Editorial Update/Applying “amendment to earlier affecting provision” and knock-on effects
Background
An “amendment to earlier affecting provision” effect is recorded where there is an amendment to a provision that is itself an affecting provision, which has implication for the “earlier” amendment made by that affecting provision. Further details about the identification and recording of these effects can be found here:
Editorial Principles - Amendments to earlier affecting provisions
Identify Effects - Marking up knock-on effects and amendments to earlier affecting provisions
Record Effects - Amendments to earlier affecting provisions
If an amendment is be made to the commencement, extent, savings or transitional provisions of an earlier affecting document, we need to consider the implications of this amendment, as we may need to carry out a TOES correction of the original effect and add an appended commentary.
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. Further details about the identification and recording of these effects can be found here:
Editorial Principles - Knock-on effects
Identify Effects - How to mark up a knock-on effect
Record Effects - Knock-on effects
How does an “Amendment to earlier affecting provision” effect get dealt with during update?
If an affecting provision gets amended by another document, we need to reflect any changes to the amendments made by that ‘earlier’ affecting provision the provision that it affects (referred to as the ‘original amendment’):
• an appended commentary gets added to the annotation for the original amendment;
• if relevant, textual amendments are made.
Note that the original amendment may have already been carried out, or may be due to be carried out at the same time as the “amendment to earlier affecting” provision effect is applied.
Before you carry out an “amendment to earlier affecting provision” amendment, you need to find out about the original amendment by looking at the both the affecting and affected provision for that original amendment.
• Is the original amendment textual or non-textual?
• Is the start date of the subsequent “amendment to earlier affecting provision” effect after, before or the same as that of the original effect (i.e. whether the original amendment has already been applied or not).
If the original amendment is non-textual: the original effect will usually have been applied at an earlier PiT and you will need to locate and update the annotation for the original effect, as described in more detail below.
If the original amendment is textual: Update Editors should particularly look out for “amendments to earlier affecting provisions” which may result in a change to the text, which usually come into force before or simultaneously with the original textual amendment. You will need to carry out the original textual amendment (as amended) and add the appended commentary for the “amendment to earlier affecting provision effect”. In addition to the “amendment to earlier affecting provision” effect task, there will also be a task for the original amendment. If the original effect is textual and has already been made at an earlier PiT (N.B. this is rare): you will need to make any necessary textual amendments and update the annotation for the original effect. The approach to dealing with these effects is described in more detail below.
What does an “amendment to earlier affecting provision” update task look like?
This is how an “amendment to earlier affecting provision” effect will appear in an update task:
It is categorised as a textual amendment, whether or not the original amendment is textual or non-textual and will appear either as a high level or provision level task, depending on the level of the provision being affected.
The update details will appear as (for example):
If you hover your cursor over the words highlighted above, you will see the full details of the effect:
In this example, the affecting provision is SI 2023/441, reg. 7(1):
https://editorial.legislation.gov.uk/uksi/2023/441/regulation/7/made#regulation-7-1
It contains a textual amendment to SI 2020/61, Sch. 1 para. 4, which itself contains a non-textual “applied (with modifications)” effect to 1997 c. 68 (this non-textual effect is the original amendment):
https://www.legislation.gov.uk/uksi/2020/61/schedule/1/paragraph/4
The earlier non-textual effect is being amended by SI 2023/441, reg. 7(1)), and it is this amendment to the earlier affecting provision that needs to be reflected in the original affected provision in 1997 c. 68, by adding an appended commentary to the existing annotation for the original amendment that was applied on 31.12.2020:
Act applied (with modifications) (31.1.2020) by The Immigration (Citizens Rights Appeals) (EU Exit) Regulations 2020 (S.I. 2020/61), reg. 1(1), Sch. 1 para. 4 (as amended (8.5.2023) by The Immigration (Citizens’ Rights Appeals) (EU Exit) (Amendment) Regulations 2023 (S.I. 2023/441), regs. 1(2), 7(1))
If the original amendment had been textual, in addition to adding an appended commentary to the annotation for the original “earlier” effect, textual amendments would also need to be made. This is explained in the “Original Amendment is Textual” section below.
