Gls Statutory Instrument Drafting Guidance

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GLS STATUTORY INSTRUMENT

DRAFTING GUIDANCE

August 2018

GLS STATUTORY INSTRUMENT DRAFTING GUIDANCE

PREFACE

This is general guidance for GLS lawyers on the drafting of statutory instruments which draws upon a number of Departmental guides on the subject. The Guidance contains advice on good drafting practice. Drafters will also want to refer to the current edition of Statutory Instrument Practice (“SIP”) which is a detailed guide to the process of producing SIs and, where appropriate, this Guidance cross-refers to SIP.

The Guidance is maintained by the Government Legal Department’s SI Hub, and updates will be placed on the Legal Information Online Network (LION) Secondary legislation site from time to time.

The SI Hub is a team of GLD lawyers who specialise in drafting statutory instruments. For further information about the role of the SI Hub see “A guide to working with the SI Hub for GLD lawyers”, available on the Secondary legislation site on LION.

This (August 2018) reissue of the Guidance has not been comprehensively updated to reflect all changes that have occurred since the previous edition of December 2016. The 2016 edition contained extensive cross-references to SIP, and substantive material based on the contents of SIP, that have become inaccurate since the publication of the 5th edition of SIP in November 2017. This reissue has updated all references to SIP, and has tried to avoid unhelpful duplication of detailed material covered in SIP (and some other sources). While the opportunity has also been taken to update some other aspects of the Guidance, the SI Hub will undertake a comprehensive revision of the Guidance in due course. The SI Hub welcomes any comments on the Guidance including suggestions for improvement. These should be sent to the Hub ([email protected]).

CONTENTS

1 INTRODUCTION ...... 5 1.1 General ...... 5 1.2 What is a statutory instrument? ...... 6 1.3 When is making secondary legislation wrong? ...... 7 1.4 When putting material in an SI is optional ...... 8 1.5 When is making secondary legislation necessary? ...... 8 1.6 The team involved in the preparation of an SI ...... 9 1.7 Source material ...... 11

2 PROCESS AND PROCEDURE ...... 17 2.1 Project planning ...... 17 2.2 Timetabling implications - Parliamentary procedures ...... 17 2.3 Other matters affecting a project plan ...... 18 2.4 Types of SI procedure ...... 26 2.5 Instructions ...... 29 2.6 Before you draft - think! ...... 30 2.7 Drafting procedure ...... 31 2.8 Consultation ...... 34 2.9 Final checking/Proof reading ...... 36 2.10 Discovery of errors ...... 37 2.11 Publication and Printing; General ...... 39 2.12 Publication and Printing: SI Template ...... 39 2.13 Classification of SIs as general or local ...... 41 2.14 Laying ...... 42 2.15 Coming into force ...... 43 2.16 The Secondary Legislation Scrutiny Committee and the Explanatory Memorandum ...... 46 2.17 Prayer ...... 50 2.18 JCSI ...... 50 2.19 Other related documents ...... 54

3 FORMALITIES OF STATUTORY INSTRUMENTS ...... 56 3.1 Subject headings ...... 56 3.2 Title ...... 56 3.3 Dates: making, laying and coming into force ...... 57 3.4 Table of Contents ...... 58 3.5 Preamble ...... 58 3.6 Operative part ...... 59 3.7 Signature ...... 60 3.8 Schedules ...... 61 3.9 Explanatory Note ...... 61

4 DRAFTING ...... 66

4.1 Preamble…………………………………….……………………………. 66 4.2 Commencement and extent/application…..……………………………70 4.3 Interpretation…………………………………..…………………………..72 4.4 Operative provisions…………………………..………………………….75 4.5 Schedules………………………………………..………………………...85 4.6 JCSI points…………………………………………………………………85 4.7 Other drafting points (A to Z)……………..……………………………….88

ANNEX 1...... 106 The Interpretation Act 1978 – Provisions relevant to SIs...... 106

ANNEX 2...... 115 Specimen timetable for a negative resolution instrument ...... 115 Specimen timetable for an affirmative resolution instrument ...... 122 INDEX ...... 130

1 INTRODUCTION

1.1 General

1.1.1 This Guidance does not constitute in itself all that you may need to know. It is designed to complement other material available. In particular it supplements Statutory Instrument Practice (“SIP”), which is produced by the Legislation Services team at the National Archives. The current edition of SIP is the 5th edition, issued in November 2017. SIP contains detailed guidance on matters such as: the Parliamentary process and the different classes of SI, the required form and content of SIs, and the validation and submission of SIs for registration. Where appropriate this Guidance contains cross references to SIP, but drafters will want to be familiar with its contents.

SIP is accessible on the legislation.gov.uk Publishing site, and via this link1 and via the LION Secondary legislation site (https://lion.governmentlegal.gov.uk/the- law/legal-topics/secondary-legislation/Statutory%20Instrument%20Practice.aspx).

Note that this version of SIP is a living document and is to be reviewed and updated at least annually. The most up-to-date version is accessible online (and downloaded versions must therefore be treated with caution).

1.1.2 The LION Secondary legislation site has many useful papers e.g. on modern and gender neutral drafting guidance. This Guidance contains cross references to some of this content but, again, drafters will want to familiarise themselves with the information available on the site.

1.1.3 The LION European site has information relating to EU Exit, and an EU Exit “Whitehall lawyers' area” which contains papers and guidance relating to EU Exit secondary legislation.

1.1.4 The Office of Parliamentary Counsel website also hosts guidance material:

https://www.gov.uk/government/organisations/office-of-the-parliamentary-counsel.

1.1.5 This Guidance refers to better regulation policies where relevant but more comprehensive guidance can be found in the LION Better Regulation site:

https://lion.governmentlegal.gov.uk/the-law/legal-topics/better-regulation.aspx

1 For which it is necessary to enter one’s email address and password. 5

1.2 What is a statutory instrument?

1.2.1 Section 1 of the Statutory Instruments Act 1946 provides:

“1.―(1) Where by this Act or any Act passed after the commencement of this Act power to make, confirm or approve orders, rules, regulations or other subordinate legislation is conferred on His Majesty in Council or on any Minister of the Crown then, if the power is expressed -

(a) in the case of a power conferred on His Majesty, to be exercisable by Order in Council;

(b) in the case of a power conferred on a Minister of the Crown, to be exercisable by statutory instrument,

any document by which that power is exercised shall be known as a “statutory instrument” and the provisions of this Act shall apply thereto accordingly.

(1A) Where by any Act power to make, confirm or approve orders, rules, regulations or other subordinate legislation is conferred on the Welsh Ministers and the power is expressed to be exercisable by statutory instrument, any document by which that power is exercised shall be known as a “statutory instrument” and the provisions of this Act shall apply to it accordingly.

(2) Where by an Act passed before the commencement of this Act power to make statutory rules within the meaning of the Rules Publication Act 1893, was conferred on any rule-making authority within the meaning of that Act, any document by which that power is exercised after the commencement of this Act shall, save as is otherwise provided by regulations made under this Act, be known as a “statutory instrument” and the provisions of this Act shall apply thereto accordingly.”

1.2.2 Most of the orders, regulations and rules you may be asked to draft will be caught by this definition and will be statutory instruments. In such cases you will need to identify whether the instrument is subject to any parliamentary procedure and, if so, which type. However, note that not all the powers conferred by primary legislation are to make statutory instruments, for example:

a) there are numerous powers to make orders which are not statutory instruments and such orders are usually of a local nature. For example, section 10 of the Representation of the People Act 2000 provides for an order which is not expressed to be exercisable by statutory instrument, and in that case section 10(5) provides for the orders made to be published by the local authority in question (rather than by HMSO). Often however the enabling Act will be silent on how such orders are to be published, leaving it to the Department or whoever makes the order to take whatever steps it thinks appropriate to publicise the order; 6

b) the Financial Services and Markets Act 2000 gives the Financial Services Authority a number of powers to make rules (e.g. section 138). Such rules are not statutory instruments (compare section 428).

1.2.3 So leaving aside Orders in Council made under statutory powers, which are almost always statutory instruments, the question whether a piece of subordinate legislation is a statutory instrument is determined by what the enabling legislation says.

1.3 When is making secondary legislation wrong?

1.3.1 It is wrong to purport to make secondary legislation when there is no power to do so. If there is no power to make the instrument, it can be quashed or declared invalid by the courts and should certainly lead to an adverse report from the JCSI, which may lead it to being revoked in any event.

1.3.2 Secondary legislation that does not change the law should not be made (except for secondary legislation which is pure consolidation), because this is:

a) a misuse of power, b) a waste of time (including Parliamentary time), c) dangerous.

It is dangerous because the courts will be likely to assume that it did have some purpose and try to confer some meaning on it. Accordingly, purposeless legislation is likely to “go bad on you”. This point should be made clear to policy colleagues (and, if necessary, Ministers) if they are minded to make an instrument simply to suggest that they have “done something”. This is flawed policy because it will be easy for others to show that the legislation has done nothing and because, at the least, it is almost certain to attract criticism from the JCSI, which will be to the discredit of your Department. Also bear in mind that not every element of policy needs to be expressed in the instrument (see for example paragraph 1.4.1).

1.3.3 Avoid drafting provisions which are solely explanatory (leaving aside words in parenthesis describing legislative provisions referred to, as to which see SIP section 3.19) or intended to be helpful to an understanding of the underlying policy. The JCSI will criticise the inclusion of explanatory (as opposed to legislatively substantial) material2. Such matters may well be important, but their place is not in the statute book. Policy colleagues should be advised to give explanations or justify policy in the Explanatory Memorandum, in Departmental literature (e.g. scheme brochures) or by other means. The Explanatory Note is also a place to say what the SI does (but not to justify policy). For example an explanatory indication that a provision is included as a consequence of the coming into force of particular primary (or EU) legislation is a matter for the Explanatory Note, but not the main body of the instrument.

2 See, for example, 29th Report of 2007-08 in relation to SI 2008/1734, 21st Report of 2008-9 in relation to S.I. 2009/1388 (“not conforming to proper drafting practice”) and 1790 and 41st Report of 2010-12 in relation to S.I. 2011/2914. 7

1.4 When putting material in an SI is optional

1.4.1 Procedural matters may not need to be set out in the instrument – they may be capable of establishment by administrative means. For example, it may be sufficient to prescribe in relation to a particular grant scheme that an application must be made and must include certain information, without prescribing the use of a form. This will not prevent the Department publishing a form and encouraging its use for applications. However, if the procedure itself is intended to give rise to an obligation on the part of individuals or private bodies, the obligation should be specified.

1.5 When is making secondary legislation necessary?

1.5.1 There are a number of cases in which making secondary legislation is necessary. These include the following examples:

a) To give effect to primary legislation, for instance where it contains provision for commencement on the making of an order or requires an order to be made specifying what kind of activity is covered by the legislation (e.g. section 22 of the Financial Services and Markets Act 2000).

b) Where it is necessary to make a statutory instrument because the enabling legislation makes it clear that it is mandatory to do so. For example, your enabling Act may say “The Secretary of State shall make regulations…”. Here the use of the word “shall” (or “must” in recent statutes), rather than the more common “may”, indicates that this is a duty. Failure to make an instrument within a reasonable time would, in such a case, leave the Secretary of State open to challenge by way of judicial review (and to criticism in Parliament). However, before deciding that wording is mandatory, take care to read the relevant provisions as a whole, as what, at first, appears to be a mandatory provision may not in fact be so. Indeed the reverse may also be the case; what may appear to be a discretionary provision may in the context amount to a mandatory provision. A standard commencement order making power is a discretionary provision, but an announcement that a power will never be commenced is an unlawful fettering of discretion3.

c) To correct faults of substance in an earlier instrument (often following an adverse report from the JCSI, though the correct response in such a case will depend upon the facts of the case).

d) Where it is necessary to change the law to implement EU obligations. This may be achieved by the making of secondary or primary legislation. Where it is desired to use secondary legislation, existing enabling powers may exist and should be used. Where there is no existing power section 2(2) of the European Communities Act 1972 may be used as an enabling power (although there are limitations on its use). Drafters will want to refer to the information available on

3 See R v Secretary of State for the Home Department ex parte Fire Brigades Union [1995] 2 All ER 244, HL. 8

the European site on LION here: https://lion.governmentlegal.gov.uk/the- law/legal-topics/european.aspx, and in particular the guidance “Implementing European Law” edited in 2018 by DExEU Legal Advisers (as to which see paragraph 1.7.2) which explains more fully the obligation to implement EU obligations, the choice of legislative vehicle and specific issues relating to the use of section 2(2). Note in particular that the existence of existing enabling powers constrains use of section 2(2) as a matter of Parliamentary convention rather than law.

e) To give effect (where necessary) to other Treaty obligations of the UK. Again primary legislation may also be used.

