non-textual effect:

http://www.legislation.gov.uk/ukpga/1999/29/section/36

See also S.I. 2020/442 where only the amendments in regs. 15, 20, 21 and 23 (see reg. 19) are treated as temp. textuals because they are explicitly said to last only until a certain date.

The other amendments by that SI are treated non-textually because they only apply in certain circumstances, e.g. http://www.legislation.gov.uk/wsi/2020/442/regulation/16/made

Retained text substitution of a subsection (temp.)

We should end up with two subsection numbers, each subsection enclosed by its own set of brackets, as that makes it easier for people to see immediately what’s happened:

So, for example:

[F1 (6) xxxxxxxxxxxxxxxxxx]

See http://www.legislation.gov.uk/ukpga/2003/41/section/206A

Amendment to a form which is an image (temp.)

http://www.legislation.gov.uk/ssi/2018/155/schedule/2

Temporary whole document retained text repeal

On 7.4.2020, SSI 2016/346 temporarily ceased to have effect, so a whole document retained text repeal was carried out:

https://www.legislation.gov.uk/ssi/2016/346/introduction/2020-04-07

The affecting provision for this temporary effect was repealed on 27.5.2020:

https://www.legislation.gov.uk/asp/2020/7/schedule/6/paragraph/4

Note that the PiT for the temporary retained text repeal that was carried out on the whole document is present in each provision, because the timeline resolver was used to add it in, so that it is still accessible from each provision after the text was restored on 27.5.2020:

https://www.legislation.gov.uk/ssi/2016/346/regulation/1/2020-04-07

https://www.legislation.gov.uk/ssi/2016/346/regulation/2/2020-04-07

Suspended and revived effects

As mentioned at the beginning, the Act contains a power to suspend and revive provisions by means of Regulations. It also contains some prospective “suspended” effects itself, see Sch. 9 para. 9.

When these Regulations come along we will record their effects in TOES as type of effect:

“suspended”

“revived”

When we come to apply these effects in update we will apply “suspended” effects as retained text repeals and they should have F-notes.

The “revived” effects should be applied by adding an appended commentary to the end of the existing annotation for the earlier suspension. In other words, insert an F-note commentary for the revived effect and then merge it with the existing F-note commentary for the earlier suspension.

Examples of “suspension of earlier affecting provision” effects

Example 1 https://www.legislation.gov.uk/ukpga/1988/50/section/8/2020-08-28

Words in s. 8(3A)(a) substituted (temp.) (26.3.2020) by virtue of Coronavirus Act 2020 (c. 7), s. 87(1), Sch. 29 paras. 1, 6(a)(i) (with ss. 88-90) (which affecting provision is suspended (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), 2(c) (with reg. 4))

Example 2 https://www.legislation.gov.uk/ukpga/1985/68/section/83

See the wording of annotations for the amendments to s. 83(3) and (6), where the affecting provisions are both amended and part suspended and the appended commentaries have been merged (for E. and for W. on different dates):

S. 83(3) omitted (temp.) (26.3.2020) by virtue of Coronavirus Act 2020 (c. 7), s. 87(1), Sch. 29 paras. 1, 3(a) (with ss. 88-90) (which affecting provisions are amended and part suspended (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), 2(a), 3(2) (with reg. 4) and amended and part suspended (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, 7 (with reg. 17))

Words in s. 83(6) substituted (temp.) (26.3.2020) by virtue of Coronavirus Act 2020 (c. 7), s. 87(1), Sch. 29 paras. 1, 3(e) (with ss. 88-90) (which affecting provisions are amended and part suspended (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), 2(a), 3(2) (with reg. 4) and amended and part suspended (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, 7 (with reg. 17))

“Continuation of earlier affecting provision” effects

During update, the editorial tool inserts an auto-annotation for “continuation of earlier affecting provision” effects. However, we do not want to keep this separate annotation in addition to the existing annotation for the original effect, we need to merge the two annotations by adding an appended commentary (based on text of this auto-annotation) to the end of the existing annotation for the original effect of the format “(which affecting provision is continued until [date] by [amending legislation details])”. Once the appended commentary has been added, we can then remove the auto-annotation for the “continuation of earlier affecting provision” effect, for example:

https://www.legislation.gov.uk/ukpga/1965/49/section/23

Auto-annotation that was generated for the “continuation of earlier affecting provision” effect:

S. 23(1) continuation of earlier affecting provision 2020 c. 7, Sch. 13 para. 11 (24.3.2022) by The Coronavirus Act 2020 (Alteration of Expiry Date) (Scotland) Regulations 2022 (S.S.I. 2022/40), regs. 1, 2(a)