How to apply an “amendment to earlier affecting provision” effect
The first step in applying an “amendment to earlier affecting provision” effect is to locate the original amendment in your affected provision. Preview the affected provision and look for the annotation with the affecting provision that matches the “amendment to earlier affecting” provision effect details. This will tell you whether the earlier amendment is textual or non-textual and you will know which annotation you need to add an appended commentary to.
Original Amendment is Non-textual
“Amendment to earlier affecting provision” effects usually happen to non-textual amendments where their start date is after the IF Date of the original amendment. In this case, we need to add an appended commentary to the end of the original I-note or C-note annotation text to say: “(as amended ([date]) by …, etc)”.
To get the details for this appended commentary, you can insert the F-note for the amendment to earlier affecting provision effect (which you will need to remember to delete when you have finished), and then copy and paste the details you need from this F-note into the original C-note annotation, as follows:
1. Place your cursor where you want the annotation reference to go in the XML (it doesn't matter too much where you place it, as you will be deleting it again when you have finished, but it may be a good idea to put it next to the C-note reference for the original non-textual so you can find it more easily when you come to delete it).
2. Select the “amendment to earlier affecting provision effect” task in the Task Manager and select Insert Commentary from the Legislation/Non-textual Amendments menu:
This will insert an F-note reference and annotation for the effect:
3. Merge the details of this new “amendment to earlier affecting provision” annotation with the details for the original C-note, by adding the words “(as amended by” and then the date and affecting document details and a closing bracket, as shown in the example below:
Pt. 1 extended (Isle of Man) (with modifications) (13.3.2008 for specified purposes and 1.5.2008 in so far as not already in force) by The Immigration (Isle of Man) Order 2008 (S.I. 2008/680), arts. 1(2), 5, 6(2)(a), 7, Sch. 3, Sch. 10 Pt. 1 (with Sch. 2 para. 2) (as amended (31.12.2020) by The Immigration (Isle of Man) (Amendment) Order 2020 (S.I. 2020/1214), arts. 1, 6(2)(3))
Note that you can just add the appended commentary to the existing annotation, you do not need to take steps to prevent the appended commentary “trickling back” into the annotation at previous PiTs, as you would with textual amendments (described below).
Annotation format: for advice on when to cite the full or abbreviated version of the appended commentary, dealing with multiple amending documents and simplifying multiple amending sub-provisions in the appended commentary, see below.
4. Scroll back up and delete the F-note reference for the “amendment to earlier affecting provision” annotation before checking the provision back in and previewing your amendment.
Original Amendment is Textual
“Amendment to earlier affecting provision” effects may happen to textual amendments where their start date is dated before or on the same date as the IF Date of the original amendment (i.e. they change the amendment while it’s still prospective). The start date should have been set to the same date as the original amendment in TOES, so the two dates coincide with each other. During update we would first carry out the original amendment and then insert an F-note for the “amendment to earlier affecting provision” and copy and paste its details as an appended commentary to the end of the original annotation (but this time we don’t mention the date), using the format “(as amended ([date]) by …, etc)”.
We occasionally get changes to textual amendments after they have come into force, but these should be treated with caution as the drafters have probably also drafted a direct effect to the target item of legislation as well as changing the affecting document and we probably haven’t noticed this while entering TOES. However, probably due to drafting errors, it does happen occasionally. There may also be situations where a subsequent amendment is made to an affecting provision that doesn't result in a textual amendment to the original amendment, however the annotation will still need to be amended.
Carrying out the amendment
1. If the amendment does make a textual change to the original amendment, the text of the amendment itself needs to be changed (i.e. the words of the inserted or substituted text), or the text that gets repealed needs to be changed as the case may be, to reflect how the amendment has been changed. Do a manual edit of the text you are amending - not as an amendment (which would generate square brackets and an annotation), but by adjusting the tagging as needed and pasting in or removing any text. We don’t put new brackets around these additional changes as it’s all covered in our changed annotation.
2. Insert a new F-note for the “amendment to earlier affecting provision” effect:
- Place your cursor where you want the annotation reference to go in the XML. It's a good idea to place this next to the original amendment so that you can find it easily, as you will need to delete it again when you are finished.