1.6 The team involved in the preparation of an SI

The policy colleague

1.6.1 In addition to formulating the policy, the policy colleagues sponsoring an instrument are responsible for:

a) obtaining advice from the drafting lawyer about whether it is legally possible to carry through the intended policy by means of an instrument,

b) working out the detailed provisions required, in consultation with the drafting lawyer,

c) ensuring that there are adequate consultations with all other interests, both within and outside government,

d) commenting on drafts produced,

e) where needed, co-ordinating comments from a range of sources and ensuring that any differences about the policy are resolved, if necessary by ministers,

f) preparing any impact assessment and other documentation that must accompany the instrument and obtaining any necessary policy clearance such as from the Reducing Regulation sub-Committee of the Economic Affairs Committee of the Cabinet,

g) obtaining clearance from the Ministry of Justice for new criminal offences and from the Home Office for new powers of entry,

h) preparing the submission that accompanies a draft when sent for signature, and

i) in most Departments, preparing the Explanatory Memorandum.

It is not the function of the policy colleague to dictate how the drafts should be worded: this is a technical matter for the lawyer concerned. The policy colleague’s concern is to ensure that the draft as produced has the effects that are desired. The 9

wording needed to produce those effects is for the lawyer. However, you may find cases in which it is possible to meet concerns expressed by policy colleagues about particular wording and may well find it appropriate to do so if handling concerns would otherwise arise. You should not, however, do so, if the result is to sacrifice necessary accuracy.

The drafting lawyer

1.6.2 From this it will be clear that the functions of the drafting lawyer include the following:

a) to advise on whether making a statutory instrument is possible and whether it is necessary,

b) to advise on the extent of the provisions that may be included. In this context both general vires (powers) issues may be relevant and also those arising from devolution,

c) to remind others involved that the instrument should comply with European law, human rights and other general public law requirements (and, where there are areas of doubt, to assist in observing machinery of government conventions in resolving the doubt) as well as applicable better regulation requirements,

d) to assist policy colleagues to refine policy until it can be “captured” in a draft instrument and to provide advice if needed in connection with obtaining Cabinet Committee clearance,

e) to draft provisions that encapsulate the policy in a legally effective manner and comply with applicable better regulation requirements such as the inclusion of sunset or review clauses,

f) to warn clients about any risk of reporting by the JCSI or the Secondary Legislation Scrutiny Committee,

g) to secure the approval of Parliamentary Counsel for any amendments of primary legislation,

h) to advise on procedural issues applicable to the instrument, including the requirements for making and laying and any requirements for debates on the instrument,

i) to refine the draft in the light of any further comments,

j) to produce a final draft of the instrument in correct form, ready to be made or laid (this will normally require use of the SI template),

k) to draft or clear the Transposition Note and any Correlation Table where this is required, 10

l) in most Departments, to clear the Explanatory Memorandum,

m) to consult and provide a link to the JCSI and its staff as appropriate,

n) in the case of an affirmative instrument, to consult the Deputy Counsel to the Chairman of Committees about the draft before the instrument is laid, and

o) to take the lead in drafting any memoranda required by the JCSI.

1.6.3 In addition to their role in approving amendments to primary legislation, Parliamentary Counsel occasionally agree to take on other kinds of SI work, such as drafting instruments (or particular provisions) on instructions or commenting on instruments that would not otherwise require their approval. When they do this the functions of the drafting lawyer in the Department need to be adapted as necessary to reflect their role. In particular, the functions of the “drafting lawyer” set out in paragraph 1.6.2(e), (g) and (i) do not apply. Instead, that lawyer has the function of instructing counsel and considering and responding to counsel’s drafts and comments (in consultation with policy colleagues). However, responsibility for producing the final version of the instrument in correct form (paragraph 1.6.2(j) will normally remain with that lawyer.

The checking lawyers

1.6.4 It is normal practice for the final draft of any statutory instrument to be checked by someone other than the drafter. In many cases these checks will be carried out by at least one experienced lawyer and often by two (often called “the 2nd lawyer check” and “the 3rd lawyer check” or “second/third pair of eyes”). The checking lawyers, depending upon the internal arrangements in your Department, are also likely to be a useful source of advice and assistance in tricky cases.

1.6.5 Checking lawyers (and those drafting) should consider the “Model Guidance on checking Statutory Instruments” which was prepared by the SI Hub in consultation with all advisory teams. This draws together best practice on checking draft SIs, and contains a useful checklist. The guidance is available on the Secondary legislation site on LION here:

https://lion.governmentlegal.gov.uk/the-law/legal-topics/secondary- legislation/useful-papers.aspx.

1.7 Source material

1.7.1 As noted above, you need to familiarise yourself with SIP.

1.7.2 For EU law implementation, you also need to familiarise yourself with the guidance on EU law on the European site on LION:

https://lion.governmentlegal.gov.uk/the-law/legal-topics/european.aspx 11

and in particular the guidance on Implementing European law, edited by the Department for Exiting the EU (DExEU) Legal Advisers in 2018, and the “Transposition Guide: how to implement European directives effectively” (April 2013) both of which are available on LION here:

https://lion.governmentlegal.gov.uk/the-law/legal- topics/european/Guidance%20on%20EU%20Law/Implementing%20European%20 Law.aspx.

1.7.3 You need to have the following to hand:

a) the enabling Act(s) for the instrument (check that it is up to date and in force),

b) any relevant previous instruments,

c) any relevant EU legislation which is being implemented or in force, available on EUR-lex at:

http://eur-lex.europa.eu/en/index.htm

d) the Interpretation Act 1978, as amended.

Beware of relying on anything other than Queen’s Printer’s copies or an officially authorised database for Acts and instruments. By all means use commercially available consolidated texts, but not as a substitute for an official text. The standard of commercial publications, and of other information services, is variable. Similar caution should be shown in relation to the unofficial consolidations of EU instruments prepared by the Commission.

1.7.4 For drafting SIs to implement the UK’s withdrawal from the EU, you will need to familiarise yourself with the following:

a) the SI Hub’s guidance on drafting EU Exit SIs,

b) the SI Hub’s guide to dealing with cross-references to EU instruments in UK legislation,

c) the SI Hub’s guide to drafting textual amendments in EU Exit SIs,

d) the European Union (Withdrawal) Act.

The SI Hub guidance is available, together with other useful information on this topic, on the “EU Exit – Whitehall Lawyers Area” pages on LION here:

https://lion.governmentlegal.gov.uk/the-law/legal-topics/european/EU%20EXIT%20- %20Whitehall%20Lawyers%20Area/Domestic%20Implementation/Repeal%20Bill.as px. 12

Note that the SI Hub guidance will be updated regularly, so please ensure that you are referring to the most up to date version (which will be available on LION).

Better regulation requirements

1.7.5 You will need to take account of the better regulation requirements. The “Better Regulation Framework: Interim Guidance” published by the Department for Business, Energy and Industrial Strategy4 sets out how the better regulation system should operate. The Interim Guidance applies to all regulatory measures and regulatory impact assessments. A “regulatory measure” is generally one which relates to the regulation of business activity (for a full definition see section 22 of the Small Business, Enterprise and Employment Act 2015). For the purposes of the 2015 Act, “business activities” include activities of voluntary and community bodies (see section 27 of the Act). Note that following the announcement of a Business Impact Target (as required by section 21 of the Small Business, Enterprise and Employment Act 2015) for this Parliament on 9 June, new guidance will be published to replace the Interim Guidance and will be available on LION. Please ensure you are referring to the most up to date guidance.

1.7.6. Having decided that regulation is necessary, you need to be aware of the following:

a) you will need to consider the guidance mentioned at 1.7.2 above if you are implementing EU obligations; it deals fully with better regulation requirements including such things as the use of copy-out as a drafting technique, the avoidance of gold-plating and the need for review clauses5.

b) a full RIA is required where a policy will increase or reduce the Equivalent Annual Net Direct Cost to Business (EANCB) by more than £5 million. The EANCB is the annualised net direct costs to business of a policy. For measures with an EANCB below the threshold, Departments should carry out a proportionate cost benefit analysis to inform decision making (see section 1.2 of the Interim Guidance). It is for policy colleagues to prepare an impact assessment detailing the costs, benefits and impacts of any proposal, but for lawyers to advise on legal risks.

c) A small and micro-business assessment (SaMBA) is required for domestic regulatory measures which have an impact on business of greater than +/- £5 million. Where the impact on business is below that threshold, the impact on small and micro-businesses should be considered and a SaMBA carried out if appropriate.

4 https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/708066/b etter-regulation-framework-interim-guidance-2018.pdf 5 See also: https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/682752/e u-transposition-guidance.pdf 13

d) Independent scrutiny by the Regulatory Policy Committee (RPC) is required for all polices with an EANCB above £5 million (below this threshold this scrutiny is optional). However, all policy proposals which have a bearing on business must be cleared by the Reducing Regulation sub-Committee (RRC) in addition to any other relevant Cabinet Committee.

e) Whether or not consultation is a legal requirement, policy colleagues will need to decide whether to consult and if so how to conduct any consultation. The government has published a revised set of consultation principles giving clear guidance to departments on conducting consultations6. Further information on consultation can be found in the Administrative Law Site on LION.

f) A Justice Impact Test ‘JIT’ must be completed for all new policy proposals that could potentially have an impact on any aspect of the criminal and civil justice system7. If your policy colleagues are considering creating a new criminal offence or significantly amending an existing one, they should refer to MoJ’s guidance for advice: www.gov.uk/government/publications/making-new-criminal-offences.

g) If the policy proposal involves the creation of a new power of entry, policy colleagues will need to obtain clearance from the Home Office: see http://www.homeoffice.gov.uk/publications/about-us/legislation/powers- entry/powers-entry-guidance.

h) you will need to consider whether any other impact assessments – such as an equality, environmental impact or rural issues assessment – are required.

i) you will need to consider whether a review clause is required or whether a sunset clause is appropriate. For reviews, see the “Statutory Review Guidance for Departments”8 which addresses the requirements in sections 28 to 32 of the Small Business, Enterprise and Employment Act 2015. A review clause template and further guidance on the use of review and sunset clauses are available on the Better Regulation Site on LION.

j) It is Government policy that legislation affecting business should generally come into force on one of the common commencement dates. The common commencement dates are 6th April and 1st October.

