Editorial Principles
| To search for a term within this page, press 'CTRL' and 'F' on your keyboard, then type your search term into the box that appears. |
Introduction to Editorial Principles
The Editorial Principles section provides an overview of the general principles relevant to all editorial tasks, such as what types of legislative effects there are, what jurisdictions they extend to, and when and how they come into force. Editors need to have a good understanding of the general principles before starting to make editorial changes to the legislation on legislation.gov.uk.
The term 'effect' means any impact that a new legislative provision has on the text, meaning, operation, scope, or application of existing legislation (including itself). There are two main categories of types of effect: textual amendments and non-textual effects.
See Our Approach to Editing Legislation in the Introduction to Revising Legislation for the principles behind how legislation gets revised. See also Approach to Update - Some Basic Rules and Exceptions in the Editorial Update section.
Effects
| See also: Identifying and Marking up Effects, Recording Type of Effect | Back to Top |
Effects can be described as any impact that one legislative provision may have on another. The most familiar type of effect is an amendment that changes the text of the affected legislation, but there are also types of effect that do not change the text, such as where a provision is said to be ‘modified’ or ‘applied’. Other events, such as the commencement of a provision, are also treated as effects for the purposes of legislation.gov.uk. Note that an item of legislation may contain internal effects. For example, a provision may modify or apply some other provision in the same item of legislation. These internal effects are not generally recorded. The main exception is where an item of legislation amends its own text, which may happen, for example, when an item of legislation repeals itself, or part of itself, at some future date. Also, certain internal effects to do with commencement and extent may be recorded.
What we don't treat as effects
'Mere exercise of power'
'Mere exercise of power' (MEOP) is a shorthand term we use for a reference in affecting secondary legislation which, although it may at first look as if it is affecting, in fact simply fulfils a power conferred by the empowering Act, and does not actually alter the text, meaning or scope of the supposedly affected provision. For example, hypothetically The Legal Editors (Remuneration) Order 2015 specifies a sum of money "for the purposes of section 1 of the Update Act 2000" (which may superficially look like a modification of s.1), but in fact s. 1 provides for legal editors to be paid annually "such sum as may be prescribed". S. 1 is not being altered in any way; the power to specify a sum conferred by that section has simply been carried out. So this is not an effect for our purposes.
The term 'MEOP' can be misleading unless it is understood that the emphasis falls very heavily on the word 'Mere'. Any item of secondary legislation, such as a statutory instrument, and everything in it, is an 'exercise of power' (i.e. the power in primary legislation to make that instrument, which will also specify the scope of the provisions that may be contained in it). 'MEOP' indicates that the reference in question is an exercise of that general power and NOTHING ELSE. In particular, it is NOT an exercise of a power to amend, apply, modify, etc. So, any amending provision in secondary legislation is also an 'exercise of power', but it is the exercise of a specific power to amend, and is therefore NOT a 'MEOP'.
A good starting point in working out whether a doubtful reference indicates a MEOP or a genuine effect is to locate the power-conferring provisions in the preamble of the affecting instrument. (Every item of secondary legislation lists the power-conferring provisions which give authority for that instrument to be created in the first place.) If the possibly-affected provision falls within the power-conferring provisions listed, that is a clue that the reference is likely to be a MEOP. A close reading of the relevant power-conferring provision together with the relevant provision of the affecting instrument will reveal whether the reference is the exercise of a power to amend, apply, modify, etc., or just a MEOP. BUT NOTE that, while this tip is useful in many cases, it will often be necessary to research relevant provisions more widely. In cases of doubt, a review editor should always be consulted.
For an example of an MEOP, see: https://www.legislation.gov.uk/uksi/2023/1176/regulation/16/made
Contrast this with https://www.legislation.gov.uk/uksi/2023/1273/regulation/2/made, which exercises the power in 2000 c. 8, s. 1MA(2) to exclude s. 1MA(1). This is clearly an exercise of a specific power to amend, and is therefore an “excluded” effect in its own right.
Apparent modifications which should not be treated as effects
Apparent modifications to UK legislation contained in texts of international agreements (or agreements with UK territories) which are annexed to SIs should not be treated as effects of those SIs themselves. They have effect separately from the SIs which are generally only declaratory, or perhaps provide for how and when the annexed agreement is to come into effect in the UK. For further advice, consult a Review Editor.
See, for example, The Social Security (Norway) Order (Northern Ireland) 2020, which contains "Amendments to the Convention" within the Schedule. For our purposes, these are not treated as effects.
https://www.legislation.gov.uk/nisr/2020/357/schedule/made
See also Double Taxation Relief Orders.
Knock-on effects and “amendment to earlier affecting provision” effects
Knock-on effects
A knock-on effect is an effect which occurs when an effect by legislation A on legislation B gives rise to a further effect on a third item of legislation, C. Typically, this occurs when A makes a textual amendment to B (e.g. a section is inserted), and the amendment text itself contains an effect (usually non-textual) on C. We record both of these effects.
An example of a knock-on effect is highlighted in the amending provision (legislation A) shown below, where a new section (s. 83FB) is being inserted in legislation B, and that section contains a non-textual effect on another item of legislation, legislation C (which is FA 2021, Sch. 24 para. 24(4)(5) in this example):
Example of a knock-on effect:
2011 c. 21, s. 24(6) inserts a new range of sections, ss. 32BA-32BC, into 1997 c. 44. The newly inserted s. 32BC(3) contains a new knock-on effect in that it applies 1838 c. 110, s. 17:
http://www.legislation.gov.uk/ukpga/2011/21/section/24/2012-05-01?timeline=true
| 1997 c. 044 | s. 0032BA-32BC | inserted | 2011 c. 021 | s. 0024(06) | s. 0082(03) | prosp |
| 1838 c. 110 | s. 0017 | applied by 1997 c. 44, s. 32BC(3) (as inserted) | 2011 c. 021 | s. 0024(06) | s. 0082(03) | prosp |
Note:
- amendment gives rise to a new knock-on effect.
- the new knock-on effect has the same IF Date as the amendment that contains it.
Result:
The TOES data gives rise to the following annotation being generated by the Editorial System:
S. 17 applied by 1997 c. 44, s. 32BC(3) (as inserted (1.5.2012) by Education Act 2011 (c. 21), ss. 24(6), 82(3); S.I. 2012/924, art. 3)
https://www.legislation.gov.uk/ukpga/Vict/1-2/110/section/17 https://editorial.legislation.gov.uk/task/update/step/ukpga/Vict/1-2/110/section/17/2012-05-01/auto
NOTE: the term 'knock-on' is also used in the context of commencement orders, when an affecting provision in an Act is being brought into force, to refer to the effect of the commencement order on the legislation affected by the commenced affecting provision.
Amendments to earlier affecting provisions
This is where an effect hits a provision which is itself an affecting provision (i.e. the affected provision itself contains a textual amendment(s) or non-textual effect(s) on another item of legislation).
Example of an “amendment to earlier affecting provision” effect:
S.I. 2010/1898, reg. 5(1)(2) modifies the Children Act 1989 (c. 41), s. 38. According to reg. 1(2) this amendment comes into force on the date on which a particular Convention enters into force as notified in the Gazettes. The Gazettes notified 1.11.2012 and that is the IF Date we have used for the modification:
http://www.legislation.gov.uk/uksi/2010/1898/regulation/5/made
https://www.thegazette.co.uk/notice/B-7448-7
| 1989 c. 041 | s. 0038 | modified | 2010 SI1898 | reg. 005(01)(02) | reg. 001(02) | 01/11/2012 | wholly in force |
S.I. 2019/519, Sch. para. 37(3) will then come along on IP completion day, a date which is later than the original effect, and amend the earlier affecting provision reg. 5(1)(2): http://www.legislation.gov.uk/uksi/2019/519/schedule/paragraph/37/made
| 2010 SI1898 | reg. 005(01)(b)(i) | word inserted | 2019 SI0519 | Sch. para. 037(03)(a)(i) | reg. 001(01) | 31/12/2020 | wholly in force |
| 2010 SI1898 | reg. 005(01)(b)(iii) and word | omitted | 2019 SI0519 | Sch. para. 037(03)(a)(ii) | reg. 001(01) | 31/12/2020 | wholly in force |
| 2010 SI1898 | reg. 005(02)(a) | words omitted | 2019 SI0519 | Sch. para. 037(03)(b)(i) | reg. 001(01) | 31/12/2020 | wholly in force |
| 2010 SI1898 | reg. 005(02)(d) | words omitted | 2019 SI0519 | Sch. para. 037(03)(b)(ii) | reg. 001(01) | 31/12/2020 | wholly in force |
| 1989 c. 041 | s. 0038 | amendment to earlier affecting provision S.I. 2010/1898, reg. 5(1)(2) | 2019 SI0519 | Sch. para. 037(03) | reg. 001(01) | 31/12/2020 | wholly in force |
Note:
- the affected provision is identical to the original affected provision so we can identify the existing annotation during update.
- multiple amendments are bundled together into one amendment to earlier affecting provision effect.
- where the change comes into force later than the IF Date of the original amendment the original amendment is usually a non-textual effect.
Result:
S. 38 modified (1.11.2012) by The Parental Responsibility and Measures for the Protection of Children (International Obligations) (England and Wales and Northern Ireland) Regulations 2010 (S.I. 2010/1898), regs. 1(2), 5(1)(2) (as amended (31.12.2020) by The Jurisdiction and Judgments (Family) (Amendment etc.) (EU Exit) Regulations 2019 (S.I. 2019/519), regs. 1(1), Sch. para. 37)
https://editorial.legislation.gov.uk/task/update/step/ukpga/1989/41/section/38/2020-12-31/prov
Note:
- because the earlier affecting provision is amended after it is in force, then the date is included in the appended commentary: “(as amended ([date]) by …)”
Where the earlier affecting provision is amended before it comes into force, we need to take a different approach, as described below.
Internal effects
As a general rule, we do not mark up internal effects which are non-textual in nature, such as where an Act contains a Schedule of modifications specifying that certain provisions are to apply differently for different purposes or jurisdictions (e.g. for Northern Ireland). Sometimes, however, legislation may genuinely amend itself textually. (Such amendments are usually, of course, left to be brought into force at some future time, and may be used to anticipate planned policy changes that are not yet in operation.) These effects are to be marked up as textual amendments in the usual way. For example, S.I. 2019/709, reg. 20 textually amends Sch. 5 within the same Regulations:
https://www.legislation.gov.uk/uksi/2019/709/regulation/20
The commencement of reg. 20 is on 1.4.2019 (with the remainder of the Regulations having come into force on 28.3.2019):
https://www.legislation.gov.uk/uksi/2019/709/regulation/1
The Explanatory Note makes it clear that these amendments are being made to reflect local government reorganisations which come into force on 1.4.2019:
https://www.legislation.gov.uk/uksi/2019/709/note
Here is how these internal textual effects were subsequently recorded in TOES:
Note that a special procedure applies to sunset provisions which provide for the legislation, or parts of it, to lapse or expire at some point in the future.
Textual Amendments
| See also: Identify Effects - What are effects? | Back to Top |
Textual amendments are the most common and straightforward type of effect. They give authority to change the text of the affected legislation.
Textual amendments may affect legislation at any level:
- the whole item of legislation;
- a whole provision;
- a sub-provision;
- or just some text within a provision or sub-provision (e.g. individual words or definitions).