- Select the “amendment to earlier affecting provision effect” task in the Task Manager and select Insert Commentary from the Legislation/Non-textual Amendments menu:
This will insert an F-note reference and annotation for the effect:
3. Merge the details of this new "amendment to earlier affecting provision" annotation with the details for the original F-note as follows:
- If the start date of the subsequent amendment is the same as the original amendment, make sure you have carried out the original amendment first (which will be at the same PiT), and then you can copy the details from the new F-note into the existing annotation for the original amendment adding “as amended by ...” to merge with the text of the new annotation. You don't need to include the date in the appended commentary, as it is the same as the date of the original amendment. Once the annotations have been merged, the now obsolete F-note reference for the “amendment to earlier affecting provision” effect needs to be deleted.
- If the start date of the subsequent amendment is after the original amendment, you will be working in a later PiT than the one in which the original amendment was carried out and you will need to deal with it slightly differently to make sure that the details for this amendment don't “trickle” back into the earlier PiT. After you have inserted the new F-note for the “Amendment to earlier affecting provision”, you should copy the details of the original amendment from the existing annotation into this new F-note adding “as amended ([date]) by ... ” to merge with the text of the new annotation. You should also change the commentary ref attribute in the amendment bracket from its current id to the id of the newly inserted annotation, so it points to that new annotation instead. You should then delete the original annotation for the amendment, as it is no longer needed, although it should be removed automatically when you check the provision back in if you have amended the CommentaryRef attribute of the F-note reference to point to the new annotation. Once you have changed the CommentaryRef attribute of the F-note reference for the original amendment to point to the new annotation, you will need to delete the F-note reference for the “amendment to earlier affecting provision” annotation you inserted, otherwise you will see two F-note references for the amendment when you preview the provision.
Annotation format: for advice on when to cite the full or abbreviated version of the appended commentary, dealing with multiple amending documents and simplifying multiple amending sub-provisions in the appended commentary, see below.
4. Check the amendment back in. If you preview the provision at this stage, you can check the annotation has formatted correctly and that any annotations that should have been removed have been. If you are working in a later PiT than that of the original amendment, you should also check the previous PiT, which should show the annotations in their original form, before the amendment to earlier affecting provision occurred.
For example:
Start date of the original amendment and the “amendment to earlier affecting provision” are the same
Sch. 3 substituted (27.10.2017) by The Public Water Supplies (Scotland) Amendment Regulations 2017 (S.S.I. 2017/281), reg. 1(1), sch. 2 (as amended by The Public and Private Water Supplies (Miscellaneous Amendments) (Scotland) Regulations 2017 (S.S.I. 2017/321), regs. 1, 3(3)(a)(b))
N.B. The date of the subsequent amendment is not included in the annotation
Start date of the original amendment is earlier than the “amendment to earlier affecting provision”
Words in Sch. 3 inserted (5.10.2015) by The Single Use Carrier Bags Charges (England) Order 2015 (S.I. 2015/776), arts. 1(c)(ii)(d), 17 (as amended (21.5.2021) by The Single Use Carrier Bags Charges (England) (Amendment) Order 2021 (S.I. 2021/598), arts. 1(2), 3)
N.B. The date of the subsequent amendment is included in the annotation
5. You will see in the preview that the amended annotation will not have all the hyperlinks enabled. To rectify this, you will need to check the provision out again, copy the plain text from your preview and paste it over the existing annotation text and then check it back in again. The system will then add in all the links, which you can check in preview.
For more detail see the first example in the Scenarios below (subsequent amendments are after the start date of the original amendment, and the dates for these subsequent amendments have been included in the annotation. Note that the example also shows how to deal with subsequent amendments for limited extent).
Note:
- The insertion of an F-note for the “amendment to earlier affecting provision” effect will ensure that the commentary that is appended to the original amendment annotation will show from this PiT onwards, making it clearer that there has been a textual amendment at this PiT. However, this F-note can be deleted again once the new details have been merged into the original annotation where you are dealing with a subsequent amendment with the same start date as that of the original amendment. Where the subsequent amendment is made after the original amendment has come into force, the newly inserted F-note supersedes the original F-note and the original F-note is deleted once the annotation details have been merged. This ensures that the new details do not “trickle” back into the previous PiT.
- The subsequent amendment may not alter the original amendment textually, in which case you should follow steps 2-4 and you won't need to make any amendments to the text. See an example here.