Other sources of guidance and advice 1.7.7 You may also need to refer to:

6 https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/691383/ Consultation_Principles__1_.pdf 7 https://www.gov.uk/government/publications/justice-impact-test 8 https://www.gov.uk/government/publications/small-business-enterprise-and-employment-act-statutory- review-requirements 14

a) reports of the Joint Committee on Statutory Instruments (JCSI), available on the UK Parliament website here:

http://www.parliament.uk/business/committees/committees-a- z/joint- select/statutory-instruments,

or the synopses of reports of general interest on the secondary legislation practice site on LION; the JCSI’s annual special reports on Departmental returns which may be useful in identifying whether the JCSI has previously raised a point in relation to an instrument which is now being amended or consolidated and which is still outstanding; it can be very embarrassing inadvertently to repeat a formulation in the earlier instrument that was subject to adverse criticism; a repetition should certainly attract criticism from them unless it is backed by convincing justification,

b) similarly, reports of the House of Commons Select Committee on Statutory Instruments (SCSI), found the UK Parliament website here:

http://www.parliament.uk/business/committees/committees-a- z/commons- select/statutory-instruments-committee,

c) any Departmental records of comments made by Speaker’s Counsel on relevant previous instruments,

d) any Departmental guidance you may have,

e) “Devolution and SI Drafting Guidance” (May 2008), and other information relating to devolution, available on the Devolution site on LION here:

https://lion.governmentlegal.gov.uk/the-law/legal-topics/devolution/guidance- and-materials.aspx.

f) drafting guidance produced by the Office of Parliamentary Counsel in December 2017 (e.g. in relation to gender neutral drafting), available on the Secondary legislation site:

https://lion.governmentlegal.gov.uk/the-law/legal-topics/secondary-legislation/s- i-drafting-guidance.aspx

g) the Statutory Instruments Act 1946 and Statutory Instruments Regulations 1947,

h) Erskine May on Parliamentary Practice (24th edition, 2011).

1.7.8 Other useful sources are:

a) Bennion on Statutory Interpretation (7th edition),

b) Craies on Legislation (11th edition),

c) G. C. Thornton on Legislative Drafting (4th edition).

1.7.9 The SI Hub produces a monthly newsletter, “SI News”, which contains guidance, articles, and useful information relating to SI drafting. Past issues, together with an index identifying topics covered, are available on the Secondary legislation site on LION here: https://lion.governmentlegal.gov.uk/the-law/legal-topics/secondary- legislation/SI%20News.aspx.

In addition, you may contact members of the SI Hub for drafting advice and assistance.

1.7.10 Advice may also be obtained from:

a) the SI Registrar at the National Archives who will advise in particular on title, subject heading and classification

contact [email protected], sending a complete draft of any instrument in question, and

b) one of the legal advisers to the JCSI/SCSI in borderline cases where consulting relevant colleagues does not resolve an uncertainty.

2 PROCESS AND PROCEDURE

2.1 Project planning

2.1.1 Unless the instrument is very simple indeed the first stage will be to agree some form of project plan with policy colleagues, including a timetable. Many Departments now have standard form timetables and checklists for completion: examples are given in Annex 2. The Parliamentary procedure will have a significant bearing on the timetable, and the timetabling implications of the various Parliamentary procedures is considered in section 2.2. Other matters which will affect the project plan for the instrument are considered in sections 2.3 to 2.4.

2.1.2 The practice of project management – or programme management for a group of related instruments, e.g. to bring an Act into force – should contribute greatly towards the delivery of a quality instrument to timescales within resources, which meets the policy. A good many instruments get behind timescale due to failure to plan them and make resources available, e.g. to draft instructions at the right time. Some are delayed at the end stage over scope issues, such as whether to include devolved

administrations, or clearance processes. Pressure on resources means that delivery to timescale of good quality instruments is all the more important.

2.1.3 Project and programme management (‘PPM’) need not involve needless form filling. Basic techniques such as a project initiation document (PID) or project plan, issue log and risk register, as well as a timeline with milestones and dependencies, are some basic techniques that deliver great benefits for a small amount of front loaded work.

2.2 Timetabling implications – Parliamentary procedures

Negative resolution instruments

2.2.1 The 21 day rule (considered in paragraph 2.15.1) is clearly crucial but of course this is the minimum time which, as a matter of convention, must generally elapse between laying and coming into force. There will be numerous occasions on which it will be almost essential to allow a longer period between laying and coming into force to allow for the public to have a chance to study the SI before it comes into force.

2.2.2 An allowance also has to be made in any timetable for registration, printing, copying and collating the Explanatory Memorandum all of which takes place between making and laying before Parliament. At peak times, e.g. relating to a Common Commencement Date, those responsible for handling these administrative tasks may need significantly more time than usual to cope with the volume of instruments in a Department.

Affirmative resolution instruments

2.2.3 Standing Order 72 in the Lords precludes an affirmative instrument, or draft of one, from being considered in the Lords until the JCSI has reported on it. Although there are no similar Standing Orders in the Commons the Minister is likely to attract criticism in the debate in the Commons if the debate is arranged before the JCSI has reported on the instrument. Consequently, time for the JCSI to consider any instrument should be built in to the timetable.

2.2.4 It is also common practice to show drafts of instruments to the Deputy Counsel to the Chairman of Committees for comment before the draft is laid (except instruments which are subject to affirmative resolution in the Commons only which are shown to Counsel (Legislation) and/or either or both of the Deputy Counsel). This reduces the risk of the JCSI reporting on points once the draft has been laid with a possible need to withdraw the draft and re-lay an amended one. However the clerk to the JCSI has made the point that the JCSI has an interest in the wider aspects of its terms of reference which go beyond drafting and Departments should not assume that the JCSI will never want to request further information on a draft following its initial consideration by Counsel to the Chairman of Committees. While Parliament is sitting, two weeks should be allowed for Deputy Counsel to the Chairman of Committees to consider a draft (unless some other period has previously been agreed). More information on the current arrangements is set out in a letter dated 17

22nd July 2010 from the clerk to the JSCI which can be found in the useful documents section of the Secondary Legislation legal topic on LION. If consideration of a draft is expected to be needed at other times, it would be worthwhile to consult in advance about availability. The same applies in relation to the House of Commons advisers for Commons only instrument.

2.3 Other matters affecting a project plan

Enabling powers

2.3.1 Always check the extent of the enabling powers. Are they (or will they be) in force by the time the instrument has to be made? Remember that where an Act is silent about commencement it comes into force on Royal Assent9. Otherwise, you need to check the commencement provisions. Do this even if you are familiar with the territory. A Commencement Order might have left something out inadvertently which you would have assumed was included. In some cases commencement of an enabling power can be anticipated. For anticipatory exercise of powers see paragraphs 13 to 19 of Annex 1. You should also check whether the power has been devolved or repealed. Prospective repeal may be referred to in a footnote.

2.3.2 If the enabling power is one which is being enlarged or otherwise amended by an instrument, you cannot rely on the powers as enlarged until the instrument enlarging the powers is in force. This usually means two instruments are needed, one to enlarge the powers, the other to use them.

Conditions precedent

2.3.3 Check to see whether there are any conditions precedent to the exercise of the powers. Unless you know that all such conditions have been fulfilled, check with policy colleagues. Watch out in particular for the following:

a) specific consultation requirements, either in the enabling sections or elsewhere in the enabling Act (beware the latter which can be overlooked),

b) consultation requirements in other Acts, e.g. consultation with the Administrative Justice and Tribunals Council under the Tribunals, Courts and Enforcement Act 2007. There may also be a consultation requirement in an EU measure compliance with which requires to be cited; the most well known is that in Article 9 of Regulation (EC) No 178/2002 of the European Parliament and of the Council laying down the general principles and requirements of food law, establishing the European Food Safety Authority and laying down procedures in matters of food safety,

c) requirements for periods of time to have elapsed before the instrument can be made (e.g. since the publication of a notice, or the receipt of a report),

9 Interpretation Act 1978, section 4(b). 18

d) where the instrument is being made under section 2(2) of the European Communities Act 1972, the requirement for an appropriate designation order. Further information relating to designation orders is available on LION here:

https://lion.governmentlegal.gov.uk/the-law/legal-topics/european/designation- orders.aspx.

Other similar points

2.3.4 The following may also be relevant:

a) the need to comply with the Technical Standards Directive 98/34/EC, as amended (in short any technical requirements attaching to goods or “information society services” must be notified to the European Commission otherwise they are not enforceable, and the Directive imposes standstill periods of at least 3 months in relation to certain domestic legislation). Further information and guidance is available on the European topic site on LION here:

https://lion.governmentlegal.gov.uk/the-law/legal- topics/european/Guidance%20on%20EU%20Law/Technical%20Standards.aspx.

b) any other EU legislation in a particular field that may additionally call for notification and/or a standstill period before the instrument can be made. For example, Articles 19 and 20 of Directive 2000/13/EC of the European Parliament and of the Council on the approximation of the laws of the Member States relating to the labelling, presentation and advertising of foodstuffs,

c) the need, in some cases, to seek State Aid clearance from the European Commission, see further the guidance on the European site on LION here:

https://lion.governmentlegal.gov.uk/the-law/legal- topics/european/Guidance%20on%20EU%20Law/State%20Aid.aspx

d) the need in some cases to co-ordinate with devolved administrations; in particular if the instrument needs the consent of devolved administrations before being made, allowance has to be made for the devolved administration’s own timetable for giving consent which can be lengthy, so early contact with the relevant devolved administration needs to be made.

Common commencement dates

2.3.5 See the guidance dated August 2010 as to whether the instrument will be expected by the Government to come into force on one of the two common commencement dates (6 April and 1 October) at: http://www.bis.gov.uk/assets/biscore/enterprise/docs/c/10-1137- common- commencement-dates-august2010.pdf

2.3.6 Note also the points in paragraph 12 of the guidance that you should “avoid laying just before the 21 day minimum period before commencement”, “avoid laying negative instruments in the summer recess, as that can limit Members’ opportunities to comment” and “wherever possible, lay negative instruments, as well as affirmatives, well in advance of commencement”. Note also the guidance on the application of CCDs to implementation of EU measures at paragraph 15:

“In some instances it may be appropriate to transpose Directives before the latest possible date. Although some could see this as gold-plating, the CCD employment pilot back in 2004 showed that business will, in some cases, prefer commencement on a CCD, rather than being left to the final deadline. You should consult business for views as to whether implementation should occur on a CCD or to be left to the transposition deadline when consulting stakeholders on the options for implementation. The coalition Government is currently reviewing the issue of gold- plating.”

Better regulation clearances

2.3.7 Time must be allowed for the processes required by better regulation policies including obtaining the view of the Regulatory Policy Committee and clearances from the Ministry of Justice, the Home Office and the Reducing Regulation sub- Committee as appropriate.

Parliamentary Counsel’s mandatory “vetting” role: instruments amending primary legislation

2.3.8 If an instrument amends primary legislation, machinery of government rules require the amendments (together with any other provisions directly relating to them) to be approved in draft by Parliamentary Counsel. Their role in commenting on and clearing amendments is often referred to as “vetting” the instrument. In this context “amendment” includes repeals. Of course amending primary legislation is possible only if the enabling power permits this.

2.3.9 It does not matter what sort of subordinate legislation is making the amendments10, nor does it matter how many amendments are made or how small or unimportant they may be – even a single amendment altering one number needs to be cleared.

2.3.10 Clearance is required both for textual amendments (i.e. amendments which alter the wording of an Act) and most non-textual amendments of primary legislation (i.e.

10 In the unlikely event that something that will not be a statutory instrument amends primary legislation, it should also be sent for clearance. 20

amendments which modify the effect of a provision of an Act, in some or all cases, without actually altering the words). Examples of non-textual modifications include:

a) a provision that says section X ceases to have effect in a particular case;

b) a provision that applies section X to a new case; and

c) a provision that provides for section X to apply differently in all cases or in particular cases, (e.g. “as if the reference to Y were a reference to Z”).

2.3.11 Whether a non-textual modification requires clearance depends on the significance and extent of the effect of the change on the statute book, and not on its form. Clearance is required where a modification makes a permanent change to the effect of a provision in all cases or any significant case to which it applies. However, a modification would not normally need to be cleared if it is confined to a special case and that case falls within a relatively small class of the cases to which the provision being modified applies. So, for example, a provision modifying a provision about ports in its application to a named port, or a provision temporarily modifying a new procedural provision in relation to existing proceedings, would not usually need to be cleared.

2.3.12 Clearance is also needed for general amendments or modifications to the statute book that do not identify the specific provisions being altered. So for example a provision that said that in any enactment a reference to a solicitor is to have effect as including a reference to a barrister would need to be cleared.