On legislation.gov.uk, textual amendments in the text of affected legislation usually appear enclosed within square brackets, and the associated annotations are listed under the heading 'Amendments (Textual)'. They appear as ‘F-notes’, which link to markers located at the relevant place in the text.
Types of textual amendment
Textual amendments fall into three main types:
- insertions (where new text is put in)
- substitutions (where old text is replaced by new text)
- repeals (where text is taken out).
The precise terms used by drafters may vary. For example, new text put in at the end of a provision may be 'added', and text to be taken out may be 'omitted', 'revoked', or it may 'cease to have effect'. Provisions or sub-provisions may also be renumbered, which again may be expressed in different ways, and this can even require the affected legislation to be re-structured. Occasionally, an unusual form of words may be used to describe a straightforward type of effect. Sometimes an unusual type of effect is indicated, which needs an approach that is tailor-made for the situation. The main terms used by drafters to indicate textual amendments are as follows:
- add
- insert
- substitute
- repeal
- omit
- revoke
- ceases to have effect
- renumber
See the table of textual effects on the Preparation Tasks - Record Effects page for more detail used when recording textual effects.
Awkwardly framed textual amendments
There are some occasions where we would interpret the drafter's instructions as a substitution, even though the drafter has not used the word "substitute". Quite often in secondary legislation the drafter may bring about what we would consider to be a substitution of words by omitting (or deleting, or removing, or even leaving out) a word or words, and replacing it with another word or words. In this situation, instead of identifying two separate effects (one for the omission, and another for the replacement), it is acceptable to treat it as a straightforward substitution.
For example, in 2013 c.14, s. 3(2) it says: "In section 7 (the heading to which becomes "Appeal against conditions attached to site licence")..." - in this case the type of effect is "heading substituted".
Repeals
A repeal occurs where existing text ceases to have effect and, provided the repeal is for all purposes and extents, the text may also be removed from the legislation as it no longer forms part of the law. A repeal may also relate to a whole item of legislation, such as a whole Act. A variety of expressions may be used by the drafter to indicate a repeal: text may be said to be 'repealed', ‘omitted’, or it may ‘cease to have effect’. It used sometimes to be argued that these various expressions carried slightly different nuances of meaning (e.g. 'repealed' - meaning literally 'recalled' - meant that the text was taken out altogether and ceased to be part of the legislation, whereas 'ceases to have effect' meant that the text remained in existence but no longer having any effect). Nowadays, however, Parliamentary Counsel confirm that drafters regard these expressions as completely synonymous. By convention, where secondary legislation is 'repealed', the expression used is 'revoked' and any such effects should be marked up accordingly. In this page generally, 'repeal' includes 'revocation' unless the context requires otherwise.
Repeals schedules and cross-referencing
An affecting item of legislation may contain a schedule listing repeals made by that legislation. This is usually the last schedule in sequence. Some of the entries in the repeals schedule may duplicate repeals already effected elsewhere in the affecting legislation (so called 'double repeals'), while some of the entries may stand alone as the only authority for the repeal. Whenever the editor comes across a repeal anywhere in the legislation (other than in the repeals schedule), by whatever words that repeal may be expressed, a check should be made to see whether there is a corresponding entry in the repeals schedule, if there is one. (NB:- The practice of 'double repealing' is, thankfully, becoming less common, and Acts of the devolved legislatures rarely, if ever, use it. It is always good practice to check, however.) If a 'double repeal' relates to a whole provision or sub-provision, the effect should be marked against the reference in the main text as repealed (or revoked where secondary legislation is affected), whatever expression is used in the text, and a reference to the repeals schedule should be noted in the margin. This information should then be cross-referenced in the repeals schedule itself by marking a reference to the provision in the main text which contains the repeal against the relevant entry. NB:- it may sometimes happen that the entries in the main text and the repeals schedule may not correspond exactly (usually because the scope of the repeal in the schedule is wider than that in the main text), and the markup will need to be tailored accordingly, as to which it may be advisable to consult a review editor.
If there is no corresponding entry in a repeals schedule then the effect in the main text should be marked in the normal way (e.g. "omitted", "ceases to have effect", "revoked" etc,) If a repeal is listed in the repeals schedule, but is not referenced elsewhere in the legislation, the effect should be marked up here in the normal way.
'Hidden' repeals
Editors should be vigilant for 'hidden' repeals. These can arise where, for example, a whole Part of an Act is repealed, and that Part contains an inducing section for a schedule. Unless it is indicated otherwise, the schedule is therefore also repealed, even though it is not specifically mentioned in the affecting legislation. In such a case, the editor will need to tailor the markup so as to bring this to the attention of the TOES and Update editors (since there will be no reference to the repealed schedule to draw attention to), e.g. 'Pt. 2 (including Sch. 3) repealed'. However, before coming to a conclusion as to whether there is a hidden repeal, editors should consult a review editor. See, for example S.I. 2013/1506, reg. 36(b) which revoked S.I. 2009/716, regs. 4, 6 to 11 and 13 on 1.6.2015: https://www.legislation.gov.uk/uksi/2013/1506/regulation/36/made The revocation of regs. 4,7,9 and 11 resulted in the 'hidden' revocations of Schs. 3,4 and 5, which were captured in TOES as follows (note the use of the type of effect "revoked by virtue of the revocation of" for the 'hidden' revocations):
Repeals and revocations in Northern Ireland legislation
Note that when a Statutory Rule of Northern Ireland (S.R.), or a provision or sub-provision within it (as opposed to words), is repealed, this should always be marked as a revocation ("revoked"), even in the unusual event that the draftsman has used "repealed" or "omitted" (i.e. exactly the same principle applies for S.Rs. as for S.Is. and S.S.Is.). If, however, the repeal relates to a Northern Ireland Order in Council, which is treated as primary legislation for N.I., it should always be marked as a repeal and not as a revocation, even if the text uses "revoked". If only words are repealed, the normal rules for marking up repeals or revocations apply in both cases.
Non-textual Effects
| See also: Identify Effects - What are effects? | Back to Top |
Non-textual effects alter the meaning, scope or application of an affected provision without altering the text. Internally we sometimes refer to these as 'non-textual amendments', but this term is misleading as most of these effects are not really ‘amendments’ at all (e.g. ‘applied’).
Non-textual effects may affect legislation at any level. For editorial purposes we always treat them as only relating to the relevant numbered whole provision or sub-provision (or higher level) and not just to words or definitions within those (sub-) provisions.
On legislation.gov.uk, the annotations for these effects appear as 'C-notes' and are listed under the heading 'Modifications etc. (not altering text)'. Because the effects are always treated as affecting identified whole provisions or sub-provisions, there are no corresponding markers located within the text.
There are some other types of legislative provision or action which, strictly speaking, give rise to ‘non-textual effects’. These are dealt with elsewhere in this guide, but the main examples are:
- commencing provisions and commencement orders (the effects of which on the provisions commenced may be reflected in ‘I-note’ annotations)
- provisions determining the extent of legislation (which may give rise to ‘E-note’ annotations)
- the making of any item of secondary legislation (which may be recorded in a ‘P-note’ annotation against the power-conferring provision as a 'power exercised' effect).
Note: it is not treated as any effect where it is provided that documents are considered to be delivered “for the purposes of the Interpretation Act 1978 c. 30, s. 7” if sent in a particular way. Also, where NI Orders in Council or SRs provide that “the Interpretation Act (Northern Ireland) 1954 shall apply”, this is not treated as an effect simply because it is so standard, although technically it should be “applied”.
Non-textual effects are always treated for editorial purposes as affecting numbered whole provisions or sub-provisions (or higher levels, e.g. whole Act). So, for example, if the Update Review Act 2015 provides that “For the purposes of this Act, the reference to a legal editor in section 1(1) of the Update Act 2000 shall be construed as including a review editor”, we would treat that as modifying s. 1(1) as a whole, so the effect would simply be “modified” (not “words in s. 1 modified”). This is because the change in the meaning or scope of the words alters the effect of s. 1(1) as a whole.
Unlike textual amendments, non-textual effects are not usually indicated in the affecting legislation by clear and unequivocal instructions along the lines “for A there shall be substituted B”. There are many different ways in which legislation can affect other legislation non-textually, and over the years a number of standard types of effect have been defined, mainly by editors of the statutes to assist the user. It can often be quite a subtle matter of interpretation to determine which of these types a given non-textual effect may fall into, or even whether it is an effect at all (as opposed to just, say, an “identifying reference”). A close, contextual reading of the affecting provisions (and often the surrounding provisions as well) may be required, and editors should bear in mind that the mere use by the drafter of a term used by us to indicate a particular non-textual effect (e.g. “applies”) is not determinative of the type of effect for our purposes. (As a general rule, we avoid interpretation when making editorial decisions - our aim is simply to follow the “plain words” of the legislation. Making decisions about non-textual effects is the major exception to this rule.) In cases of uncertainty, it is always advisable to consult a Review editor.
The most common types of non-textual effect are “applied”, “modified”, and “applied (with modifications)”, but a more comprehensive list can be found below.
There are other rarely used or obsolete types, and it will sometimes be necessary in unusual circumstances, or to reflect some deliberate form of words used by the drafter, to tailor a 'custom' annotation for the effect. In such cases the editor should spell out the suggested wording in the markup (having first consulted a Review Editor).
Note: when marking up non-textual effects, it is important to keep the marking at the highest level necessary to include all elements of the effect. For example, if the Update Review Act provides that s.1 of the Update Act shall apply with certain modifications, and those modifications are to sub-sections (2), (4) and (6), only the reference to section 1 (NOT the sub-sections) would be included in the markup (applied (with modifications)).
Types of non-textual effect
The main types of non-textual effect are set out below, though variations will be needed in unusual circumstances or to reflect the wording used by the drafter. If this is the case, clear guidance should be given in the mark-up on the affecting legislation.
The conventions below were revised and updated in order to apply the effects of 2005 legislation onwards and are common to both UK and Northern Ireland revised legislation. Types of non-textual amendment that are no longer or very rarely used are included at the end for historical information.
| Type of effect | Description |
|---|---|
| applied | This is used where provisions of existing legislation are ‘adopted’, either for the purposes of the new legislation itself or for a set of circumstances specified in that new legislation. That existing provision is then said to be ‘applied’.
The clearest type of example would be where the term itself is used by the draftsman, e.g.:or
(but beware, the mere presence of words such as “shall apply” does not necessarily indicate an ‘applied’ effect. In context, the affecting provision may in fact be modifying a provision that already applies. (See ‘modified’ below).) In other examples, the application of the existing provision is implicit in the wording of the affecting provision, e.g.
See the Examples of non-textual effects section below for further examples of applied effects. |
| applied
(with modifications) |
This is used where provisions are applied as above, but the applied provisions are also modified to suit the new circumstances. The required modifications may or may not be spelled out, e.g.