The text that has been highlighted below was added to the annotation for the original amendment, surrounded by brackets and with the text "which affecting provision is continued until 24.9.2022":

S. 23(1) extended (temp.) (26.3.2020) by Coronavirus Act 2020 (c. 7), s. 87(2), Sch. 13 para. 11 (with ss. 88-90, Sch. 13 para. 15); S.I. 2020/361, reg. 2(a) (which affecting provision is continued until 24.9.2022 by The Coronavirus Act 2020 (Alteration of Expiry Date) (Scotland) Regulations 2022 (S.S.I. 2022/40), regs. 1, 2(a))

The auto-annotation was then removed.

“Repeal of earlier affecting provision” effects

Treat these in the same way as an “expiry of earlier affecting provision” effect. See below for details on how to apply an “expiry of earlier affecting provision” effect.

For “Revocation of earlier affecting provision” effects that are not related to Coronavirus Legislation, see Amendment to Earlier Affecting Provision - “Revocation of earlier affecting provision” effects.

For an example of the application of a “repeal of earlier affecting provision” effect in 2020 asp 7, see:

https://www.legislation.gov.uk/asp/2002/13/section/10/2020-04-07

https://www.legislation.gov.uk/asp/2002/13/section/10/2020-05-27

Undoing the temporary amendments when the emergency period ends and the Act expires

Since the non-textuals being applied as temporary textual effects are temporary, they will need to be undone and the text reverted to its previous form when they finally expire. (This is why we usually do such effects as non-textuals). [Note that there is an option to alter the expiry date of the provisions and continue these temporary modifications. Where the drafters have chosen to do that we will enter a "continued" effect in TOES which will show as a C-note annotation in the relevant provision.]

Originally we thought we would remove the temporary effects by means of correction tasks, but we have now decided that it will be simpler to remove these effects by adding "expiry of earlier affecting provision" effects by 2020 c. 7, s. 89 to TOES and removing them as part of the update task in a similar manner to the method used for the early expiry of certain provisions by regulations made under 2020 c. 7, s. 90 (see the next section).

Since we have already cited "(with ss. 88-90)" (which are the provisions connected with expiry, altering the expiry date and suspending and reviving provisions in the interim) in the annotations for the temporary effects, I don't think we need to be too prolix when we add our final appended commentary. I think we just need a specific link to 2020 c. 7, s. 89, so we should append the following form of words to the annotation in the previous version, once we have restored the text in the latest version:

"(and which affecting provision expires (25.3.2022) by virtue of Coronavirus Act 2020 (c. 7), s. 89)"

Note: If nothing has happened in between the temporary modification being made two years ago and its expiry now (e.g. there have been no amendments made to it and no suspensions, partial expiries or revivals of it), then you can drop the "and" and just put "(which affecting provision expires (25.3.2022) by virtue of Coronavirus Act 2020 (c. 7), s. 89)".

Expiry, continuation and repeal of affecting provisions in 2020 c. 7

The expiry of the affecting provisions have been recorded as “expires” effects, and these are are applied just like a repeal during update (i.e. for full expiry the text gets dotty lined in the usual way), for example:

https://www.legislation.gov.uk/ukpga/2020/7/schedule/26/2021-12-09

Applying "expiry of earlier affecting provision" effects

On 7.4.2020, The Coronavirus (Scotland) Act 2020 (asp 7), sch. 3 para. 6 made temporary modifications to regs. 5, 7 and 8 of The Secure Accommodation (Scotland) Regulations 2013 (S.S.I. 2013/205), which were applied as temporary textual amendments in accordance with our policy on applying the temporary modifications made by Coronavirus Legislation.

On 29.9.2020, The Coronavirus (Scotland) Act 2020 (asp 7), sch. 3 para. 6 expired by virtue of The Coronavirus (Scotland) Acts (Early Expiry of Provisions) Regulations 2020 (S.S.I. 2020/249), regs. 1, 2(a)(i).