2.3.13 Clearance may not be needed if an instrument is simply making secondary legislation by “applying” provisions of an Act for its own purposes. The provisions “applied” will often be quite specific, such as a definition of a term. Sometimes they will be more extensive and require numerous detailed modifications to make the text work for the purposes of the instrument. An example of that might be an instrument making rules for a particular kind of election by “applying”, with modifications, provisions of an Act containing the rules for general elections. The common feature in these cases is that the instrument is in effect “borrowing” the text from the Act to save repetition, rather than extending or modifying the effect of the primary legislation11.

2.3.14 It may be unclear to the drafting lawyer whether an instrument is making non-textual modifications of the kind for which clearance is required. Parliamentary Counsel will on request advise whether clearance is needed. If you think that an instrument makes non-textual modifications that do not require clearance it will normally be advisable to check with Parliamentary Counsel. In the first instance requests for advice should be made to the First Parliamentary Counsel (or to the leader of the team in the Office of Parliamentary Counsel responsible for the department concerned).

11 It is often a difficult a question of judgement for the drafter whether it is sensible to “apply” existing provisions rather than to make freestanding provision. 21

2.3.15 An instrument requiring clearance needs to have been vetted by Parliamentary Counsel before being made or laid in draft before Parliament. When an instrument is to be formally published in draft by a department for consultation it is a question of judgment whether it should be cleared before publication. Where a consultation document is issued following collective ministerial agreement, or in other cases where there is likely to be pressure to make an instrument swiftly after a consultation concludes, it would be appropriate to ask Parliamentary Counsel to vet the draft text. This should avoid the risk of embarrassment if the vetting process reveals that the published text is defective. On the other hand where the publication forms part of a process of consultation which is likely to lead to changes in policy or drafting, it may make more sense to complete the consultation process before sending the draft to Parliamentary Counsel.

2.3.16 Draft instruments requiring clearance should be sent by the drafting lawyer to the First Parliamentary Counsel (or to the leader of the team in the Office of the Parliamentary Counsel responsible for the department concerned), who will arrange for the draft to be allocated to one of the counsel.

2.3.17 The usual practice is to send a draft instrument once the drafting process (including any second lawyer checks) has been completed. But it may sometimes be sensible to send a draft instrument at an earlier stage, especially if the timetable for clearance is likely to be tight. If you do this, make sure the covering letter explains the position clearly and states whether any of the relevant provisions have not been finalised. If you are in any doubt as to when a draft instrument should be sent for clearance, it is advisable to consult Parliamentary Counsel.

2.3.18 There are no hard and fast rules as to what materials should accompany a draft, given the huge variety of instruments that require clearance. If in doubt you should consult Parliamentary Counsel as to what they require. A draft instrument on its own will rarely be sufficient (unless it is short and wholly self-explanatory) as counsel will almost inevitably end up asking questions that could have been avoided. The draft should normally be accompanied at least by a brief explanation of the policy behind the draft amendments and, where appropriate, of the draft amendments themselves. If the draft is of any complexity a fuller explanation of the draft may be needed, together with any other background information or documents that may help Parliamentary Counsel understand the draft and its desired effects. If you want Parliamentary Counsel’s views or advice on any point make sure you make it clear in your covering letter or email what the point is.

2.3.19 It is also sensible to explain, and if necessary justify, any provision for which the vires might be thought to be doubtful: an instrument amending primary legislation is only effective if it is intra vires, and the drafting may need to take account of any potential difficulties with the available powers.

2.3.20 Parliamentary Counsel will normally limit their active consideration to the amendments of primary legislation that require their clearance and any other provisions that directly affect the meaning of the amendments (such as provisions about the extent or application of the amendments). They will make such detailed comments and suggestions on the wording of the provisions being vetted as they 22

consider necessary or helpful. They will not usually have the information, or the time, needed to do more than that. Counsel may focus more on whether the amendments work technically than on possible refinements to the drafting. And they may leave questions of mere style to the drafting lawyer even if the counsel concerned might have adopted a different style.

2.3.21 Parliamentary Counsel may ask for further information about the policy or legal background before commenting on or approving a draft instrument. They will also normally expect a considered response from the drafting lawyer to any substantive comments or drafting suggestions before finally clearing the draft instrument Counsel may also comment on aspects of a draft instrument being vetted other than the drafting of the amendments and related provisions, such as the preamble, the applicable parliamentary procedure or the scope of the enabling powers. If it turns out that there are serious vires problems these will generally need to be resolved by the department before the instrument can be cleared. In many cases a considered response by the department to any issues raised by Parliamentary Counsel is all that will be required, but sometimes these issues can be harder to resolve.

2.3.22 Normally comments and drafting suggestions will be made by Parliamentary Counsel on the basis that any alterations to the text in response are to be decided upon and made by the drafting lawyer. In some cases Parliamentary Counsel may suggest that they redraft the instrument (or part of it) themselves, rather than by making comments and suggestions in the usual way. This can sometimes be the most efficient way of proceeding in cases where the drafting is complicated or the policy is particularly difficult. The decision whether to agree to the suggestion is for the department. Any significant drafting work may need the agreement of First Parliamentary Counsel (see also paragraph 2.3.16) - the counsel involved should normally be able to liaise with the First Parliamentary Counsel about this point when it arises.

2.3.23 Unless otherwise agreed (see sections 2.3.29 to 2.3.34), departments should assume that Parliamentary Counsel have not considered any provisions other than those requiring their clearance. If time permits, Parliamentary Counsel may sometimes make comments on provisions that do not require their clearance, where points have occurred to them in reading the instrument. This is done to help the department, but comments of this kind are unlikely to be comprehensive and should not be taken as suggesting that they have fully vetted provisions that do not require their clearance.

2.3.24 If for any reason the text of the relevant provisions is altered by the drafting lawyer after the draft has been sent to Parliamentary Counsel the amended text should be sent to the counsel concerned (whether or not the instrument has been approved).

2.3.25 It is essential to allow enough time for the vetting process to take place, including time for the department to consider and if necessary act on any comments and drafting suggestions. It can often take some time, and more than one round of correspondence, before a draft instrument can be finally approved by Parliamentary Counsel. They must give priority to Bill work, and even a straightforward instrument will take longer if it arrives at a time of year when counsel are busy (such as the final weeks before the opening of Parliament or the Budget) or during holiday periods.

2.3.26 As a rule of thumb 12 weeks should be allowed for clearance, although it is understood that in some cases this will not be possible and a shorter timetable may be necessary. Of course for some instruments 12 weeks will not be long enough. Parliamentary Counsel are aware that departments often have to work to tight timetables at short notice and so will try to accommodate reasonable requests to agree a shorter timetable for clearing instruments. You should consult the First Parliamentary Counsel (or the leader of the team in the Office of the Parliamentary Counsel responsible for the department concerned) as early as possible in the project to agree a timetable if the department is likely to want the clearance to be done quickly. You should also warn the First Parliamentary Counsel (or the relevant team leader) at an early stage if the provisions to be vetted will be lengthy or particularly difficult. If you are in any doubt about the timetable likely to be needed for the vetting process you should consult the First Parliamentary Counsel (or the relevant team leader).

2.3.27 Any timetable agreed with Parliamentary Counsel must allow for the essential elements of the vetting process, which may reveal unexpected problems that cannot always be resolved quickly. This can mean that a short deadline for clearance has to be extended before an instrument can be approved. While they will always do their best to meet an agreed timetable, this will always depend to some extent on what they discover when vetting the draft.

2.3.28 The approval of a draft instrument by Parliamentary Counsel does not mean that the department should assume that the draft is perfect and that all possible points have been spotted. It is important to remember that responsibility for the draft instrument (and in particular whether it effectively delivers the policy) remains with the department, unless Parliamentary Counsel have formally taken over the drafting.

Other SI work carried out by Parliamentary Counsel

2.3.29 There are categories of instrument which are by tradition or by specific agreement drafted or vetted by Parliamentary Counsel whether or not they would otherwise require clearance. For example Transfer of Functions Orders under the Ministers of the Crown Act 1975 are drafted by Parliamentary Counsel and Legislative Reform Orders will usually be drafted or vetted by them. It is sensible to consult Parliamentary Counsel if you are in any doubt as to whether your instrument falls into one of these categories.

2.3.30 First Parliamentary Counsel will consider requests from departments for Parliamentary Counsel to carry out work in relation to a proposed instrument other than the vetting of an instrument amending primary legislation. This may involve requests for Parliamentary Counsel:

a) to draft amendments to primary legislation to be made by an instrument;

b) to draft an instrument or particular provisions of an instrument);

c) to vet an instrument or particular provisions an instrument where the instrument or provisions concerned does not fall within their mandatory vetting jurisdiction; 24

d) to advise on any aspect of a proposed instrument or the scope of any powers to make subordinate legislation.

2.3.31 The volume of work of this kind undertaken by Parliamentary Counsel has increased in recent years, partly as a reflection of the wider powers generally available to do things by subordinate legislation that would traditionally have been done by a Bill. It is always possible to consult First Parliamentary Counsel (or the leader of the team within the Office of the Parliamentary Counsel responsible for your department) as to whether it is sensible for the department to make a request.

2.3.32 In considering a request, the First Parliamentary Counsel will take account of the drafting resources available at the time for this work and the time it is likely to take, as Bill work in particular will take priority. The First Parliamentary Counsel will also consider the nature and legal importance of the work and the reasons given by the departments for involving Parliamentary Counsel.

2.3.33 Where an instrument is directly related to the implementation of an Act of Parliament it is always worth considering whether to ask for advice or assistance from Parliamentary Counsel. For example, you may wish to ask them to draft consequential amendments, to vet or draft complicated commencement or transitional provisions or to comment on any proposals for such provisions. Work on such an instrument is likely to be regarded by First Parliamentary Counsel as being suitable for the involvement of Parliamentary Counsel.

2.3.34 Where Parliamentary Counsel undertake additional SI work it will be necessary to consider carefully what instructions or other materials to provide. If you are in any doubt as to what is necessary or useful, you should ask First Parliamentary Counsel (or the leader of the team in the Office of Parliamentary Counsel responsible for the department concerned) or the counsel allocated to the work for advice. As a general rule, where Parliamentary Counsel are to draft provisions of an instrument it will usually be desirable for the “drafting” lawyer in the department to prepare instructions as if the relevant provisions were to be part of a Bill. Where Parliamentary Counsel are to vet provisions of a draft instrument by agreement, the guidance in section 2.3.15 will apply.

Vetting of draft instruments by Scottish Parliamentary Counsel (UK)

2.3.35 Where an instrument amends or modifies provisions of an Act of Parliament which extend only to Scotland the amendments need to be cleared with Scottish Parliamentary Counsel (UK) (the Scottish parliamentary counsel who act for the UK Government). Parliamentary Counsel in London do not need to clear the amendments as well.

2.3.36 Amendments to provisions of an Act which extend both to Scotland and any other part of the United Kingdom may need to be cleared by Scottish Parliamentary Counsel (UK) as well as Parliamentary Counsel if the amendments or the provisions being amended apply differently in or in relation to Scotland (for example by making

a specific reference to Scottish courts or legal concepts or by having a distinct “Scottish” effect).

2.3.37 Draft instruments requiring clearance, requests for advice or assistance on drafting matters relating to Scottish law, should be sent by the drafting lawyer to the senior counsel at the Office of the Scottish Parliamentary Counsel (UK section).

2.4 Types of SI procedure

2.4.1 Most, but not all, statutory instruments are subject to control by Parliament. Check the powers under which the instrument is made for any procedure prescribed for the Parliamentary control of the instrument (this may be set out in a separate section from the main enabling powers).

2.4.2 The types of Parliamentary control are:

a) super-affirmative procedure, e.g. section 18 of the Legislative and Regulatory Reform Act 2006 or section 11 of the Public Bodies Act 2011,

b) affirmative resolution procedure,

c) negative resolution procedure,

d) other procedures.