See the Examples of non-textual effects section below for further examples of applied (with modifications) effects. |
| disapplied | This is used where provisions of existing legislation which previously applied are now no longer to apply. It is almost exclusively used where the term ‘disapplied’ is used by the draftsman. |
| construed as one with | This is used where the new legislation is to be interpreted (‘construed’) as if it, and the existing legislation, were in effect, a single item of legislation. It should only be employed where clear words are used by the draftsman, e.g.[The resulting annotation in the 1891 Act will read: “Act: 1999 c. 16 Pt VI to be construed as one with this Act by virtue of ...”] We treat this as an effect because it impacts on the interpretation of both items of legislation, and contrasts with the situation where it is provided that the new legislation “shall be read with” or “shall be construed in accordance with” the existing legislation. We do not treat these as effects. On the other hand, an expression such as “shall be construed as including a reference to” would probably indicate a modification. |
| continued | This is used where a provision is stated to be continued (generally, where it would otherwise cease to have effect), e.g.
Note that when we record this type of effect, we can also include more relevant information such as the date that the provision is continued until, see Record Effects - Continuation.
|
| excluded | This is used where it is provided that the affected provisions are not to apply to the affecting legislation, or to some specified set of circumstances (in contrast to ‘restricted’ below), e.g.
See the Examples of non-textual effects section below for an example of an “excluded in part” effect. |
| explained | This is used occasionally where the new provision clarifies earlier provisions without intending to change them, e.g.
|
| extended
[occasionally: extended with modifications]
|
This may be used to extend existing provisions to persons, things or circumstances not previously included, e.g.
This effect is now used sparingly. It was previously used quite widely for effects that would now be treated as ‘applied’ or ‘modified’. It is now generally confined to situations where an existing category of things or circumstances is being extended to bring new ones within the same category (often using words such as “shall include”, as in the first example above) or where clear words such as “shall be extended” or “shall be construed as extending” are used (as in the second example). As with ‘applied’, it is possible for a provision to be extended with modifications. Where it is provided by an affecting Act that the power under the section of another Act may be exercised in the stated conditions, the effect should be recorded as ‘power extended’. For an example of a power extended effect, see the Examples of non-textual effects section below. |
| extended (to another jurisdiction)
e.g. Extended (Jersey) |
This is used where the operation of a provision is extended to a specified new jurisdiction, e.g.
Also note that amendments themselves may be extended to another jurisdication via “amendments extended to ...” effects. For an example of an “amendments extended to ...” effect see the Examples of non-textual effects section below. |
| incorporated | This is only used where clear words indicate that the earlier provisions are to be incorporated in the specified legislation, e.g.
See the Examples of non-textual effects section below for an example of an “incorporated” effect. |
| modified | This is the ‘workhorse’ of non-textual effects and can be used for any situation where the meaning or operation of a provision is altered without changing the text and which doesn’t fall into any of the other categories. (It was previously used only for the modification of provisions in respect of particular cases - the term ‘amended’ was used if the alteration was of general application).
Other non-textuals can sometimes be regarded as special examples of ‘mods’ (e.g. ‘restricted’, ‘extended’, etc.). It may be possible to use ‘mod.’ where it is clear that there is some change to the meaning or operation of a provision but it is difficult to categorise. Note: when drafters use the terms 'modified', 'modification', etc., this does not necessarily indicate a non-textual effect. Drafters may use the terms to mean any kind of change, including amendments to text. It should be apparent from the context whether a textual or non-textual effect is intended.
See also the Examples of non-textual effects section below for further examples of “modified” effects. |
| power extended - see Extended | |
| power to amend,
apply etc. conferred |
This is used where a power to amend or apply an existing provision (or to modify, restrict, etc.) is conferred, e.g.
|
| referred to | This category has been traditionally used in Northern Ireland and may now also be used for UK legislation, though it rarely is. It is used where there is a reference to existing legislation which is likely to be of significance to a user but which does not amount to an amendment or other recognised effect on that legislation.
Here is an example of how it has been used:This is some sort of exclusion, but it operates on the rules made under s. 340 rather than on the section itself, and would not usually be recognised as an effect for our purposes. Nevertheless, the user of the Act might very well want to know about it. Although it can be used as a fallback where there is some doubt about whether the reference amounts to an effect or not, it should not be used simply to avoid working out what the effect is. Note: it should not be used for references which are merely identifying references. These occur very frequently and noting them all would overload the revised legislation with information of little use to the user. |
| restored | This is (rarely) used where a provision has previously been amended or repealed and is now reinstated as it stood before the amendment or repeal, e.g.
|
| restricted | This is used to indicate that the application of the existing provision to the new legislation or circumstances is limited. But note that if the net effect is that the existing provision is not to apply at all in the specified circumstances, “excluded” would be used.)
Examples of ‘restricted’ are:
|
| superseded | This is used where new provisions are to have effect in place of former provisions. Usually the former provisions are repealed by the amending Act - see 1976 c. 17, s. 5(2). In the following case, the provisions of the section are superseded for certain purposes only, so the annotation reads “superseded in relation to secured tenancies”:
|
| transfer
of functions |
This is used where functions under a provision formerly vested in one party are transferred to another, e.g.Note: variations on this theme might include “functions made exercisable by” or “functions made exercisable concurrently by” (the latter would occur where power is to be vested in another party as well as the first party). However, we would not record a “delegation of functions”. Where a function is delegated the responsibility for the function remains where it was. We should only be interested if the function is actually transferred or made exercisable jointly etc so that there is joint responsibility, rather than mere delegation. For an example of a transfer of functions effect, see the Examples of non-textual effects section below. |
Old types of non-textual effect
Although no longer, or very rarely, used, editors need to be aware of these effects as they may still be found in existing annotations, in the printed Tables of Effect appended to the annual bound volumes of legislation, and in the Chronological Table of the Statutes.
| Type of effect | Description |
|---|---|
| amended | This is now very rarely used. It was previously used routinely where the meaning of a provision was changed for all purposes, but without authority to amend the text. We now prefer to use the term ‘modified’ (‘mod.’).
It is still very occasionally used for an amendment which is in the nature of a textual amendment but where it is impractical to alter the text. The most frequent such use is in the complex up-rating of sums, such as in social security legislation. |
| definition applied | This was used for the application of a definition, but was suspended due to the large volume of effects with limited perceived use. |
| saved | This was used where a provision is preserved (saved) from being affected. (This is different from a saving which is used in conjunction with an amendment or repeal to indicate a qualification to the amendment or repeal). |
| Back to Top |
Examples of non-textual effects
“Applied”
These are ‘applied’ effects, even though they aren’t overtly expressed as such – they are clearly adopting the provisions of Sch. 1 to 2014 c. 7 and applying them to the circumstances provided for in reg. 4(3).
Contrast this with S.I. 2020/512 reg. 5(1)(b):
This is not an 'applied' effect as it is not application of S.I. 1982/894, reg. 2(1)(c) – it is merely defining a person by reference to that provision (i.e. it’s saying that “if person X falls within reg. 2(1)(c) of S.I. 1982/894, their incapacity for work is related to coronavirus for the purposes of these regulations”).
It is a common mistake to record these types of effect as ‘applied with modifications’– however the effect is merely ‘applied’; it is not the provisions of 1970 c. 9 that are being modified to fit the new circumstances, but rather the other way round – the new circumstances are being, as it were, ‘deemed’ to fit the provisions being applied. For example: reg. 11(4)(b) provides that Pt. 6 of the 1970 Act applies as if a ‘notice of decision’ (under these Regs) were an ‘assessment’ (under the Act), so the provisions of the Act being applied aren’t modified. It would be different if, for example, reg. 11(4)(b) had said: “[Pt. 6] applies . . . as if references to an assessment in that Part were references to a notice of decision.”.
“Applied (with modifications)”
Affecting provision:
30.—(1) Part 1 of the 1965 Act, as applied to this Order by section 125(1)(application of compulsory acquisition provisions) of the 2008 Act, is modified as follows.
Although the affecting provision heading says “Modification of Part 1 of the 1965 Act”, Pt. 1 is modified only as it applies by virtue of 2008 c. 29, s. 125, so the overall effect is “applied (with modifications)”.
https://www.legislation.gov.uk/ukpga/2008/29/section/125
Marked up:
Applied in update:
https://www.legislation.gov.uk/ukpga/1965/56/part/I
Note the other affecting provisions in the annotation that have been “bundled” together with this affecting provision that also apply Pt. 1 with modifications.
Continued
Order continued until 22.3.2024 by The Excise Duties (Surcharges or Rebates) (Hydrocarbon Oils etc.) Order 2022 (Continuation) Order 2023 (S.I. 2023/329), arts. 1, 2
https://www.legislation.gov.uk/uksi/2022/365/introduction
“Excluded in part”
See 1981 c. 54, s. 31:
https://www.legislation.gov.uk/ukpga/1981/54/section/31/2022-01-24
Which was excluded in part by 2021 c. 30, s. 39(3):
https://www.legislation.gov.uk/ukpga/2021/30/section/39#section-39-3
Extension of an amendment to a new territory (“amendments extended to ...”)
This is a non-textual effect whereby an existing amendment with limited extent is extended to a new territory.
Eg: https://www.legislation.gov.uk/wsi/2022/722/regulation/3/made
3.—(1) The amendments made to the Council Tax (Exempt Dwellings) Order 1992 (“the 1992 Order”) by article 3 of the Council Tax (Discount Disregards and Exempt Dwellings) (Amendment) (England) Regulations 2022 apply in relation to billing authorities in Wales.
The ‘amendments extended’ effect is recorded for the original amending provision, for example:
| 2022 SI0439 | reg. 003 | amendments extended to W. | 2022 WSI0722 | reg. 003(01) |
This generates a non-textual C-note against the provision containing the original amendments being extended. The C-note should read, for example:
Reg. 3: amendments extended to W. (21.7.2022) by The Council Tax (Amendments Relating to Discount Disregards and Exempt Dwellings) (Wales) Regulations 2022 (S.I. 2022/722), regs. 1, 3(1)
Further example: https://www.legislation.gov.uk/asp/2016/1/schedule/2/paragraph/37
“Incorporated”
3.—(1) The following provisions of the Railways Clauses Consolidation Act 1845(13) are incorporated in this Order— ... (b) section 68 (accommodation works by company) ...
Marked up:
Recorded:
See also “Incorporated in part”:
3.—(1) The following provisions of the Railways Clauses Consolidation Act 1845(13) are incorporated in this Order—
(a) section 58(14) (company to repair roads used by them), except for the words from “and if any question” to the end; ...
Marked up:
Recorded:
“Modified”
(5) In the application of section 101(4) of the Finance Act 2009(3) (late payment interest on sums due to HMRC) in relation to a repayment to HMRC of an overpayment under this regulation, the overpayment becomes due and payable on the date on which HMRC give the notice of decision referred to in paragraph (2).
The opening wording makes it clear that s. 101(4) of 2009 c. 10 already applies in these circumstances. If its effect is then being changed in some way as it so applies, the effect will be ‘modified’.
Note: It could be argued that reg. 11(5) is just making ‘further provision’ in relation to certain circumstances to which s. 101(4) already applies without changing the effect of s. 101(4) in any way, in which case it would be no effect at all; however, the decision was taken to use the effect ‘modified’ in this case.
“Power extended”
Counter-Terrorism and Security Act 2015 (c. 6), s. 51(5)
‘The power under section 31(4) of the Terrorism Prevention and Investigation Measures Act 2011 (extension to the Isle of Man) may be exercised in relation to any amendments made to that Act by this Act.’