The temporary modifications made by this provision to The Secure Accommodation (Scotland) Regulations 2013 (S.S.I. 2013/205), which had been applied as temporary textual amendments, therefore needed to be removed to restore the text to its previous form. The expiry of the original affecting provision was recorded with an "expires" effect, and the resulting amendments to the provisions that had been previously amended by the original affecting provision were recorded with "expiry of earlier affecting provision" effects:

The “expires” effect was treated as a straightforward repeal during update (i.e. the provision was dotty lined):

The “expiry of earlier affecting provision” effects included a comment telling the editor simply to remove the brackets, text and annotation for the now expired temp mods, to restore the text, so during update the text was reverted to its previous form at the PiT when the expiry of the earlier affecting provision came into force, i.e.:

https://legislation.gov.uk/ssi/2013/205/regulation/7/2020-09-29

The previous version of the amended provision still contains the temporary textual amendment and now includes an appended commentary detailing the expiry of the earlier affecting provision, as detailed below:

https://legislation.gov.uk/ssi/2013/205/regulation/7/2020-04-07

Note that the annotation needed to be amended at this PiT, to add the details for the expiry of the original affecting provision:

Reg. 7(6) inserted (temp.) (7.4.2020) by virtue of Coronavirus (Scotland) Act 2020 (asp 7), s. 17(1), sch. 3 para. 6(3)(b) (with ss. 11-13, sch. 3 para. 6(5)) (which affecting provision expires (29.9.2020) by virtue of The Coronavirus (Scotland) Acts (Early Expiry of Provisions) Regulations 2020 (S.S.I. 2020/249), regs. 1, 2(a)(i))

Method for application of “expiry of earlier affecting provision” effects:

1. The “expiry of earlier affecting provision” effect will have been auto-applied with a C-note in your update task under the "Auto-annotations" heading on your update overview page. You will need to go into the task and preview the provision so that you can copy the expiry C-note wording from the provision preview for use in the appended commentary to the original amendment at the previous PiT later. Note: You will be removing this C-note in the next step, so it is important that you copy the text first. Once the amendment has been carried out, this C-note should NOT be left in place.

2. Check the provision out in XMetaL and restore the text to its previous form by removing the brackets and F-note reference for a temporary textual amendment (and any inserted or substituted in text where appropriate) or by removing the C-note reference for a non-textual temporary amendment, then remove the expiry C-note reference, check the provision back in and mark the expiry effect as applied.

Note: a temporarily inserted whole provision will need to be dotty lined so that users can still access the temporary whole provision from the ToC. The dotty-lined provision should include an F-Note reference with the annotation detailing the temporary insertion as amended with the details from the expiry C-note. We can dotty line provisions by carrying out a manual amendment or just by replacing the text with a dotty line and adding an appended commentary containing the details of the expiry in the annotation (amending the existing annotation from the original insertion means that the appended expiry details will trickle back into the previous PiT). For example: https://www.legislation.gov.uk/asp/2010/8/section/65A/2022-10-01 The text inside the `ukl:P1para` tags was replaced with a dotty line, i.e. ". . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .", with F-note reference before the section number including details of the temporary insertion and appended commentary for the expiry of the earlier affecting provision. For higher level provisions such as a Schedule, we can use a workaround to carry out the repeal, also making sure that an appropriately worded annotation (containing the details of the temporary amendment and the expiry) is included, for example: https://www.legislation.gov.uk/ukpga/1978/23/part/9A/2022-09-25 Also note that temporarily inserted sub-provisions do not need to be dotty lined, as the provision will still appear in the ToC, therefore temporarily inserted sub-provisions can be removed to restore the text of the provision.

3. Once you have restored the original text, view the provision in website preview and use the timeline to go back to the previous version:

4. Find the annotation for the temporary amendment in that version and click “Edit” to use the edit annotation function:

5. Add the appended commentary to the annotation (using the expiry C-note wording copied earlier) and save it by clicking "Update":

6. Double check that you have restored the text correctly and removed the expiry C-note successfully.

7. If the temporarily amended provision is prospective and has no earlier version, just check out in XMetaL, restore the original text by removing the brackets and F-note reference for a temporary textual amendment (and any inserted or substituted in text where appropriate) or by removing the C-note reference for a non-textual temporary amendment, then remove the expiry C-note, check back in and mark the expiry effect as applied. No further action is needed.

Expiry with savings

These should be dealt with by simply adding an extra appended commentary for the saving to the appended commentary mentioning the expiry. For example, see 1982 c. 45, s. 3:

https://www.legislation.gov.uk/ukpga/1982/45/section/3/2020-04-07

Example of removal of non-textual temporary modification

1977 c. 43, s. 5(1) - C-notes for original modification and expiry of earlier affecting provision effect removed from latest version (PiT 25.3.2022):

https://www.legislation.gov.uk/ukpga/1977/43/section/5/2022-03-25

Appended commentary added to end of original temporary modification C-note annotation in previous version of provision (PiT 31.12.2021):

https://www.legislation.gov.uk/ukpga/1977/43/section/5/2021-12-31

Example of removal of textual temporary amendment

1977 c. 42, s. 3 - text restored and C-note for expiry of earlier affecting provision effect removed from latest version (PiT 25.3.2022):

https://www.legislation.gov.uk/ukpga/1977/42/section/3/2022-03-25

Appended commentary added to end of original temporary textual amendment F-note annotation in previous version of provision (PiT 31.12.2021):

https://www.legislation.gov.uk/ukpga/1977/42/section/3/2021-12-31

Example where temporary textual amendments have their affecting provision partially expired, continued and then fully repealed and the amendments are made permanent by re-doing them