Affirmative resolution procedures

2.4.3 The types of affirmative resolution procedure are:

a) the instrument is laid in draft and cannot be made unless the draft is approved by Parliament (or the House of Commons); this is much the most common form of affirmative resolution procedure and is the one which is almost invariably now adopted in legislation which provides for affirmative resolution;

b) the instrument is laid after making but cannot come into force unless approved by Parliament (or the House of Commons);

c) the instrument is laid after making but cannot remain in force after a specified period (usually 28 days, sometimes a month or 40 days, from the date on which it was made) unless approved by Parliament (or the House of Commons).

Negative resolution procedures

2.4.4 The types of negative resolution procedure are:

a) the instrument is laid after making and is subject to annulment if a resolution for annulment is passed by either House of Parliament within 40 days. The 40-day period does not include any period during which Parliament is dissolved or 26

prorogued or during which both Houses are adjourned for more than 4 days12. This is much the most common type of negative resolution procedure, and again is almost invariably now adopted in legislation which provides for negative resolution;

b) the instrument is laid in draft and cannot be made if either House of Parliament resolves within 40 days that the instrument be not made.

Other procedures

2.4.5 Other procedures are:

a) no Parliamentary procedure at all: commencement orders typically are subject to no Parliamentary procedure, but care must be taken where commencement provisions are combined with others, e.g. transitional provisions, which may require Parliamentary procedure;

b) instrument to be laid before Parliament after it is made but not required to be subject to any further Parliamentary procedure.

Combining procedures?

2.4.6 Unless the enabling Act specifically provides for it you cannot combine in one instrument -

a) provisions subject to different Parliamentary procedures, and

b) provisions subject to a Parliamentary procedure with provisions not subject to a Parliamentary procedure.

Sometimes, however, the enabling Act allows you to do this provided that the more stringent procedure is followed - see for example the European Communities Act 1972, Schedule 2, paragraphs 2A and 2B.

Combining types of SI

2.4.7 It was not generally possible to combine one type of instrument with another, for example orders and regulations. That has now changed with section 105 of the Deregulation Act 2015. Section 105 enables any provision that can be made by order, regulations or rules to be made by any other of those forms of legislation.

12 See section 7 of the Statutory Instruments Act 1946. Parliament is dissolved before a general election. Parliament is prorogued between sessions of Parliament - a session of Parliament starts with the Queen’s speech and usually lasts about twelve months. In 2010 the Coalition Government decided that in future sessions of Parliament would begin and end in May. Each House of Parliament has power to adjourn its sittings. Typically both Houses are adjourned over Christmas, Easter etc and during the summer recess. The expression “during which both Houses are adjourned for more than 4 days” is potentially ambiguous but makes better sense as meaning the whole of such an adjournment period rather than all of the period minus the first 4 days of it. Where the instrument is House of Commons only, the adjournment of the House of Commons alone applies (section 7(2)). 27

(Section 105 makes it clear that this freedom applies only when the instrument concerned is a statutory instrument.)

“Composite” SIs

2.4.8 The power to make secondary legislation in relation to devolved matters generally lies with the relevant devolved authority. Ordinarily, this means that the relevant Whitehall department will produce legislation for England and the devolved authority will produce legislation for its own area of devolved responsibility.

2.4.9 However, there are rare occasions where, either for reasons of convenience for the reader – for example, where the requirements for the relevant industry are the same in both England and the area of devolved responsibility - or for resource or timing reasons, it may be agreed between Westminster and a devolved authority (usually the Welsh Ministers) to have only one instrument that is made by both of them, but with each authority making it only in respect of their own areas of responsibility. These are not ‘joint’ instruments, as each authority is only making the instrument in relation to its own responsibilities, and is not purporting to legislate for areas outside its own competence. Such instruments are sometimes referred to as ‘composite’ instruments, and they can raise difficult issues for the drafter13.

2.5 Instructions

2.5.1 Your policy colleagues should involve you early, as a member of the team, particularly if there is a possibility of legal issues arising. This may not always occur, however, and sometimes your policy colleagues will not have appreciated that lawyers’ advice is needed.

2.5.2 Ask your policy colleagues for written instructions accompanied by all relevant documentation not readily available in your legal Department. Written instructions enable those coming to the instrument after you to see why it was drafted in the particular way chosen, or what the intention was. It may also be helpful to encourage policy colleagues to explain their underlying policy aims, as an understanding of them can assist a lawyer in suggesting alternative solutions.

2.5.3 There is an example of good instructions on the Secondary legislation site on LION here: https://lion.governmentlegal.gov.uk/the-law/legal-topics/secondary-legislation/useful- papers.aspx?page=2&dateFilter=desc&itemsPerPage=10

2.5.4 Consider your instructions critically and carefully:

13 See the JCSI’s 21st Report of Session 2010-12, in relation to S.I. 2011/695. 28

a) Cross-check with your vires.

b) If there are elements of the instructions you do not understand, probe them (or find out background for yourself if necessary) until you do. This reduces the risk of unintended consequences.

c) When implementing EU obligations, departure from the EU concepts is a risky practice and not one to be adopted without good reasons. As for how to deal with ambiguous EU law concepts see the guidance on Implementing European law, edited by DExEU Legal Advisers available on LION here:

https://lion.governmentlegal.gov.uk/the-law/legal- topics/european/Guidance%20on%20EU%20Law/Implementing%20European%20Law.a spx.

2.5.5 Below are some other suggestions:

a) Do not automatically accept words, phrases or structures which your policy colleagues suggest. You may need to re-work the proposals to fit legal concepts or the language of the enabling Act or related aspects of the legislative background.

b) Sometimes it may not be realistic or practical to wait for full formal written instructions. In those situations, if it is possible, it may help the process if you try to sketch out something into which you can add more detail when this is known. An early draft with lots of square brackets and questions may stimulate better instructions in the long run. If you do this for the whole or part of the draft instrument, make sure you explain any assumptions on which the drafting is based and list your questions to avoid being at cross purposes with your policy colleagues, and that clear instructions are eventually recorded.

c) Generally you should not accept a draft instrument from policy colleagues. There are dangers in doing so: the policy aims of the policy colleagues may be hidden, for example. It is better that they set out their aims expressed in ordinary language and in terms of outcomes, i.e. what is to be achieved rather than what changes in the law they want, with any necessary explanations, than lock the drafting lawyer’s mind onto a particular construction which may not achieve those aims, or mask what is truly required.

d) There is however usually no objection to policy colleagues supplying a draft text of, for example, a technical Schedule but even this will need to be checked thoroughly for errors or omissions, to ensure that it makes sense. For example, sampling and testing provisions need to leave no ambiguity about how and by whom samples must be taken, the carrying out of the test, how the sample passes/fails the test and the effect of passing/failing on both the sample and the consignment from which the sample is taken. Also make sure that the rest of the draft accommodates the Schedule precisely - any cross-references, for example, will require thorough checking. In this context remember that responsibility for the content of the whole of the draft rests with the drafting lawyer. 29

e) If technical information is to form part of the instrument it is a good idea to establish early on where this derives from and agree with your clients what is the best way of incorporating it into the instrument. Your policy colleagues may not have appreciated the difficulty of using non-legal language which, perhaps, they have been accustomed to using in guidance. On the other hand, there may be material which will need to be inserted verbatim, for example in a Schedule. It is worth considering at an early stage how in practical terms this will be achieved; is it available electronically, for example, or will it need to be typed out or scanned in? Where inserting material it is important to ensure that the SI Template validates early on, as late difficulties with validation can cause a lot of lost time at the point where timing matters.

2.6 Before you draft - think!

2.6.1 Time spent thinking before anything is drafted is very seldom wasted. It pays for itself many times over later in the process. Again, below are some suggestions for preliminary steps before drafting, where time allows:

a) Establish the structure of the instrument with care. It may be useful to work out in chronological order the steps needed to achieve what the policy requires.

b) In the same way establish the necessary concepts. You may find you come to include them as definitions (see paragraph 4.3.3).

c) It may be a good idea at this stage to cast an analytical eye over a general selection of recent instruments. (It will be essential to look at related and similar instruments under the powers you are to use.) Note in particular the objectives which each instrument seeks to achieve and how the structure of each instrument relates to those. With an eye to the drafting task which lies ahead of you, note how the drafting lawyer of each of these instruments has expressed ideas in precise terms. It may be of more value still to examine existing legislative provisions which are designed to achieve a task similar to that before you14.

d) But precedents should be used with circumspection. The JCSI rightly does not accept that precedent provides any justification for error: see paragraph 4.4.1. And you should be wary of closing your mind to new and possibly better ways of expressing ideas by being bound by what has been done before.

2.7 Drafting procedure

14 When instructed to draft provisions separating land drainage rates into bands according to land values, for example, it proved useful to examine the council tax provisions of the Local Government Finance Act 1992, which contains similar provisions to those required, in respect of residential property. 30

2.7.1 As you gain experience you will develop your own way of working. The following is offered in the spirit of helpfulness; it need not be uncritically adopted:

a) Ideally, you should do a first draft for your own use. This gets you confident with the material and familiar with the policy ideas. It also gets you started. Having sketched out the provisions once, you may be able to identify pitfalls with the policy which you had not appreciated before. You may also find that your planned structure does not work or that, having got to the end, a better structure presents itself. Provided there is time, use the initial draft as a learning process, and move on from it to what hopefully will be a more useful version which you can circulate for comments.

b) The extent of the powers is something to have in your mind throughout the exercise. In all but the simplest cases, you should annotate each provision of your draft as it progresses with the power being exercised in making it. This helps to prevent errors as new provisions are added. It certainly makes life incomparably easier for anyone else who later comes to look at the draft.

c) Consult colleagues who have experience of the area to avoid re- inventing the wheel and looking at precedents (although as to this see paragraph 2.6.1(d) above). But do not be afraid to improve and update language used in an earlier instrument as long as that will not damage the interpretation of the earlier instrument or of a body of legislation that needs to be read as a whole. Clarifying an expression used in an earlier instrument may not necessarily entail resolving the expression in the earlier instrument in a different way, but it would act as an indication that the earlier instrument contains a potentially arguable ambiguity.

d) Time allowing, it is often useful to draft an instrument and then leave it for a day or two. When you come back to it you may spot errors, or be able to see better ways of drafting, which did not leap out at you before. Being objective and seeing problems in one’s own drafting is not easy, hence the importance of at least “two pairs of eyes”.

e) You can achieve a degree of objectivity by looking through the draft for one thing at a time. Check the numbering, then the footnotes, then the use of the powers, for example. Check for internal consistency (a fruitful hunting ground for the JCSI) e.g. in use of terminology, dates and phrases. For example, if you define “notice” as “notice in writing”, you shouldn’t repeat “in writing” for specific notice provisions. This point, or slight variations on it, can come up repeatedly in JCSI Reports15.

f) Check and re-check cross-references as it is easy for these to go awry.

g) Check that definitions have not been left in that relate only to an earlier stage of drafting, and the term no longer appears. This can be done using the “find” function in Word.

15 See 3rd Report of Session 2005-6 in relation to S.I. 2005/641, 7th Report of Session 2005-6 in relation to S.I. 2005/1998, and 9th Report of Session 2005-6 in relation to S.I. 2005/2115. 31

h) Try to achieve the highest level of accuracy you can in each draft – try to resist the temptation to circulate a ‘rough and ready’ version which you plan to tidy up as there may be even less time for this later in the timetable than at the beginning, you will forget all the points you meant to go back to, and sometimes thinking about the detail calls to mind other points you need to cover. Before sending off the first draft, it is a good idea to read through the instructions again and note where in the draft each request is reflected (and if not, why not). Keep, and keep up to date, a drafter’s note of outstanding issues.

i) There are various ways of flagging up issues to your clients. The important thing is to make sure your clients realise that their comments and contributions are required. It may also help you if you use a system which enables you to ‘tick off’ the issues as they are resolved e.g. by numbering the drafting questions. (Note that using ‘track changes’ can cause problems with formatting and, ultimately, validation of instruments drafted using the template, so caution is needed.)