Should be recorded in TOES as:
| 2011 c. 023 | s. 0031(04) | power extended | 2015 c. 006 | s. 0051(05) |
See also:
Counter-Terrorism and Border Security Act 2019 (c. 3), s. 26(9)
Counter-Terrorism and Sentencing Act 2021 (c. 11), s. 49(9)
“Transfer of functions”
Affecting provision:
Marked up:
Recorded:
Applied in update:
https://www.legislation.gov.uk/ukpga/2005/15/section/71/2023-05-03
Note the format of the annotation: a colon has automatically been inserted after the affected provision by the Editorial System when this effect is auto-applied during the update task.
Extent and Territorial Application
| See also: Marking up Extent, Recording Affecting Extent and Affecting Territorial Application, Affected Extent Research | Back to Top |
Extent
The term 'extent' refers to the jurisdiction(s) where the legislation is law. The extent of a piece of legislation can be the whole of the UK, or one or more of the three jurisdictions within the UK:
- England and Wales
- Scotland
- Northern Ireland.
Note: ‘England' and 'Wales' are not separate jurisdictions.
There is a special extent for Church Measures – the provinces of Canterbury and York.
The term “Great Britain” refers only to England and Wales and Scotland with their subsidiary islands (but not the Isle of Man or the Channel Islands). The Isle of Man and the Channel Islands are not part of the United Kingdom either. The Interpretation Act 1978, Sch. 1 gives a definition of the (rarely used) term “British Islands”.
Legislation.gov.uk is only concerned with the legislation of the UK, so it does not contain, for example, the legislation of the Isle of Man, the Channel Islands, or British overseas territories. However, the effects of legislation which extend provisions of UK legislation beyond the UK are recorded in the usual way to provide information for UK users. For example, an SI which extends a UK Act to Jersey gives rise to the annotation: 'Act extended (Jersey) (date) by...'.
It is important to establish the extent of legislation as accurately as possible because individual provisions on the legislation.gov.uk website carry an indication of their extent for the user’s reference. It is also important in the process of updating legislation to establish the relative extents of the affecting and affected provisions.
Territorial Application
‘Territorial Application’ (TA) refers to the geographical part(s) of the UK in which, or in relation to which, legislation applies. In most cases the TA will be the same as the extent (that is, it applies throughout the jurisdiction for which the legislation is law), but quite often the TA is narrower than the extent. An item of legislation may be limited in its application by reference to any manner of persons, things or areas (such as traffic wardens, motor cycles, or the London Borough of Richmond). But TA only arises for our purposes where that limitation of application relates to one (or more) of the four geographical parts of the UK (England, Wales, Scotland, and Northern Ireland).
‘Limited TA’ (such as where an SI extends to E.W. but only applies in relation to Wales) has long been a feature of UK legislation, but it has taken on a much greater significance in the context of devolution, particularly Welsh devolution. While there may be legislation that extends, say, to E.W.S. but applies only to Scotland, by far the most frequent scenario will involve E.W. (or wider) extent but with application only to Wales or only to England. Since there is no ‘Wales extent’, TA is of crucial importance to the Welsh Government and the Sennedd Cymru in achieving their objectives (with our help) to define the ‘Welsh statute book’ and ultimately codify Welsh legislation.
So it is important to establish the TA of legislation as accurately as possible. Although TA is not currently displayed against individual provisions on the legislation.gov.uk website in the same way as extent, this is only because TA hadn’t assumed its present-day significance in relation to devolution when the original requirements of the online revised legislation service were established. It is likely that TA will be ‘surfaced’ on the website in the future. It is also important in the process of updating legislation to establish the relative TA of the affecting and affected provisions.
Primary Legislation: How to Determine Extent
For Acts (or Measures) of the devolved legislatures the position is simple. Acts of the Scottish Parliament will always be ‘S.’, Welsh Acts or Measures will always be ‘E.W.’ (but see below re TA) and N.I. Acts or Measures will always be ‘N.I.’. So the following guidance mainly relates to Acts of the UK parliament (and Church Measures).
If there is an extent section, it is usually found towards the end of the main body of an Act. But extent may be indicated elsewhere too, for example in individual sections, or at the beginning or end of a Part.
In the case of an Act which has been updated, the extent of all, or part, of it may have been changed by subsequent legislation, and this may be indicated in annotations. You may find these annotations at the beginning of the Act (e.g. “Act repealed (S.) by . . .”) or elsewhere (e.g. “S.12 extended (N.I.) by . . .”). So just checking the extent section may not always be enough.
No Extent Specified
- Where there is no indication of extent in a Westminster Act, this means that the extent is unlimited. Therefore the extent is UK.
- Acts of the Scottish Parliament always extend to Scotland only.
- Acts of the Northern Ireland Assembly always extend to Northern Ireland only.
- Acts and Measures of the Welsh Assembly or Sennedd Cymru always extend to England and Wales only (but bear in mind the special significance of TA in relation to legislation for Wales).
Extent Specified
- Single Specified Extent: This is the most straightforward type of extent indication, and leaves no doubt as to its meaning.
- Act Includes a Jurisdiction:
Take care with these. The legislation may say, for example, “This [Act] [section] extends to. . .” without using the word “only” (as in the previous example). In this case, you must look at the words in context, since these words can be used to widen the extent, restrict it, or just clarify it. This form of words is most frequently found in relation to Northern Ireland. It was a special drafting convention, now rarely used, to make clear which Acts of the UK parliament extended to Northern Ireland:
e.g. “This Act extends to Northern Ireland.”
You should still check whether any other provisions give further detail. If not – and England and Wales and Scotland are not excluded – the presumption is that the Act extends to Northern Ireland as well as England and Wales and Scotland.
Conversely, if the Act states
this probably means that the legislation only extends to England and Wales - you might find further clarification elsewhere in the text. If in doubt, consult a Review Editor.e.g. “This Act extends to England and Wales”
- Act Excludes a Jurisdiction:
If you come across this text, you must first check other provisions to see if any further detail is given. If no further clarification is provided, then the Act extends only to England and Wales and Scotland. But, bear in mind that it does not necessarily mean that the whole of the Act extends to England and Wales and Scotland. Relevant individual sections may contain further limitations on extent.e.g. “This Act does not extend to Northern Ireland.”
- Mixed Extents:
Many Acts are of mixed extent, which means that the extent is not uniform throughout, and different parts or sections have different extents. This can be even more subtle, where sections only extend to a jurisdiction for certain purposes, or where different parts of the same section have different extents.
For example, an extent provision of an Act may state the following:
“(1) Parts 1-4 extend to England and Wales only
(3) Part 5 does not extent to Northern Ireland.
(2) Part 6 extends to Scotland only”
If this Act is made up of 10 Parts, the above example would be interpreted as follows:
Parts 1-4: England and Wales only
Part 5: Great Britain (England and Wales, and Scotland)*
Part 6: Scotland only
Parts 7-10: United Kingdom*
* But note also that individual provisions may give further guidance as explained above.
- ‘Co-Extensive’ Extent:
This arises where it is provided that amending (or repealing) provisions of an Act are said to have the same extent as the enactments being amended (or repealed).
e.g. “(1) Subject to the following provision, this Act extends to England and Wales only.
(2) The amendments in Schedule 6, and the repeals in Schedule 7, have the same extent as the enactments to which they relate.”This means that:
- For Editorial Update purposes, any amendments or repeals contained in Schedules 6 and 7 are treated as ‘whole extent’, whatever the extent of the affected legislation.
- For Initial Edit purposes, the ‘attributes’ for the whole Act, including Schedules 6 and 7, are set to E.W. regardless of the extent of the provisions being amended or repealed.
- For Extended TOES purposes, the extent is recorded as “same as affected”
Extent of Church Measures
The extent of Church Measures (also known as General Synod Measures) does not follow other types of primary legislation. Instead the extent is expressed in terms of the “Provinces of Canterbury and York” which, in geographical terms within the UK, effectively means England. But it is worth noting that, for the purposes of church jurisdiction:
- The Province of York includes the Isle of Man;
- The Province of Canterbury includes parts of Wales, the Channel Islands and the diocese of Gibraltar and Europe.
For the purposes of legislation.gov.uk, the extent of Church Measures is always set to ‘England’ only. (Note that this is the only circumstance in which ‘E.’ can be used to stand for an extent, as opposed to TA.)
Primary Legislation: How to Determine TA
TA is only rarely specified in primary legislation, and hardly ever as part of the extent provision. Sometimes, however, an indication will be given that a section or an amendment is only to apply, or is not to apply, to one of the geographical territories of the UK. (An old example where this occurs in an affecting provision is in 1968 c. 72, s. 89(8).) The general rule is that, unless there is such an indication (however worded), the TA of primary legislation can be assumed to be the same as the extent. There is one major exception to this rule: the primary legislation of the National Assembly of Wales or the Sennedd Cymru should generally be assumed to have TA of ‘Wales only’. BUT be aware that the Welsh legislature does have some limited powers to legislate for England (see s. 108A of the Government of Wales Act 2006 (c. 32)). If an item of Wales primary legislation is intended to make any substantive provision in relation to England, you can expect this to be clearly indicated. Otherwise, you can assume for TA purposes that any effect in relation to England is no more than purely incidental to the effect in relation to Wales, and so need not be taken into account.
Secondary Legislation: Extent and TA
In the following paragraphs the term ‘instrument’ is used to denote any item of secondary legislation (unless the context requires otherwise). The extent or TA of an instrument may or may not be explicitly stated. The instrument may be silent as to extent or TA because they can be inferred from the relevant provisions of the enabling Act, or from relevant devolved powers. In relation to UK Statutory Instruments, the Government Legal Department (GLD) has (as of 2020) adopted a policy that the extent and TA of all provisions of an instrument should be stated explicitly, even where that is not strictly necessary (because the extent or TA could be inferred). Assuming that this policy is widely followed, this should make editors’ lives much easier in future. Even so, it will still be important for editors to follow the guidance in the following paragraphs as appropriate.
How to Determine Extent
Extent Specified
First, check whether the extent is specified in the instrument. Where the extent of an instrument is specified at all, it will almost invariably spell out the extent exhaustively for the whole instrument, but you should also follow the guidance given above for primary legislation where appropriate. (Note that, if words such as “applies to England only” are used, this indicates territorial application rather than extent – as to which see the paragraphs relating to TA below.)
Extent Not Specified
The extent of a UK SI may not be explicitly stated because it can be inferred from the relevant provisions of the enabling Act. (Note: for UK SIs there will almost always be a paragraph in the accompanying Explanatory Memorandum (EM) stating the extent. Although this statement is very useful where the instrument itself is silent, it should be treated with some caution. It is always best to check the extent for yourself. For example, it sometimes happens that the ‘extent’ is given as (say) ‘England only’. This is clearly wrong as the extent in such a case must be at least ‘E+W’, and it may be even wider. Bear in mind that the EM is usually prepared by non-legal policy staff in the relevant department. While they may be very familiar with what their SI is meant to achieve, they may be a little shakier on the purely legal concept of extent.) For instruments made under devolved powers, see the relevant paragraphs below.
In the absence of any contrary indication, and subject to the paragraphs below, the extent of an instrument follows the extent of the power-conferring provision(s) of the primary legislation under which it was made. It can never be wider than the extent of the operative power-conferring provision(s).
So, in order to discover the extent of an instrument where the extent is not specified, you should find the enabling Act and provision(s). You can do this by looking in the recitation of power-conferring provisions at the top of the instrument. Then you should research the extent of such enabling provisions in the usual way.