2003 c. 41, Pt. 5 - on 25.3.2022 the temporary amendments made by the Coronavirus Act 2020 (c. 7), Sch. 24 were initially continued for E. and W. but expired for S. and N.I.:

Word in s. 206A heading omitted (temp.) (25.3.2020) by virtue of Coronavirus Act 2020 (c. 7), s. 87(1), Sch. 24 para. 9(2) (with ss. 88-90) (which affecting provision is continued (E.W.) by The Coronavirus Act 2020 (Delay in Expiry: Inquests, Courts and Tribunals, and Statutory Sick Pay) (England and Wales and Northern Ireland) Regulations 2022 (S.I. 2022/362), reg. 2, but expires (S.N.I.) (25.3.2022) by Coronavirus Act 2020 (c. 7), s. 89 (with s. 90))

Then, on 28.6.2022, the Police, Crime, Sentencing and Courts Act 2022 (2022 c. 32) both repealed the affecting provision for the temporary amendments but also made the temporary amendments permanent by redoing them:

https://www.legislation.gov.uk/ukpga/2022/32/section/201/enacted#section-201-1

https://www.legislation.gov.uk/ukpga/2022/32/schedule/20/paragraph/2/enacted#schedule-20-paragraph-2

The superseding amendments by 2022 c. 32. Sch. 20 para. 2 were carried out in full and the annotation for the temporary textual amendment was replaced with the annotation for the superseding amendment. An appended commentary for the repeal of the earlier affecting provision was added to the annotation for the temporary textual amendment at the previous PiT:

Annotation for the temporary textual amendment on 25.3.2022:

https://www.legislation.gov.uk/ukpga/2003/41/section/206A/2022-03-25

Word in s. 206A heading omitted (temp.) (25.3.2020) by virtue of Coronavirus Act 2020 (c. 7), s. 87(1), Sch. 24 para. 9(2) (with ss. 88-90) (which affecting provision is continued (E.W.) by The Coronavirus Act 2020 (Delay in Expiry: Inquests, Courts and Tribunals, and Statutory Sick Pay) (England and Wales and Northern Ireland) Regulations 2022 (S.I. 2022/362), reg. 2, but expires (S.N.I.) (25.3.2022) by Coronavirus Act 2020 (c. 7), s. 89 (with s. 90) and is otherwise repealed (28.6.2022) by Police, Crime, Sentencing and Courts Act 2022 (2022 c. 32), ss. 201(1), 208(5))

Annotation for the superseding effect on 28.6.2022:

https://www.legislation.gov.uk/ukpga/2003/41/section/206A/2022-06-28

Word in s. 206A heading omitted (28.6.2022) by virtue of Police, Crime, Sentencing and Courts Act 2022 (c. 32), s. 208(5)(y), Sch. 20 para. 2(2)(a)

Example where temporary textual amendments have their affecting provision continued and then fully repealed, and the provision containing the temporary textual amendments is also omitted

See https://www.legislation.gov.uk/ukpga/1998/37/section/57A/2022-03-24

Words in s. 57A(3) substituted (temp.) (25.3.2020) by virtue of Coronavirus Act 2020 (c. 7), s. 87(1), Sch. 24 para. 2(3)(c) (with ss. 88-90) (which affecting provision is continued by The Coronavirus Act 2020 (Delay in Expiry: Inquests, Courts and Tribunals, and Statutory Sick Pay) (England and Wales and Northern Ireland) Regulations 2022 (S.I. 2022/362), regs. 1(2), 2; but then repealed (28.6.2022) by Police, Crime, Sentencing and Courts Act 2022 (2022 c. 32), ss. 201(1), 208(5)(z))

The Part containing the amended provision itself is also omitted on 28.6.2022:

https://www.legislation.gov.uk/ukpga/1998/37/section/57A/2022-06-28

Example where a temporary whole document retained text repeal is restored

See the example described above (click on the 27.5.2020 PiT to see what happens when the text is restored, the details of the repeal of the earlier affecting provision have been included at the previous PiT).