Second and subsequent drafts

2.7.2 Drafting involves continuous collaboration between lawyer and policy colleague. Even if the instructions are fully comprehensive, the instrument is likely to go through a number of drafts, and there may be substantial changes and additions along the way, particularly once policy colleagues see the effects and consequences of their policy aims in legislative terms. There is no hard and fast rule as to how many drafts make a successful final instrument and clients should be dissuaded from thinking there is. The important thing is:

a) to get it right, and

b) for you and your policy colleagues to realise this is best achieved by dialogue.

Hopefully the number of drafts will not be unduly increased by you changing your mind about the structure. But if a change of heart leads to a better instrument in the end, so be it. Multiple drafts (say, 5 or more) most often result because the policy changes after the initial instructions (or was never settled in the first place).

2.7.3 Some further suggestions are:

a) Try to discover the reason for a client’s objection if this is not immediately clear. A common complaint is that the words aren’t simple enough. Bear in mind that the JCSI have said it will comment on how comprehensible the instrument is. If, however, the draft is as straightforward as it can be within the constraints of legislative drafting, sometimes the answer may be for your policy colleagues to provide a simplified version in guidance. For example, the appropriate sequence within the instrument may not be the process as it will happen in practice; guidance can set out what is to happen in a different order for those who are to apply the instrument and can use aids not available to legislation, such as process maps. Clients also may not appreciate that legislation needs to be precise and

want you to use words, such as names of projects, which have no established basis or meaning.

b) Changes to the instructions as the draft progresses should be recorded in writing so that anyone looking at the background papers can see what was intended and why. However, the best progress is often made in meetings and on the telephone when you may find you and your clients have been at cross purposes or otherwise have not fully understood one another or identified all the issues. Make sure there is a record of these meetings or discussions.

c) You will have checked the up to date legislation when you began drafting. As you near the final version check the position again, in particular changes to instruments which are amended frequently. Similarly towards the end of the drafting process it is advisable to check any references, especially in footnotes, to legislation outside the instrument.

d) Run the draft through the validation template from time to time: this way you may pick up and deal with small points as you go, rather than being faced with a large number of validation errors at the end that need to be dealt with when you may be under other pressures.

e) Your instrument may be related to another one being prepared by another lawyer in your Department or even in another Department. If so, you should obviously liaise with them early on as to how the two instruments fit together and what the order of making and coming into force should be. From time to time you should be checking with each other to see if the plan still holds; it should be remembered that if an instrument cross refers to another one the one referred to should be 16 made on the same day as (or an earlier day than) the referring instrument .

Final draft

2.7.4 When you and your clients are satisfied with the draft, it may need to be signed off by a senior policy colleague before ministerial signature and you will need to follow your Department’s internal procedures for checking by other lawyers. It is important to re- check references to other legislation at this stage, particularly where there has been a long consultation stage or other time lag. The latest amendments to EU instruments will often have moved on, and there have been examples of designation orders having revoked and replaced designations cited.

2.8 Consultation

2.8.1 You may feel this is more a matter for your policy colleagues than for you. Be aware, however, that before the Secondary Legislation Scrutiny Committee (formerly known as the Merits Committee) was set up, the JCSI gave notice that it intends to conduct exercises as

16 See the JCSI’s 34th Report of Session 2005-6, where S.I. 2006/1503 was subject to defective drafting criticism for making an instrument depend on another instrument that had not yet been made. 33 and when appropriate into the way the consultation process was conducted17. This has been taken up to a greater extent by the Secondary Legislation Scrutiny Committee, which routinely asks who has been consulted, what was the outcome and what the Department did to accommodate concerns18. So these matters will need to be dealt with in the Explanatory Memorandum (see paragraph 2.16.8 below). As it will fall to you to draft the memorandum in response to any JCSI/SCSI request for clarification you may want to make sure that policy branch have the answers in advance (see also paragraph 2.16.7(i)).

2.8.2 It is no longer the case that consultations should last a minimum of 12 weeks. Detailed guidance on consultation principles is available on the Admin law site on LION here:

https://lion.governmentlegal.gov.uk/the-law/legal-topics/admin-law/consultation- guidance.aspx.

Current guidance in the Cabinet Office Consultation Principles (revised in 2018) is available here:

https://www.gov.uk/government/publications/consultation-principles-guidance

and states:

“Consultations should last for a proportionate amount of time. Judge the length of the consultation on the basis of legal advice and taking into account the nature and impact of the proposal. Consulting for too long will unnecessarily delay policy development. Consulting too quickly will not give enough time for consideration and will reduce the quality of responses… Consultations should take account of the groups being consulted… Charities may need more time to respond than businesses, for example. When the consultation spans all or part of a holiday period, consider how this may affect consultation and take appropriate mitigating action.”

2.8.3 Consultation may take place when the policy is initially being formulated or when the policy has been refined into definite proposals. It may occur with or without a draft of the instrument. If your instrument is to be consulted on it is recommended that you ensure the word “DRAFT” appears prominently so that issue cannot be taken if drafting changes later occur.

2.8.4 Consultation which is required by statute must of course take place with such bodies or persons as the enabling Act requires. As well as the enabling Act, remember to consider whether paragraph 24 of Schedule 7 to the Tribunals, Courts and Enforcement Act 2007 requires consultation with the Administrative Justice and

17 See paragraphs 25 to 27 of its 10th Report of Session 2001-02 concerning the Financial Services and Markets Tribunal Rules (S.I. 2001/2476). 18 See the guidance on completing the ‘consultation outcome’ section of the Explanatory Memorandum in the Guidance referred to in paragraph 3.16.5 below, and the section on ‘consultation outcome’ in the Select Committee on Statutory Instruments’ Guidance referred to in paragraph 3.16.6 below. 34

Tribunals Council – this is where the changes made by your instrument affect procedural rules for certain tribunals. Where local authority associations are to be consulted, your clients may need to check with colleagues about other consultation exercises being conducted with them by the Department, to avoid confusion or overload as far as the associations are concerned.

2.8.5 In Howker v Secretary of State for Work and Pensions and Social Security Advisory Committee [2002] EWCA Civ 1623 the Court of Appeal made it clear that a defective statutory consultation could amount to a procedural error affecting the 19 validity of a regulation . 2.8.6 For non-statutory consultation, there is relevant caselaw. In R (oao Greenpeace Ltd) v Secretary of State for Trade and Industry (2007) [2007] EWHC 311 (Admin) a legitimate expectation of the fullest public consultation had been created in relation to nuclear new-build, and a consultation document that declared the Secretary of State’s support for it as part of the future of generating electricity was invalid. Drafters should always establish with policy what statements have been made about consultation and what practices have been adopted that might lead to an expectation of consultation in the absence of a statutory requirement.

2.8.7 It may be that the courts will not generally imply a requirement of consultation where statute does not provide for one. In R oao Stamford Chamber of Trade and Commerce v SoSCLG & South Kesteven DC (2009, unreported) in a planning rather than SI context it was held that absent an express promise, and given the planning context where consultation requirements were often expressed, the Court would not imply one where statute did not provide for one.

2.9 Final checking/Proof reading

2.9.1 The importance of a final check or proof reading cannot be over- estimated. Most letters received from the legal advisers to the JCSI relate to typing or printing errors and instruments are frequently reported by the JCSI for what amounts to no more than editorial carelessness.

2.9.2 A significant proportion of typing and similar errors are found to have been carried forward from the very first draft. Those who, despite what is said in paragraph 2.6.1, like to work on the principle of a fairly preliminary first draft, should always check the text carefully at a later stage.

2.9.3 Where, as is usually the case now, an instrument is being printed from the template, make sure you and your policy colleagues allow some time at the end of the process to check the text carefully before it is sent for signing. In this context it is usually easier to spot mistakes when looking at a paper version of the instrument rather than on screen. Once this stage has been reached any further changes will of course need a complete re-checking of the whole instrument. Once signed,

19 In Howker officials had used the term “neutral” in explaining the changes in a draft SI to the Social Security Advisory Committee (“SSAC”) although there were cases in which persons would be disadvantaged. The Court of Appeal accepted the argument that the instrument was ultra vires because the consultation (with SSAC) was flawed. 35

mistakes (apart from those so insignificant that JSCI advisers regard them as appropriate for correction slips and/or website or annual edition rectification) cannot be rectified except by an amending instrument (and see the next section).

2.9.4 The final text should be read carefully for sense, as well as for spelling, punctuation, word meaning and grammar. Watch out in particular for the following:

a) unintended changes in meaning occasioned by incorrect layout - e.g. words which should be full out to the margin being incorrectly included in a subparagraph,

b) words that are missing altogether – ‘not’ being the classic example,

c) printing or typing errors which comprise a word which is contextually incorrect (e.g. ‘form’ instead of ‘from’), or which could make sense in the context but is the wrong one, e.g. ‘not’ for ‘now’: neither type will be picked up by a computer spell-checker.

Where proofs are obtained, both you and your clients should proof read the printed document and agree the changes that should be made.

2.9.5 Those carrying out internal checking procedures are referred to in the JCSI’s requirements for affirmative instruments:

“The draft should also have been checked, in accordance with the Department’s own arrangements, to the same level as that required for an instrument being submitted for signature and have been approved by an SCS lawyer as being in a form suitable for laying.”

Full guidance on informal pre-laying scrutiny of affirmative instruments by the JCSI is available on the UK Parliament website:

http://www.parliament.uk/business/committees/committees-a-z/joint- select/statutory-instruments/prescrutiny/prescrutiny-of-affirmatives/.

2.10 Discovery of errors

2.10.1 The basic rule for instruments which have been made is that the printed version must correspond precisely with the version as signed by Ministers. Any printing or template-generated error which makes the instrument different from that signed can be corrected by means of a correction slip, with an appropriate amendment in the printed, bound, annual edition. There is also some scope for further flexibility, as follows:

a) Remember that the Explanatory Note is not part of the instrument, and can be changed between making and printing of the final version.

b) The same goes for footnotes and the italic notes (and so when an italic note said “laid before Parliament” when it should have said “Laid before the House of Commons” the italic note could be changed).

c) In paragraph 3 of its 9th Report for 2004/5 reporting on SI 2005/41 the JCSI appear to have accepted the Department’s indication in its memorandum that a correction slip would be issued to rectify an error in the preamble. However that Report predated Vibixa Ltd v Komori UK Ltd & Others [2006] EWCA Civ 536, which laid down that failure to specify a power in the preamble could have a legal effect, so it cannot be assumed that acceptance would now be replicated.

2.10.2 In practice, objection is seldom taken to correcting an obvious error by means of a correction slip, where the alteration has no possible effect on the meaning of the instrument. Previous Speaker’s Counsel (Stephen Mason) told the 1995 SI drafting course that an “obvious clerical error” may be changed for publication after an instrument has been signed, and the JCSI have been alerted to (and did not object to) a correction effected by deletion of a single word which alone made the text of a provision it queried impossible to make sense of, but it is unlikely that it would countenance any change other than one where the error was small scale and obvious and the text and position of the necessary correction equally obvious. The availability of correction slips has been further clarified by the JCSI in its report on S.I. 2008/704 (3rd Report of Session 2007-8), where the JCSI agreed with HMRC’s approach to correction slips:

“2.4. The memorandum also mentions the Department’s approach to the Office of the Statutory Instrument Registrar to seek rectification of the error by the issue of a correction slip. Here the Committee observes that, while two of the three tests that it has generally regarded as appropriate for the issue of a correction slip have been met in this instance (i.e. that the error should be small scale and that it should be obvious), the third such test (i.e. that the text and location of the correction should equally be obvious) does not appear to have been met in full. Correction could equally straightforwardly have been achieved (with no change of meaning) by the insertion of the two definitions after the definition of “open-ended investment company” in regulation 2(1)(b) of the 1998 Regulations. On that basis, it would have been better had the Department proceeded by amendment, though the Committee recognises that the decision whether to issue a correction slip is a matter for the Registrar and also commends the Department for its openness in indicating how it was proceeding.”