An instrument may cite more than one provision of the enabling Act as power-conferring. (And, indeed, an instrument may be made under powers conferred by provisions of two or more enabling Acts.) Usually these power-conferring provisions will all have the same extent, but, if they do not, you need to identify the main operative provision(s) enabling the instrument (or relevant part of it) to achieve its objective.
As an example, the instrument in question may prescribe a fee. The enabling Act is of mixed extent, and two power-conferring provisions are cited. The first power-conferring provision extends only to Scotland and provides that “The Secretary of State may prescribe the amount of a fee . . .”. The second power-conferring provision, contained in the general interpretation provisions at the end of the Act, extends to the whole of the UK and defines the term “prescribed” wherever it is used in the Act. The first is clearly the main operative provision, so the extent of the instrument is Scotland only.
Wales
The position relating to Wales is complicated by the fact that it is not a separate legal jurisdiction, but forms part of ‘England and Wales’. A Welsh Statutory Instruments (WSI) is merely a special type of UK SI (unlike an SSI or SR). Any WSI made under devolved powers by the Welsh Ministers or the Welsh Assembly (or Sennedd Cymru) extends to England and Wales. If a provision of a WSI appears to extend beyond England and Wales, consult your Review Editor (but see also the guidance concerning Commencement).
Scotland
Treat all Scottish Statutory Instruments (SSI) as extending only to Scotland. The Scottish Ministers can only make law for Scotland, and although the Crown may make Orders in Council in the form of SSIs, this power is also effectively limited to making law for Scotland. If a provision of an SSI appears to extend beyond Scotland, consult a Review Editor (but see also the guidance concerning Commencement).
Northern Ireland
Treat all Northern Ireland Orders in Council as extending only to NI The same applies to the Statutory Rules (SR) made under them, and to SRs made under Acts of the Northern Ireland Assembly. SRs can also be made under powers contained in UK Acts but, unless there is anything that strongly suggests otherwise, these too should be treated as extending only to NI. If a provision of a Northern Ireland Order in Council or SR appears to extend beyond Northern Ireland, consult a Review Editor (but see also the guidance concerning Commencement).
How to Determine TA
TA Specified
Quite straightforwardly, this can be taken as a definitive statement of the TA.
TA Not Specified
Every instrument has TA as well as extent, but the TA may not be explicitly stated because it can be inferred from the content of the instrument or from relevant provisions of the enabling legislation. Unlike extent, TA is not a technical legal concept, determining the jurisdiction for which the instrument is law. It is no different in principle to any other form of ‘application’, such as to particular persons or matters, and so is rather a matter of ‘fact on the ground’ to be inferred from what the instrument relates to, or limitations on the powers of the person or body making the instrument. For UK SIs, there will almost always be a paragraph in the accompanying Explanatory Memorandum (EM) stating the TA. In the early days of EMs, such statements were treated with some caution and editors were advised always to check their accuracy. However, after several years’ experience of EMs, it is now considered acceptable to rely on these statements. The EM is usually prepared by policy staff in the relevant department. While they may not be so familiar with technical legal concepts such as extent, we can accept that they have a very good grasp of what their SI is meant to achieve, and what and where it applies to. It may still be useful to be aware of the guidance in the following paragraphs. For instruments made under devolved powers, see the relevant paragraphs below.
Although it is very unlikely that the TA of your enabling Act will be explicitly stated, the TA of your instrument may still be governed by relevant provisions. For example, the Act may provide that the Welsh Ministers may make regulations that apply only to Wales, and/ or that the Secretary of State may make regulations that apply only to England. (However, you shouldn’t assume that any power of the Welsh Ministers to make secondary legislation must be limited to Wales. Depending on the wording of the relevant provisions, the Welsh Ministers may have power to make law applying to England as well – see ‘Wales’ below.)
EU Exit and the NI Protocol: Where, in an EM attached to an EU Exit SI or any other secondary legislation amending retained EU legislation, the drafter has used the wording cited below (or similar) in order to indicate that the amended retained EU legislation is subject to the NI Protocol under the Withdrawal Agreement, we should not specify a TA so that the affecting legislation’s UK extent remains unqualified:
“The [retained law] is incorporated into domestic law under [section [3/4] of the European Union (Withdrawal) Act 2018] save insofar as it applies to Northern Ireland for the purposes of the Northern Ireland Protocol. [Accordingly, this instrument will be of no practical application in Northern Ireland as the Northern Ireland Protocol instead applies the [EU law] provisions in Northern Ireland]. [Accordingly this instrument will only have practical application in Northern Ireland in relation to [*]].”
Wales
The devolved power to make secondary legislation for Wales is no greater than the power to make primary legislation. So the guidance on how to determine the TA for primary legislation is equally relevant here. WSIs will nearly always have ‘Wales’ TA. BUT be aware that the power given to the Welsh Ministers to make secondary legislation may sometimes include power to make provision applying also to England. Where a WSI is intended to make any substantive provision in relation to England, you can expect this to be clearly indicated in the WSI (Unfortunately, WSIs are not currently accompanied by any EM to assist you here.) In the absence of any such clear indication, you can assume for TA purposes that any effect of the WSI in relation to England is no more than purely incidental to the effect in relation to Wales, and so need not be taken into account. If a provision of a WSI appears to extend, or to have TA, beyond England and Wales, consult a Review Editor (but see also the guidance concerning Commencement).
See also the Editorial Update guidance Decision tree for deciding what is a limited extent amendment.
Scotland
The TA of an SSI should always be ‘Scotland’, so an SSI should never have a TA more limited than its extent. If a provision of an SSI appears to extend, or to have TA, beyond Scotland, consult a Review Editor (but see also the guidance concerning Commencement).
Northern Ireland
The TA of Northern Ireland Orders in Council and Statutory Rules of Northern Ireland (S.R.) should always be ‘Northern Ireland’, so such an instrument should never have a TA more limited than its extent. If a provision of such an instrument appears to extend, or to have TA, beyond Northern Ireland, consult a Review Editor (but see also the guidance concerning Commencement).
Extent and TA: General points
Commencement Orders: For guidance on the significance of extent and territorial application relating to the commencement effects of commencement orders, see Commencement. A commencement order may also contain ‘direct effects’, such as consequential amendments. If so, the usual principles relating to extent and territorial application will apply in relation to those effects.
Subject headings – a word of warning: An instrument may contain reference to a particular jurisdiction in the subject headings at the top of the instrument, such as “HOUSING, ENGLAND AND WALES”. This is the subject classification and is only intended to give users an indication of the main subject matter of the instrument. It should never be accepted as a statement of the extent or TA of the instrument. It may happen, for example, that an instrument concerned mainly with the law of England and Wales (and bearing a subject classification referring only to England and Wales) contains some consequential provisions that extend or apply more widely, such as to Scotland.
Commencement
See also: Marking up Commencement, Recording Commencement Authority, In Force Date and Qualification Back to Top This guidance shows how to tell when an item of legislation comes into force by referring to its commencing provision(s) and to Commencement Orders or Appointed Day Orders. Extent and territorial application in relation to Commencement Orders is often complex (see the section on Extent, Territorial Application and Commencement Orders below), and editors should tailor annotations (or Extended Tables of Effects) accordingly.
When does an item of legislation come into force?
Legislation can be brought into force in various ways, as described below.
Legislation is silent as to commencement
If the legislation doesn't indicate when it will commence, the date of commencement will be as follows:
- For all types of primary legislation, except Acts of the Scottish Parliament (asps) enacted since 4.6.2010 it is the date of Royal Assent. This can be found in the introductory text in square brackets below the long title. See also Commencement of pre-1793 Acts below.
- For Acts of the Scottish Parliament enacted after 4.6.2010, it is the day following the date of Royal Assent. This date can be found in the introductory text, in the words above the long title).
- For all types of secondary legislation, it is the 'made' date. This can be found in the introductory text, in the first of the italic headings beneath the title of the instrument).
The authority for when 'silent Acts of the Scottish Parliament' enacted since 4.6.2010 come into force is in the Interpretation and Legislative Reform (Scotland) Act 2010 (asp 10), s. 2:
Commencement of Acts of the Scottish Parliament
(1) Subsection (2) applies where no provision is made for the coming into force of an Act of the Scottish Parliament.
(2) The Act comes into force at the beginning of the day after the day on which the Bill for the Act receives Royal Assent.
2010 asp 10, s. 2
Commencement and citation of pre-1793 Acts
From 8.4.1793, with the passing of the Acts of Parliament (Commencement) Act 1793 (33 Geo. 3 c. 13), it was provided that Acts of Parliament should be endorsed with the date they received Royal Assent and that date (in the absence of a specific commencement date) was to be deemed as their commencement date.
Before 1793, Acts which didn’t mention a specific commencement date were deemed to come into force on the first day of the parliamentary session in which they were made and, by convention, it was the usual practice in citing a pre-1793 Act to date it to the year in which the session had commenced. This meant that most Acts came into force retrospectively -- a state of affairs which the 1793 Act stated was "liable to produce great and manifest injustice". (There is an interesting Wikipedia article about the 1793 Act here.)
So it often happened that an Act passed in one calendar year could be dated from the previous year, if the session of Parliament in which that Act was made began the previous year.
For example, the Act of Parliament passed in the seventeenth year of the reign of His Majesty King George the Third entitled “An Act for dividing the Chase of Enfield, in the County of Middlesex; and for other Purposes therein mentioned” (17 Geo. 3 c. 17) (also referred to in the Chronological Table of the Statutes as the Crown lands at Enfield, Middlesex Act and elsewhere as the Enfield Chase Act) was passed in the calendar year 1777 (see a copy of the Act from Statutes at Large reproduced here), but the session of Parliament in which that Act was made began on 25.10.1776 (George III having acceded to the throne on 25.10.1760), so it was deemed to have come into force on that earlier date and was, by convention, cited accordingly.
Also note that the Calendar (New Style) Act 1750 (24 Geo. 2 c. 23) changed the beginning of the new year of 1752 from 25 March, as it traditionally had been up to that point, to 1 January in line with the Gregorian calendar. Before 1752, under the Julian calendar, the year ran from 25 March to the 24 March; from 1752 onwards, the year began on 1 January and ended on 31 December as it does today. (There is another interesting Wikipedia aricle about the 1750 Act here). This fact may also have implications for the year used in the citation of pre-1752 Acts.
Date Specified/‘Fixed Future Date’/ Retrospective
- The legislation may specify a precise date for commencement. This may be the made or Royal Assent date and is usually in the future (‘fixed future date’). For example: “this Act shall come into force on 9th September 2004”. In secondary legislation, the in-force date may also appear as an italic heading at the top of the instrument.
- Occasionally, legislation may provide that it is deemed to have come into force at a date in the past (i.e. it is ‘retrospective’)
- The legislation may specify that it will come into force at the end of a period of time. The commencement provision will typically specify that the Act, or relevant part of it, will come into force: “at the end of the period of 2 months beginning with the date on which it is passed” (i.e. Royal Assent). So if the Royal Assent date is 1.2.2004, the 2 month period ends at the end of the last day of March 2004. And so commencement starts immediately after (i.e. on 1.4.2004). If, however, the commencement is calculated “from” 1.2.2004 (as is usually the case with Northern Irish Orders in Council and other secondary legislation), the calculation would not include 1.2.2004. The result would be that the commencement would be a day later than in the earlier case (i.e. 2.4.2004).
- In the case of secondary legislation, the resultant commencement date will usually appear in an italic heading at the top of the instrument.
Prospective/ Commencement by ‘Commencement Order’
The legislation may confer a power for an order or orders to be made bringing the legislation into force – i.e. it is still prospective (prosp.) when it is made. For Acts, commencement orders take the form of Statutory Instruments (or, in Northern Ireland, Statutory Rules). In the case of a prospective General Synod Measure, an Instrument made by the Archbishops of Canterbury and York will be used to bring it into force.
It is very common for at least part of an Act to be prospective at the date of Royal Assent. It is less common, but secondary legislation may sometimes be prospective and brought into force by commencement order in the same way as Acts. Northern Irish Orders in Council, especially, are often prospective and are brought into force by commencement orders in the form of Statutory Rules. (See further the paragraphs below concerning Commencement Orders and Extent.)
A prospective item of legislation may never be brought into force. Notoriously, the Easter Act 1928 has still not yet been commenced despite receiving Royal Assent on 3.8.1928. (For further information see this article in Wikipedia and this House of Lords Library article "Law but not law")
Event-dependent or conditional commencement
The legislation may specify that it will come into force after a specific event has happened. For example: “on the abolition date” -- the abolition date will then be referenced in that legislation itself or by reference to an Appointed Day Order etc.
But the coming into force date is sometimes less easily ascertained. For example, an S.I. relating to parking provision in London was to come into force on separate dates for each borough, following a resolution of the local council. Other legislation might say that it will come into force on the date of the ratification of an international agreement or treaty.
It is quite common, especially for local Acts, to stipulate that the date of commencement is to be as notified in the London, Belfast or Edinburgh Gazette.
Another common form of event-dependent commencement is to make the coming into force of the legislation conditional upon the coming into force of provisions in other legislation.
Commencement of amendments dependent on another circumstance or event such as notification in an alternative publication or ratification or coming into force of an international agreement or treaty, etc. NEW Policy June 2025
What this new policy means for Preparation Tasks
From May 2025 onwards, we have decided as far as possible to treat the commencement of amendments which are conditional upon notification in the Gazettes or upon the ratification or coming into force of an international agreement or treaty etc using the same procedure that we use for Commencement dependent upon the coming into force of another provision. Where new legislation is made and we do not have a definite start date we will mark the effects as “prosp” and diarise them in the conditional commencement spreadsheet. The diary will then be checked monthly against information in the Gazettes and on Gov.uk and start dates will be added to TOES when relevant notifications are published.
We have added a new sheet to the diary called “Gazette – cond. Commencements” for this purpose. The monthly checker will search for the title of the relevant legislation or Agreement/Treaty in the Gazette website and on Gov.uk:
However, where the conditions are not straightforward we may not be able to employ this new procedure due to the difficulties of working out if the conditions have been met and will be forced to resort to our traditional method: that is, using the default start date as the IF Date and the IF Date Qualification = “coming into force in accordance with” and IFDQOther = [provision setting out the conditional commencement]. If in doubt, please consult your line manager or a review editor. We will also continue to use our traditional method for the commencement of amendments conditional upon notification in the Gazettes of overseas territories or upon a date to be appointed by a Minister of the Isle of Man or the Channel Islands.
What this new policy means for the Editorial Update task
When, during update, you come across conditionally commenced textual amendments where we have used our traditional method of default start date and “coming into force in accordance with” IFDQ, please check in the Gazette or on Gov.uk (using the links above) to see if you can identify a real start date.
If you can identify a real start or if is obvious that the amendment is not in force, please talk to your line manager or a reviewer and arrange to early submit the update for review so that they can substitute the real start date into TOES (or mark the amendment as prosp) via corrections before re-allocating the update back to you.
Please note the annotation format for amendments where the real start date has been notified in the Gazette:
Words in reg. 2(1) inserted (16.11.2009 as notified in the London Gazette dated 21.8.2009) by The Medical Act 1983 (Amendment) Order 2002 (S.I. 2002/3135), art. 1(2)(3), Sch. 1 para. 26 (with Sch. 2)
https://www.legislation.gov.uk/uksi/1989/1230/regulation/2
If it is not clear whether the amendment is in force or prosp, it is acceptable to apply the amendment as a retained text amendment and use “(coming into force in accordance with [provision]” in place of a commencement date. For non-textual amendments, it is acceptable to apply them and use “(coming into force in accordance with [provision]” in place of a commencement date.What this new policy means for the Initial Edit task (no change)
The above change of policy in relation to amendments does not affect our current practice during the initial edit task. Our purpose during this task is simply to create a revised version ready to be updated. The initial editor should therefore continue to check the Gazette or Gov.uk to see if they can identify a real commencement date, but if they cannot then they should use the made date and IFDQ = “coming into force in accordance with [provision]”.
‘With effect’ and ‘with application’
Sometimes a provision comes into force at Royal Assent (or on a specified date etc) but has effect or applies in relation to some different date or period. This happens most commonly in Finance Acts and tax legislation. For guidance on how to proceed editors should consult document EPN001 Finance Acts Effects. For TOES purposes, see Record Effects - IF Date … Qualification.
Mixed Dates
Legislation or any provision within it may be brought into force on different dates for different jurisdictional extents, for different purposes or for specified provisions only.
Different Commencement Dates for Amending Provision and Amendments
It is possible for a provision to be brought into force on one date, but for an amendment made by it to come into force on a different date, or to remain prospective. For an example of the latter, see S.I. 2006/1253 (N.I. 6), arts. 1(2)(4), 5(5), Sch. 2. A specified date for commencement was given for the order as a whole, including art. 5(5) and Sch. 2, but a repeal made by those provisions was to be brought into force by order. In such a case, both provisions would be treated for Initial Edit purposes as fully in force, without any I-Notes.
Where to find the commencement indication
The term “commencement provision” is used to refer to a provision in an item of legislation that states when or how it is to be brought into force.
The commencement provision of an Act, if there is one, is usually to be found at or near the end of the 'main body' (before any schedules); in secondary legislation (including N.I. Orders in Council, it will usually be one of the first two or three provisions at the front. It should be noted, however, that individual provisions elsewhere in the legislation may separately specify commencement dates or contain powers to bring provisions into force, or to appoint a day for some other purpose, e.g. a dissolution date. This may be so even where there is also a commencement provision that appears, on the face of it, to cover the whole of the legislation. So there is never any substitute for a close reading of the whole text.Commencement Orders (or ‘Appointed Day Orders’)
Provisions are often brought into force by a statutory instrument and this normally takes the form of a Commencement Order, which is distinctively identified by a ‘C’ number after the title. These ‘C’ numbers reflect the sequence of Commencement Orders for the year, regardless of the Acts under which they are made.
If any Order appoints a day for commencement we may refer to it as an “Appointed Day Order”. These can be commencement orders and carry a ‘C’ series number, and/or the words ‘Appointed Day’ may appear in the title.
However, the category of Appointed Day Orders is wider than Commencement Orders and they do not necessarily commence any provisions. For example, an Appointed Day Order may appoint a day for a different type of event - the appointment of a 'dissolution date' for instance. However, the appointed date may have the effect of indirectly commencing other provisions (for example, the repeals may be stated to come into force 'on the dissolution date'). This means that for extended TOES (tables of effects) research, if you are allocated an Appointed Day Order that is not formally a commencement order (and has no subsidiary ‘C’ number) but which appoints a day, you need to check whether it has any commencement effects, directly or indirectly. The title of such an order will not necessarily indicate that it appoints a day. If there are no effects the Order should be treated as 'non-affecting'.
Extent, Territorial Application and Commencement Orders
The extent or territorial application of the commencement order does not always determine the extent or territorial application for the effected provisions that are commenced in the relevant Act.
For the purposes of giving effect to the commencement, we are only interested in the extent or territorial application for the relevant provisions of the Act that are being commenced - not the extent or territorial application of the commencement order itself.
So, for Extended Toes purposes, in entries for the ‘commencement effects’ of an order, leave the columns for extent and territorial application of the affecting legislation blank. The extent or territorial application for the effect that is commenced will, if limited, be entered in the ‘In-force qualification’ column.
With devolution, determining the extent or territorial application for the provisions that are commenced by a commencing SI is quite complex, particularly for Wales. The SI does not always make the extent or territorial application clear.If this is the case, refer to the relevant provisions of the enabling Act. Apart from any provisions dealing with extent or territorial application, the commencement provision may, for example, specify the powers of the appropriate commencing authorities (and you may need to refer to an interpretation provision for the definition of “the appropriate authorities”).
Sometimes, different authorities (for example the Secretary of State and the Welsh Assembly) have the power to bring into force the same section for different extents or territorial applications.
On the other hand, don't assume that a Commencement Order made by the Welsh Assembly (or the Welsh Ministers) is limited to bringing provisions into force for Wales only.For example, by s. 67(7)(e) of the Children Act 2004, the Secretary of State has the power to bring s. 56 of that Act into force so far as relating to England, and the Welsh Assembly has the same power so far as relating to Wales. In S.I. 2006/927 the Secretary of State brought s. 56 into force and the order itself did not specify that it related to England only. The only clues to the ‘England’ limitation lay in the reference to ‘ENGLAND’ in the subject heading and references to England in the Explanatory Note. (The section had already been brought into force for Wales by S.I. 2006/885.)
For example, S.I. 2005/558, made by the Welsh Assembly, brings into force a number of sections for the whole of England and Wales in accordance with the power in s. 73 of the enabling Act (the Public Audit (Wales) Act 2004 (c. 23)). The SI itself is silent on the subject (except for a reference in the Explanatory Note).
You cannot even assume that a limit on the extent for which an authority may make law limits the extent for which they may commence legislative provisions. For example, Scottish Statutory Instruments made by the Scottish Ministers can only make law for Scotland. However, S.S.I. 2006/381 commenced a number of provisions of the Serious Organised Crime and Police Act 2005 (c. 15) specifically for England and Wales. This is because Scottish Ministers were not making law for England and Wales, they were simply commencing law already made by the the UK parliament.
Editors need to be on the lookout for such anomalies, particularly if a devolved jurisdiction has any commencing powers in the Act being commenced. Where the extent or territorial application for the provisions that are being commenced is not explicit in the commencement order, check the relevant provisions of the Act, particularly the commencement provision, before starting work. If the position is still unclear, consult your Review Editor. The subject heading of the SI or the Explanatory Note, and footnotes, can give useful pointers (though these are not definitive). For example, in S.I. 2004/2528 the footnote alone gives the clue that a few of the commenced sections are commenced for England only.
For guidance on extent and territorial application of legislation generally, see Editorial Principles - Extent and Territorial Application.
Savings
When you identify effects in new legislation ('marking up'), be aware of the possible presence of 'savings' in provisions (or sub-provisions) that are secondary to the main affecting provision (or sub-provision) that you may need to cite.
A saving is a provision ancillary to the main affecting provision, which has an impact on the nature or scope of the effect. A saving, therefore, is a provision which in some way limits or qualifies an effect that we have identified, and we need to flag this up to the user. In principle, everything in an item of legislation must be read in the context of everything else in that item of legislation. However, we don't want to overload annotations with references of little relevance, and we are not aiming to serve as a substitute for a user reading the text as a whole themselves. The editor should therefore be discriminating and only identify as savings those provisions which materially limit or qualify the operation of an affecting provision.