2.10.3 Some Departments will have their own internal procedures for authorising corrections to instruments. The SI Registrar may require the Department to justify any decision to proceed by way of correction slip and may, in an appropriate case, seek advice from the Counsel to the JCSI. A small charge is made for issuing a correction slip.

2.10.4 Where an error in a signed instrument which cannot be dealt with at pre-publication stage is spotted before the coming into force of the instrument, rectification can be 37

achieved either by amending the defective instrument with the amendment to come into force no later than the same day or (as the JCSI prefer) by the revocation of the defective instrument and re-enactment as corrected, with the same coming into force day 20 . Note that if instrument B contains an erroneous amendment of an original instrument (instrument A) any correction of instrument B by instrument C must come into force before the salient provision of instrument B does, otherwise there will be an ambiguity in relation to what text is inserted into instrument A.

2.10.5 Where the erroneous instrument is revoked, it is possible to obtain authority not to publish the original one by writing to the Commons Clerk to the JCSI identifying the error, explaining the revocation and replacing the enacted version, stressing that the flawed version will have no independent life, and seeking the consent of the Statutory Instruments Reference Committee (see SIP section 5.6). Consent may also be given if the life of the new instrument is so short as to be insignificant.

2.10.6 SIP paragraph 4.7 contains information about correcting errors in SIs, and see also paragraphs 4.13.1 – 4.13.8 on the procedures for withdrawing SIs after laying or after publishing.

2.11 Publication and Printing; General

2.11.1 Sections 2 and 3 of the Statutory Instruments Act 1946 make provision for the numbering, printing, publication and citation of instruments.

2.11.2 Section 3(2) of the 1946 Act provides that in any proceedings for an offence consisting of a contravention of a provision of any statutory instrument it is a defence to show that the statutory instrument had not been issued by HMSO at the date of the alleged contravention, unless it is proved that at that date reasonable steps had been taken for the purpose of bringing the purport of the instrument to the notice of the

public or of persons likely to be affected by it or of the person charged.

2.12 Publication and Printing: SI Template

Introduction

2.12.1 This topic is dealt with in detail in Part 4 of SIP. Most statutory Instruments can be published directly from the template in print and on the www.legislation.gov.uk website. (The process is referred to here as “electronic transmission”.)

2.12.2 A new SI template (version 9.0) was issued in June 2018. It enables SI drafters to include text formatted in EU paragraph styles, and new wording to deal with the Parliamentary sifting of negative SIs under the EU Withdrawal Act 2018. Drafters

20 See also SIP paragraphs 3.4.10 to 12 on correction slips and free amending instruments. 38

must use the new template if drafting a negative SI under that Act, or if drafting an SI which inserts blocks of text into retained versions of EU Regulations and Decisions. Version 9.0 of the template can be downloaded here (N.B. Drafters in some departments may need their IT support team to assist, or you can email [email protected]).

2.12.3 Electronic transmission dispenses with the need for a typesetting and proof reading stage. It should ensure that laying and publication take place on the same date.

2.12.4 For nearly all instruments you should be able to use electronic transmission. The exceptions are set out on the TSO website. Broadly they apply when your instrument contains colour or dual language (except English/Welsh in Welsh instruments). Also you cannot use electronic transmission if your instrument overrides the SI template styles in respect of fonts, indents and paragraph numbering.

2.12.5 You and your policy colleagues will need to be clear whether you are using the template for printing as this affects the timetable. In the rare cases in which you need to go through conventional printing you can still draft the instrument on the template and send it to The Stationery Office Ltd (“TSO”) for typesetting and preparing proofs. However you must allow plenty of time for this process, including proof checking. Current arrangements, and their timing implications, should be checked well in advance. Conventional printing will also involve extra costs to your Department.

Process when the template is used

2.12.6 For instruments which are made before laying, the drafting lawyer will liaise with the Department’s SI processing unit to ensure the instrument which is signed is the final agreed version. This is the version which the processing unit send, after signing, to HMSO. HMSO then registers and numbers the instrument and emails it to TSO. TSO will arrange for the instrument to be printed and copies supplied to the Department for laying. TSO publishes the instrument in print and on the www.legislation.gov.uk website.

2.12.7 For instruments laid in draft the process is similar. When the draft instrument is in the correct form for laying you will liaise with the Department’s SI processing unit who will send the electronic version to HMSO with the Explanatory Memorandum. TSO will publish the draft in print and on the www.legislation.gov.uk website and send copies to the Department for laying.

2.12.8 If approved in debate, the instrument will, following signing by the Minister, be sent by the Department’s SI processing unit to HMSO who will number and register the instrument and email it to TSO. TSO will arrange for it to be published in print and on the www.legislation.gov.uk website and for the Department to receive copies.

2.12.9 The text becomes “fixed” when HMSO have added the number, which means that TSO cannot change it. For the record, and as a precaution, it is suggested you

keep a hard copy (and perhaps an electronic one as well) of the instrument as sent for printing. (Section 2.10 deals with what to do if you discover an error; errors have sometimes crept in in the process of transmission due to editing changes being reversed.)

2.12.10 If you need SI numbers in advance (e.g. because you have a sequence of instruments which require cross-referencing to each other) your Department’s SI processing unit will be able to contact HMSO to allocate numbers in advance. However, it should be noted that advance numbers cannot be requested for instruments subject to draft affirmative procedure until Parliamentary approval has been notified. Where applicable, this should be confirmed to the SI Registrar when

making a request .

2.12.11 This paragraph is intentionally blank.

2.12.12 Other matters to take into account when using the template are:

a) When drafting do print out the instrument as there may be problems in the appearance or layout which you can identify by eye which were not apparent on the screen. For example, when using Tables, you may find rows of text are too close together on the printed page and you need to adjust the spacing; or you may want to ensure that borders visible on screen do not appear on the printed page. The SI/SR template manual (available on the SI template website) contains useful guidance on how to adjust tables, including the Table features in Word.

b) You should allow plenty of time to validate your instrument. TSO cannot accept it for printing unless it has been validated. Any last minute difficulties will risk delaying the timetable. For details of how the validation service works see SIP section 4.4.

c) If you have difficulties validating your instrument then in the first instance you should try and resolve these using the “Error Message Guide” and the “SI/SR Template Manual”. These are both available on the www.legislation.gov.uk website (see paragraph 2.12.2). From there the Message Guide is available through the SI template validation portal where you click on “SI Template Validation”. If you are still stuck, you can email the SI support desk, [email protected], for departments on the gsi or x.gsi networks, otherwise [email protected].

d) Validation simply checks whether the formatting elements of the instrument are right, e.g. ‘style’ is used in the right place; it is your responsibility to make sure that the content is legally correct.

e) When your Department’s SI processing unit sends the instrument to HMSO for registration and numbering, it is a good idea to make sure that they pass on to TSO your contact details or contact details of another person in the Department who can deal with any validation comments from TSO. This is particularly important when the instrument is urgent. 40

f) As legal Departments are the last stage before making (or laying, in the case of an instrument laid in draft) it is a good idea as mentioned in paragraph 2.9.3 to agree with the policy colleagues a final period in the timetable (say 5 working days) before making (or laying in draft), for you and your clients to review the drafting for simple errors, cross-references etc. Discourage all but the most essential changes

once this point has been reached.

2.13 Classification of SIs as general or local

2.13.1 Regulation 4 of the Statutory Instruments Regulations 1947 makes provision for the classification of instruments as general or local. This is dealt with in section 3.3 of SIP although it is not always easy to apply the principles in paragraph 3.3.2 (“An SI will usually be local if its nature is personal, local or private and general if its nature is public and general, unless there are special reasons to the contrary”21). The significance of classification as local is that the instrument is not required to be printed although TSO will print local instruments if requested and in many cases Departments make such a request. If a local instrument is printed, it will appear on the www.legislation.gov.uk website but not in the annual bound edition of instruments. Also, if an instrument is local and not laid before Parliament it does not fall within the terms of reference of the JCSI.

2.13.2 Counsel (Legislation) and Deputy Counsel to the Chairman of Committees have made the following points about classification:

a) in a case where the enabling powers provide for instruments to relate to institutions, where the instrument relates to a single institution it should be classified as local; on the other hand if an instrument relates to more than one institution it should be classified as general on the basis that separate private Acts would be needed to make the same provision for separate bodies;

b) the fact that an instrument amends, in relation to the local area, an Act or instrument of general application does not make that instrument general;

c) the fact that a local instrument will be of general interest or attract wider publicity is not a reason for altering its classification but is a good reason for printing it.

2.13.3 Paragraph 3.3.5 of SIP says “If in doubt about classification as local or general, consult the SI Registrar”. A complete draft of any instrument in question plus any relevant background should be provided. (See paragraph 1.7.8(a) for contact details.)

21 This wording in SIP gives the practical effect of the more technical wording of the regulation, which draws the distinction by reference to whether the SI is in the nature of a local and personal or private Act on the one hand, or of a Public General Act on the other. For an explanation of when an Act is “local” or “general” see Erskine May 24th Edition pages 924 to 931. 41

2.14 Laying

Documents for Laying

2.14.1 The laying of instruments and the documents needed to accompany them are covered in SIP sections 4.8 to 4.11. Note paragraph 4.9.1 which states that: “In general, you should lay an SI before Parliament or the House of Commons as soon as possible after registration”. The JCSI’s terms of reference include reporting that there appears to have been an unjustifiable delay in the laying of an instrument 22. before Parliament

2.14.2 What is needed in any particular case depends on whether:

a) the instrument is subject to affirmative or negative resolution procedure,

b) the instrument implements EU legislation,

c) the instrument is subject to a ‘super affirmative’ procedures - see section 18 of the Legislative and Regulatory Reform Act 2006 and section 11 of the Public Bodies Act 2011.

2.14.3 The documents which may be needed on laying are:

a) (Explanatory Memorandum (see paragraphs 2.16.5 to 2.17.9),

b) Transposition Note (see paragraphs 2.19.5 to 2.19.11),

c) a copy of any outside publication referred to in the instrument,

d) two copies of all European documents cited in the instrument where an instrument gives effect to EU obligations.

When can Instruments be laid?

2.14.4 Instruments subject to negative resolution may be laid before Parliament at any time when there is a Parliament in existence. Parliament continues to exist during an adjournment and during a recess (the period between prorogation and reassembly in a new session). The Secondary Legislation Scrutiny Committee (see section 2.16 below) have however drawn the special attention of the House to instruments on the basis that they have come into force during the recess23. But between the dissolution of a Parliament and the meeting of its successor there is no Parliament in existence.

2.14.5 An affirmative resolution instrument which is laid in draft, or one which requires approval before it may come into force, may only be laid when Parliament is sitting.

22 For an example of such a report see the 9th Report of Session 1999/2000, paragraph 9. 23 See the 19th report for 2005/6. “Recess” is used here in its commonly used sense, that is, a significant period of adjournment. 42

2.14.6 For the impact of a general election on the laying of instruments see section 2.14 of SIP. Departments also issue guidance about the laying of instruments during the “election sensitive period” (formerly “purdah”) in relation to any election period.

2.15 Coming into force

21-day rule

2.15.1 The extent and purpose of this rule (which applies to negative resolution instruments only) are set out in paragraph 2.11 of SIP (and see paragraph 2.14.7 in relation to dissolution). It is a rule of practice that instruments subject to negative resolution are generally to be laid and copies are to be provided to the JCSI at least 21 days before they come into force.

2.15.2 The purpose of the rule is to allow the Committee time to consider the instrument before it comes into force. Note that the period is a minimum, not a maximum or recommended period. Departments should endeavour to provide the JCSI with a longer period for consideration, especially where a 21 day period would lead to a bunching of instruments around a common commencement date.

2.15.3 21 days means 21 calendar days (including days when either House is not sitting) and includes the day of laying (day 1) so that the earliest the instrument can come into force is on day 22.