What we mean by 'savings'
The strict definition of a saving is quite limited:
In practice, though, we try to be helpful to users by identifying any other provisions that appear to qualify the effect in some way.“A saving is a provision the intention of which is to narrow the effect of the enactment to which it refers so as to preserve some existing legal rule or right from its operation”
Francis Bennion in ‘Statutory Interpretation’.
This guidance covers savings in this looser sense of the word. It is not concerned with identifying ancillary provisions that form part of the authority for an effect, or relate to the time period to which it relates.
You do not need to go to great lengths to find every single provision that may have some minor bearing on the application of the affecting provision. Bear in mind, however, that an Act etc. always has to be read as a whole. In principle, everything in an Act may impact on everything else and users are still responsible for ensuring that they have understood the precise effect of the amendments.
For legislation.gov purposes, savings are broken down into two types:- “Common form” savings or other qualifiers relating to the nature or scope of the amendment
- “Substantive savings” that preserve the existing law (i.e. without the amendment) for some substantive purpose, class of persons, etc.
Common Form savings (and other qualifiers)
Very often, legislators make provision to preserve the position in relation to things that may have been done or started (relying on the old law), before an amendment comes into effect. This is called a common form saving. By their nature, these savings are usually transitory or transitional.
We also use this category to catch any other qualifications to an affecting provision which don't really form part of the main authority for the effect, but fall short of being substantive savings (see below). Many different forms of words may be used by drafters to indicate savings or similar qualifications which potentially limit or qualify all the effects of the specified legislation; they are often indicated by words such as: "Nothing in this [section, Act, etc.] shall ..."
We also treat as common form savings any provisions relating to Crown application (usually to the effect that the legislation does or does not bind the Crown). It is permissible to include in this category provisions defining the scope of an effect which, while not expressed as limitations or qualifications, implicitly limit its scope (BUT careful consideration should first be given to whether that provision should more properly be cited as part of the authority for the effect, rather than as a saving).
This category is also a ragbag for any other qualifications that do not, strictly speaking, appear to amount to a saving.
Common form savings include the following:
- Most provisions that start with words like: “Nothing in this Act shall affect…” and “Regardless of any provision in this Order...”, which could potentially qualify any amendments made by that item of legislation.
- Any provision that relates to Crown application (for example that the Act does, or does not, bind the Crown).
- Provisions that set out the scope or application of the SI/Act etc. ( Don't confuse ‘application’ here with time-related effects/applications – for which see TOES guidance).
This is a common form saving and would be noted underneath the annotation for the effects in article 16(2)(b) and (3) as “(with art. 19)”.“The amendments made… by article 16(2)(b) and (3) shall not apply to any registration under the Act which has resulted from an application made before the coming into force of this Order.” (S.I. 2006/1974, art. 19)
All the amendments made by the Act would in principle be marked '(with s. 129)', but in this case, for convenience, the marking would go on the front cover under “Savs etc.” as: “s. 129 for all entries”"This Act binds the Crown” (2002 c. 9, s. 129).
All repeals are therefore qualified and so the annotation would be “(with Sch. 12 para. 1)” – but again, this would in practice be marked on the front cover under “Savs etc.”“Nothing in the repeals made by this Act affects the validity of any entry in the register” (2002 c. 9, Sch. 12 para. 1)
In this case the SR sets out the scope or application of the SR. In this scenario the wording of the provision is not expressed in such a way as to obviously limit or qualify the effect. Instead it is positively phrased and clarifies who or what is affected rather than who or what is not. This is worth noting for the benefit of our users and it could imply that certain other persons/categories etc. are excluded. There is also the possibility that an implied limit on scope could make an apparently textual effect merely a non-textual one. The marking would go on the front cover under “Savs etc.” as: “reg. 3 for all effects”“These Regulations apply to institutions of further education.” (S.R. 2012/306, reg. 3)
This is similar to the previous example.“These Regulations apply with respect to any case where the driving of a vehicle has been prohibited under . . .” (S.R. 2012/19, reg. 3(1))
Substantive savings
A substantive saving is simply a saving provision that preserves the pre-amendment position for some substantive purpose. The saving is not merely transitional or transitory but keeps the pre-amendment law alive indefinitely, perhaps in relation to some specified class of persons, circumstances etc.
Example:
In other words, for two entire classes of vehicles, the law as it stood prior to the amendments continues to apply indefinitely. The saving provision would be marked against regs. 9 and 10 as: “(with reg. 24(2))”.“The amendments made by regulations 9 and 10 of these Regulations shall not apply in relation to the examination of vehicles classified . . . as vehicles of Class VI or Class VIA.” (S.I. 2003/1113, reg. 24(2))
[NOTE: There is no longer any distinction made between common form and substantive savings in the way in which they are indicated in the markup, in ToEs, or in the revised text. In the former practice, a substantive saving, such as the one above, would have been indicated in the annotation by using the form of words: “(with saving in reg. 24(2))”.Powers
See also: Marking up Powers, Recording "Contains Power" in Comments for Editor Back to Top Any power to legislate "by statutory instrument" is a relevant power for our purposes. This is to be distinguished against general powers to do other things which do not require the making of secondary legislation to be effective (for example: to revoke a final designation, or request reports). Editors should especially be aware that powers conferred on a court to make court orders are not powers to make secondary legislation, and should not be confused with Rules of Court, which are.
Working out if something is actionable by statutory instrument is not always straightforward; sometimes the wording is clear and contained within the same provision which confers the power. Sometimes you may have to check in other sections; for example, the Interpretation section of an Act, where it may declare that any power in that legislation to create Rules, for example, is exercisable by statutory instrument.
We also distinguish between main and ancillary powers. The main power is the provision which confers the power to make secondary legislation. However, other provisions may give further instructions as to what may or must be included in, or done by, the statutory instrument when enacted; who is empowered to make it, and how it must be made, for example. These further details are ancillary powers and they should be flagged up as well as the main power-conferring provision.
Note: Provisions which merely induce schedules containing powers are not themselves power-conferring. Also, the guidance does not ask the drafters to cite "negative" powers; in other words, we do not need to cite provisions which say what must not be done by means of the SI.
Some powers are easily identifiable in the text. However, as good practice, editors should always check by using the Ctrl+F function to search for key words which may alert you to the presence of a power. Buzzwords include, but are not restricted to:
- "appoint"
- "prescribe"
- "order"
- "designate"
Where these words are identified in a piece of amending legislation, editors should read around the relevant provisions to assess if they are conferring a power or not.
Power to Make Subordinate Legislation
Primary legislation often contains provisions that confer on someone (His Majesty in Council, a Minister, the Secretary of State, a government department, or any other body or person) the power to make subordinate legislation, also known as secondary legislation. Subordinate legislation itself sometimes confers power to make other subordinate legislation (if the power to do so is in turn conferred by primary legislation).
Is it subordinate legislation for our purposes?
We are only interested in powers to make subordinate legislation of the types that are carried on legislation.gov.uk, mainly Statutory Instruments, Scottish Statutory Instruments, and Statutory Rules of Northern Ireland. (For a full list, see {http://www.legislation.gov.uk/browse legislation.gov.uk.
So, for example, s. 9(1) of the Telecommunications Act 1984 (c. 12) provides that
and s. 104(1) of the Act stipulates that"The Secretary of State may by order designate as a public telecommunication system any telecommunication system"
This is therefore a power to make statutory instruments and is counted as a power for our purposes. On the other hand, s. 2(1) of the Terrorist Asset-Freezing etc. Act 2010 provides that"Any power of the Secretary of State to make an order . . . under this Act shall be exercisable by statutory instrument"
but doesn't say anywhere in the Act that this is to be effected by a statutory instrument. This is clearly a power to do something, which would doubtless involve making a document which would have legislative effect, but we don't count it as subordinate legislation and we would not treat this as a 'power' for our purposes.“The Treasury may make a final designation of a person for the purposes of this Part . . .”
Main and Ancillary Powers
A section in an Act may confer a power on a Minister, Secretary of State etc. to make subordinate legislation about a particular matter (the main power). Other sections may make further provision as to what may or must be included in, or done by, the instrument, who is empowered to make it and by what means it is to be made. We call these 'ancillary powers' and they are also treated as powers for our purposes.
An ancillary power may include provision defining, for example, “the Minister”, “prescribed”, “regulations” etc. Such terms are often defined together in the interpretation section of the Act. It may be a provision specifying the type of instrument to be used (e.g. "by regulations"). On the other hand, a provision merely specifying the relevant Parliamentary procedure is not treated as an ancillary power. Neither is a provision which specifies that the relevant powers are to be exercisable by statutory instrument. The criteria for identifying an ancillary power are set out in the official procedural guide for drafters, the Statutory Instrument Practice at paras. 3.11.11 to 3.11.23 in the 5th Edition. The relevant passages read:"3.11.11 The preamble should recite every enabling provision that the SI derives its validity from or through, whether they are in primary or secondary legislation. It should specify the relevant section, subsection and paragraph."
"3.11.14 The enabling provisions include all of those that make clear:● what may, or must, be done;
● by what means something is to be done; and
● who is empowered to do it."
"3.11.15 For example, citing a provision that empowers ‘the Minister’ or ‘the Authority’ to ‘prescribe’ certain matters also requires a reference to:(a) the provision which defines the expression ‘the Minister’ or ‘the Authority’, or which specifies which Minister or Authority is to exercise the power;
(b) the provision which defines ‘prescribed’, which might define it as meaning specified in Regulations; and
(c) the provision (if any) which defines ‘Regulations’."
"3.11.21 You should cite a provision that specifies whether the power is to be exercised by the making of Rules, Regulations, an Order or some other kind of subordinate legislation."
"3.11.22 You should not cite provisions that merely specify the relevant Parliamentary procedure, or merely provide that the relevant powers are to be exercisable by SI."
Note that these instructions are directed to the drafter of secondary legislation, so this makes it clear that the provisions we want to identify as power-conferring in the Act should be the same as those that would be cited as enabling powers in the preamble to any instrument subsequently made under the relevant provisions of the Act.
As an illustration, the preamble to The Education (Student Support) Regulations 2005 (S.I. 2005/52) tells us that the instrument is made under powers contained in ss. 22, 42(6) and 43(1) of the Teaching and Higher Education Act 1998 (c. 30). S. 22 of that Act confers on the Secretary of State the main power to make regulations providing for the making of grants or loans to students for any "prescribed purpose"; s. 42(6) (which makes general provision about orders and regulations under the Act) provides that ". . . regulations under this Act may . . . contain such incidental, supplemental, saving or transitional provisions as the Secretary of State thinks fit"; and s. 43(1) (interpretation) defines “prescribed” as meaning "prescribed by regulations". These last two are 'ancillary powers' and all three are powers for our purposes.
It is worth noting that, in this case, the provisions of the Act mentioned are only power-conferring at all for our purposes because of a provision which is NOT mentioned. S. 42(1) provides that "Any power of the Secretary of State to make an order or regulations under this Act shall be exercised by statutory instrument", but it is (correctly) not cited as an enabling power in the preamble to the SI.How to Identify Powers
UK and general
A power can occasionally be set out quite clearly in one place. For example, a section may provide that "The Minister may by order made by statutory instrument prescribe . . ." etc. However, in most cases you will need to refer to one or more other provisions to establish whether what appears to be a power really is one for our purposes. The examples below illustrate relevant provisions of Acts, and how they may inter-relate.
- The existence of a power may be indicated by a reference to the making of an order, regulations etc., or by words such as “may appoint”, "as may be appointed", “may prescribe”, "as may be prescribed". Although these terms strongly suggest a power, in each case you need to confirm that the power is exercisable by statutory instrument (or SSI or SR).
- Approach the term “order” with caution as there are many types of order which are not secondary legislation. In particular, the power of a court to make a court order is not a power for our purposes. But note that Rules of Court, which regulate the machinery of justice, are always made by statutory instrument, and this can simply be assumed.
- Any power conferred by an Act on His Majesty to make Orders in Council is exercisable by statutory instrument by virtue of the Statutory Instruments Act 1946 (c. 36), s. 1(1)(a).
The provisions defining relevant terms, such as "prescribed", "regulations", "the Minister", etc. are sometimes in or near the section containing the supposed power. If not, you can usually find them in the interpretation section towards the end of the Act (or, sometimes, the Part or Chapter).
Similarly, you can usually find the provision that orders etc. are to be made by statutory instrument in the general provisions at the end of the Act, often in a section titled something like "Orders and Regulations". (If the power-conferring legislation is itself secondary legislation, these general provisions are usually to be found at the front of the instrument.)
NOTE: there are special rules relating to the secondary legislation of Scotland and Northern Ireland - see below.NOTE: The definition of Rules of Court is given in Schedule 1 of the Interpretation Act 1978 (c. 30). The rules governing the conduct of military Courts-Martial are Rules of Court.
Northern Ireland
The primary legislation of and for Northern Ireland (mainly Acts of the Northern Ireland Assembly and Northern Ireland Orders in Council) does not usually contain provision for orders, regulations, rules etc to be made by Statutory Rules of Northern Ireland (S.Rs.).
Such provision is unnecessary because the Statutory Rules (Northern Ireland) Order 1979 (S.I. 1979/1573 (N.I. 12) defines S.Rs. and specifies who can make them (“rule-making authorities”). Broadly speaking, this means that you can assume that where the Order or Act provides for orders, regulations, rules etc. to be made by the Secretary of State or a Northern Irish government department or minister, it is a power to make S.Rs.
If the power is given to some other body, you will need to check whether it is a “rule-making authority” under the 1979 Order, or whether there is provision in the legislation declaring such orders to be S.Rs. for the purposes of the 1979 Order. The Order also identifies statutory provisions empowering the making of schemes that are statutory rules. [Note that, where the relevant power is contained in a UK Act, it will only be exercisable by S.R. if the power is expressed to be so exercisable, by virtue of rule 4(a)(iv) of the 1979 Order. See the example in 2004 c. 33, s. 248(3) below.]
Scotland
From April 2011 Acts of the Scottish Parliament no longer need to specify that orders, regulations or rules made by the Scottish Ministers, the First Minister or the Lord Advocate are to be made by statutory instrument. The Interpretation and Legislative Reform (Scotland) Act 2010 (asp 10), s. 27 provides that all such instruments are to be Scottish statutory instruments (SSIs).
The section also provides that Orders in Council made by Her Majesty under Scottish devolved powers, and Scottish rules of court, known as Acts of Sederunt and Acts of Adjournal, are to be SSIs.
Acts of the Scottish Parliament may still contain provision that other subordinate legislation, not falling within those criteria, are to be made by SSI [Note that the 2010 asp does not affect the position in relation to UK primary legislation, so specific provision still needs to be made in UK Acts wherever orders etc. are to be made by SSI.]
Examples of powers
Act 1
Act 2The Civil Partnership 2004 (c. 33)
S. 21(1) “Notice must contain such information as may be prescribed by regulations.”
S. 14(2) “Regulations may make provision as to the contents of a civil partnership schedule”
S. 34(1) “The Chancellor of the Exchequer may by order provide for fees . . .”
S. 36(4) “Any power to make regulations or an order under [the above provisions] is exercisable by statutory instrument”. [Though not itself power-conferring, this establishes that the above provisions are.]
S. 43(2) “Rules of court may make provision for enabling . . .”
S. 239(1) “Her Majesty may by Order in Council make provision . . .”
S. 248(2) “The Department of Finance and Personnel may by order . . ."
S. 248(3) "The power to make an order under subsection (2) is exercisable by statutory rule for the purposes of the Statutory Rules (Northern Ireland) Order 1979 (S.I. 1979/1573 (N.I. 12))” [Again, not itself power-conferring, but establishes that the above sub-provision is.]
Act 3The Trade Union and Labour Relations (Consolidation) Act 1992 c. 52
Sch. A1 para. 169A(1) “The Secretary of State may by order make provision . . .”
Sch. A1 para. 169C(1) “An order under paragraph 169A . . . may . . ." [further details about what may be done by the order made under para. 169A]
S. 169(2) “An order under[Sch. A1] paragraph 169A or 169B shall be made by statutory instrument”Land Drainage Act 1991 (c. 59)
S. 22(2) “an application for an order . . . shall contain . . . such further particulars as the appropriate Minister may prescribe ...”
S. 48(4) “Every drainage rate shall be in the prescribed form . . .”
S. 65(1) "Each of the Ministers shall have power to make regulations . . .for the purpose of prescribing anything which may be prescribed under this Act . . .”
S. 65(2) "The power to make regulations under this section or any other provision of this Act shall be exercisable by statutory instrument"
S. 72(1) "“prescribed” means prescribed by regulations under section 65 above”Searching for main and ancillary powers
Finding powers requires close reading of the text in all cases, but it can be made easier by using the website search facilities, e.g. by using “trigger words” such as regulat*, rule, order, prescrib*, statutory instrument, appoint*.
(*this will ensure the inclusion of variants, such as “-ion”, “-e”, “-ed”, “-ing”)
Once you have found a “trigger word” ,you must still check the wording of the provision, and other relevant provisions, to ensure that a power to make subordinate legislation is indeed being conferred.Additional points to note
- Inducing sections: Where a power is conferred by a paragraph in a Schedule, the inducing section in the body of the Act is not treated as a power-conferring provision (unless, of course, it contains another power itself).
- Whole provision only: Powers are always treated as residing at the level of the relevant whole provision, such as a section of an Act or a paragraph in a schedule. They are not treated for attribute (metadata) purposes as residing at the sub-provision level, or at the higher level of division (i.e. not at Part or Schedule level, unless, of course, that Part or Schedule is itself the lowest level of whole provision containing the power).
- Repealed provisions: Once a power-conferring provision is repealed, it obviously no longer confers power. What is less obvious is that the attribute 'confers power' is also removed from the metadata (unlike the 'extent' attribute which remains in place, even though it has no extent either).
Blanket Amendments
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‟.
Blanket amendments may, therefore, have application to a potentially unlimited number of other pieces of legislation. In practical terms, it is very difficult for us to mark the effect of a blanket amendment against every piece of legislation for which it may have relevance, but editors nonetheless need to flag such amendments up.
Blanket amendments can be found in both primary and secondary legislation, and they can make both textual and non-textual amendments. Blanket amendments are typically identified by the words "...any other enactment/Act/statutory instrument...".
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 effects you should:
- Read the affecting provision carefully and ensure you are clear on what words needs editing and whether there are any exceptions to the amendment.
- 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 highlight the task in the ‘Resource Manager’ window and a new annotation will be created (unless the words are in the same provision and then you will get just one annotation).
- The annotation should read “Words in Act substituted XX” or “Words in Measure substituted” – the individual provisions will not be specified.
Blanket powers to amend
There is no practical purpose in recording general powers to amend as if they were blanket amendments; they are only of interest to users if the power is actually exercised, in which case they would usually be exercised as specific (i.e. non-blanket) amendments. In addition, blanket powers to make consequential amendments are so common that we would be cluttering up the system with useless information were we to flag these up. We are only interested in actual blanket amendments, not potential blanket amendments.
Collective titles
Sometimes affected items of legislation may be referred to collectively (for example: 'the Education Acts', 'the Fisheries Acts') but the individual items of legislation are not listed. Although these resemble blanket amendments, we do not treat them in the same way. The editor should identify the individual items of legislation comprised in the collective title and list them in the markup. The affecting provision should not be marked with a 'B' (unless, of course, it also contains one or more genuine blanket amendments).
In order to identify the relevant affected legislation, editors should first check to see if the items of legislation are defined internally, for example in the Interpretation section of the affecting legislation. There are some frequently occurring collective titles of Acts for which there are lists which we keep up to date. These are: [To be listed here with links to the documents]
Some collective titles are defined in the Interpretation Act 1978 c. 30. These are: the Corporation Tax Acts; the Immigration Acts; the Income Tax Acts; the Lands Clauses Acts; PAYE regulations; and the Tax Acts. They are not, however, listed there (or not fully listed), so this is just a starting point for the research. (See also the note below concerning Tax Acts.)
Note: a special editorial procedure applies to 'collective title' amendments to Tax Acts (that is, the Tax Acts, the Income Tax Acts, or the Corporation Tax Acts). Effects on these are annotated only against 1988 c. 1 (the Income and Corporation Taxes Act 1988). Therefore, all relevant effects are to be marked up as effects on 1988 c. 1 at Act level with wording as appropriate, e.g. 'Tax Acts mod.', 'Corporation Tax Acts excl.', etc.
Errors in Legislation - Lex Errors
See also: Identify Effects - Errors in Legislation - Lex Errors Back to Top Very occasionally, when you are given an editorial task you will find an error in the legislation. This could be a typo (spelling or punctuation error, for example) or an instruction that doesn't make sense, for example to substitute a word in section 5, when there is no section 5.
If you find an error in the legislation don't correct it or make assumptions about what should be done. It's tempting to correct an obvious spelling mistake, for example, or to decide that the substitution was meant for section 4 not section 5, but doing do could cause serious problems. Instead, stop the editorial work that you're doing and consult a Review Editor. Describe the error, and copy and paste the link (URL) to the error in your email, so that the reviewer can see exactly where (and in which version) the error occurred.
There are three main ways that errors happen:
- The first are known as 'Lex Errors'. What this means is that the mistake was in the made and laid version of the legislation. The National Archives does not have the authority to make any changes to the laid version of an item of legislation. We need to contact the government department that made the legislation. If you find a Lex Error, send the details of the error in an email to the SI Registrar and make a note for the Review Editor “Lex error reported”.
- Sometimes though, an error occurs during the transformation process (the process of taking the laid version and transforming it for publication on legislation.gov.uk) and the error is therefore in the XML. The errors may look similar to Lex Errors, but their cause is different and different action is required. We need to check what caused the error, and if it is an XML error, we can then fix it.
- Sometimes the error may have occurred because of a mistake in previous updating work. This sort of error can be fixed by the reviewer.
In summary, don't correct errors or make assumptions. Flag the error to a Review Editor and follow their advice. If a lex error is confirmed, email the details to the SI Registrar and make sure you have noted this for the Reviewer (so that they know it has been reported), before moving on to the next editorial task.
For errors found in Northern Ireland legislation, please email details to the NI Statutory Publications Office.
e.g. “This Act extends to Scotland only.”