Where the rule is to be broken

2.15.4 The rule should be observed whenever possible. The decision to break the rule is for policy colleagues to take, but on legal advice (and there may be Departmental requirements, e.g. having Director-level policy and legal clearance). If it is to be broken an explanation of the reasons for the breach needs to be given to the JCSI. The explanation is now normally given in the Explanatory Memorandum (see paragraphs 2.16.5 to 2.17.8) to accompany the instrument when laid which explains the reasons for the breach. The explanation needs to cover:

a) why the instrument could not have been made and laid sooner,

b) the reason why it had to come into force on the day specified, and

c) what the consequences of delaying the legislation to comply with the rule would be.

2.15.5 Printing delays or administrative mistakes will not be a sufficient explanation and may lead to JCSI or Secondary Legislation Scrutiny Committee criticism, as may other delays which the Committees regard as created by Departments themselves e.g. time taken to settle the policy or consult. Good reasons for breaking the rule 43

may be, for example, that the effect of a recent court case needs to be overturned urgently (explaining why the urgency) or to meet a fixed deadline (e.g. an accounting year) where steps to make the instrument could not have been taken earlier for other good reasons24.

2.15.6 The JCSI or Secondary Legislation Scrutiny Committee are likely to draw special attention in their reports to instruments which in their view come into force unreasonably soon. They may do so even in relation to instruments which are not subject to the 21-day rule – see SIP paragraph 3.12.10 in relation to affirmative instruments. Therefore, Departments should aim to give Parliament and those affected a full opportunity to be aware of any instrument (including those which are not required to be laid) before it takes effect. Departments should try to give more than 21 days if the SI includes significant new policy (paragraph 3.12.12 of SIP).

Coming into force before laying

2.15.7 There is an additional rule, deriving from section 4 of the Statutory Instruments Act 1946, that an instrument should not come into force before it is laid (and a breach of that rule will also involve a breach of the 21-day rule). Nevertheless, this too is possible if it is really essential but involves notification to the Speakers of the House of Lords and the House of Commons (for more detail, including the effect on the order of italic information in the instrument, see SIP paragraphs 4.9.4 to 4.9.7). Be careful too about instruments that come into force on the day that they are laid: by section 4 of the Interpretation Act 1978, where the instrument is stated to come into force on a particular day, it comes into force at the beginning of that day (see Annex 1 paragraph 3). So, unless you make the position clear by adding times of coming into force and laying, an instrument expressed to come into force on the same day that it is laid will breach the rule that an instrument should not come into force before it is laid. It is also likely to raise retrospectivity and hence vires issues.

Coming into force: affirmative instruments

2.15.8 Although the 21-day rule applies only to negative instruments, the JCSI expect a period of at least 21 days to elapse between the making and coming into force of an affirmative instrument that:

a) significantly diminishes the legal rights of persons affected,

b) imposes new duties on such persons which are significantly more onerous than before, and requires them to adopt different patterns of behaviour, or

c) involves criminal sanctions.

24 See the 2nd report 2002/3 paragraph 3 and 12th report 2003/4 paragraph 2 for examples of cases where the JCSI reported adversely on SIs which broke the 21 day rule and Appendix I to the 14th report for 2003/4 for an example of a case where the JCSI was satisfied with the reasons given for breaking the rule. 44

In the absence of a strong policy justification, the JCSI considers that those affected must be given a reasonable chance to adapt to the changes required and that a date earlier than 21 days after an instrument of this type is made is unlikely to be reasonable25. If an affirmative instrument does a number of different things, only the parts falling within the description above will require delayed commencement. If a department considers there is a strong policy justification for not delaying commencement, this should be fully explained in the Explanatory Memorandum (unless the JCSI are already aware of a department's practice in relation to affirmative instruments of the relevant type and have raised no objection). A department should explain its reasoning in any case where it considers there is a real risk the JCSI would expect a longer period to be given.

2.16 The Secondary Legislation Scrutiny Committee and the Explanatory Memorandum

What is the Secondary Legislation Scrutiny Committee?

2.16.1 The Secondary Legislation Scrutiny Committee is the successor to the Merits of Statutory Instruments Committee of the House of Lords. Its principal remit is instruments or drafts of instruments which have been laid and which may be or might have been subject to Parliamentary proceedings, but subject to the same exclusions as the JCSI (that is LROs, some N.I. Orders in Council, HRA remedial orders, CoE Measures etc). The Committee also has a specific role in relation to the scrutiny of Orders under the Public Bodies Act 2011.

2.16.2 The Committee considers whether the special attention of the House should be drawn to an instrument on any of the following grounds:

a) that it is politically or legally important or gives rise to issues of public policy likely to be of interest to the House,

b) that it is inappropriate in view of the changed circumstances since the passage of the parent Act,

c) that it inappropriately implements EU legislation,

d) that it imperfectly achieves its policy objectives.

25 See the JCSI’s 1st Report of Session 2014-15 45

2.16.3The Secondary Legislation Scrutiny Committee requested that Departments should provide an Explanatory Memorandum to accompany all instruments within the Committee’s remit, setting out a brief statement of the purpose of the instrument and providing information about its policy objective and policy implications. The Government, as well as agreeing to the Committee’s request, has decided that such memoranda should also be prepared for instruments which are laid before the House of Commons only. Section 2.9 of SIP gives guidance on the provision of these Explanatory Memoranda. See also paragraphs 2.16.5 to 2.16.9.

2.16.4 The Explanatory Memorandum should be laid with the instrument or draft. For instruments which are only required to be laid before or are only subject to procedures within the House of Commons, an Explanatory Memorandum is produced, but supplied only to the Commons Select Committee on Statutory Instruments.

English Votes for English Laws

2.16.4A Since October 2015, all SIs that are scheduled for debate (i.e. all affirmative instruments, and any subject to the negative procedure which are prayed against and scheduled for debate) are subject to the English Votes for English Laws (“EVEL”) procedure. The effect of this is that where-

 every provision of the SI relates exclusively to England (or to England and Wales), and  the subject matter of every provision is within the legislative competence of the Scottish Parliament or the Northern Ireland Assembly or (in the case of an instrument which applies only to England) the Welsh Assembly, then MPs with constituencies in England (or, where relevant, England or Wales) will be asked to give their consent in the event that a vote is taken by the whole House on a motion to approve or annul. Further detail, and guidance on how to decide whether the two limbs of the test above are met, can be found in the Cabinet Office Guidance.

2.16.4B The template for Explanatory Memoranda was amended in 2015 to ensure that Departments provide sufficient information to enable the Speaker to determine whether an SI should be certified as being subject to the EVEL procedure, and was revised by DExEU in June 2018 to allow for the EU exit process. The current version is available on the TNA website here.

Form and content of the Explanatory Memorandum

2.16.5 A sophisticated template is used to produce the Explanatory Memorandum. It is important that the up to date version of the template is used and completed correctly, because the SI Registrar will refuse to register an instrument that is accompanied by a non-compliant Explanatory Memorandum. Thus the laying of a negative instrument may be delayed while the department addresses the issue and resubmits the Memorandum, which may cause the 21 day rule to be broken in 46

cases where the department had been relying on the absence of such a delay to achieve bare compliance with the rule. The template, and guidance (by the National Archives) on how to complete it (both as to content and the technicalities of the template) can be downloaded via the link in the preceding paragraph (which requires the user to be registered: clients who are not regularly involved with SIs may prefer the drafter, who will be registered for validation purposes, to download and email these tools to them). It is worth encouraging clients to read the guidance carefully before starting to use the template, as otherwise mistakes may easily be made which could lead to the Memorandum being rejected by the SI Registrar. Unfortunately, there is no validation mechanism that can be used to check whether the Memorandum is in compliant form before it is submitted, so taking care to follow the guidance is the only way to minimise the risk of rejection.

2.16.6 The Committee also issues guidance on what they like to see in a good Explanatory Memorandum. The latest version is July 2016, which can be found at the Committee’s website: http://www.parliament.uk/documents/lords-committees/Secondary-Legislation-Scrutiny- Committee/SLSC-Guidance-for-Departments-July-2016.pdf

The Guidance has not been agreed with the Government, but it would be prudent for departments to follow the guidance so far as possible, to minimise the risk of criticism by the Committee.

2.16.6 The Explanatory Memorandum should not repeat the content of the Explanatory Note. The value of the Explanatory Memorandum is to provide a plain English explanation of the effect of the legislation and why it is necessary. It is not aimed at lawyers, but to help people who know nothing about the law or the subject to gain an understanding quickly. In most Departments it is drafted by policy colleagues and cleared by lawyers.

2.16.7 As a brief summary, you should include material relating to the following:

a) the title of the instrument (and SI registration number, where appropriate),

b) the Department responsible,

c) a description in no more than 3 sentences of what the instrument does,

d) any information which the Department wishes to bring to the attention of the JCSI/SCSI. This includes information which would previously have been included in a voluntary memorandum to the JCSI/SCSI (in particular fee increases, an explanation if the instrument breaches the 21-day rule or JCSI guidance on commencement of affirmative instruments, or came into force before it was laid), an explanation of any novel or especially complex powers, and - where a choice is made to take an approach conflicting with a JCSI/SCSI

recommended one - a reasoned justification (addressing the previous JCSI comments) for the approach;

e) an explanation where the instrument corrects errors previously reported by the JCSI,

f) legislative background (in particular whether this is the first use of a power under an existing Act; any specific undertakings given to Parliament that relate to this instrument, and whether this instrument relates to, or paves the way for, any other instruments);

g) if the instrument implements EU legislation, an explanation in broad terms of the approach to transposition highlighting any difficult areas; and a brief scrutiny history,

h) a statement of the instrument’s extent and/or application (see paragraph 4.2.6),

i) a specific heading on the outcome of consultation, to provide an analysis of the outcome of any consultation,

j) where required, reference to the human rights statement (see paragraph 2.16.10 below);

k) information about guidance or other publicity material published;

l) a new section was introduced headed “regulating small business”, i.e. those businesses with up to 20 employees, to encourage where possible reducing the burden on small business.

2.16.8 The Committee’s guidance discusses additional matters considered important by the Committee which should also be included. For example material on the outcome of consultation, consolidation, guidance available to stakeholders and what monitoring and review is to be undertaken should now be included.

2.16.9 Do not forget to check that if “none” is inserted in the section on “Matters of Interest to the Joint Committee on Statutory Instruments or the Select Committee on Statutory instruments” the sentence “This memorandum contains information for the Joint Committee on Statutory Instruments or the Select Committee on Statutory Instruments” should be deleted.

Human Rights Statement

2.16.10 Departments are expected to provide Parliament with a statement of compatibility with Convention Rights similar to that required for Bills under section 19 of the Human Rights Act 1998 for all affirmative resolution instruments and for

negative resolution instruments which amend primary legislation26. Before the system of Explanatory Memoranda was introduced these statements were normally contained in a letter from the Minister to the Chairman of the JCSI. However the statement is now, where necessary, referred to in the Explanatory Memorandum, and the template contains a paragraph for this purpose. See also Human Rights Practice Note 1.7 on LION at https://lion.governmentlegal.gov.uk/the-law/legal- topics/human-rights/Practice%20Notes.aspx for the terms of the Government’s undertaking to Parliament relating to such statements.

Replacement EM

2.16.11 Where an EM needs to be corrected or revised, it can be re-laid before Parliament – see paragraph 2.9.8 of SIP.

Linked instruments

2.16.12 Where two or more instruments are linked, a single EM with the common background is appropriate to prevent duplication and ensure that the reader understands the links (see the introduction to the National Archives guidance on EMs and pages 5 and 6 of the Committee’s July 2016 guidance referred to above). Departments should lay the linked instruments on the same day with sequential numbering27. But if they are laid over a range of dates, they will each need a separate EM.

2.17 Prayer

2.17.1 Paragraphs 2.3.16 to 2.3.21 of SIP deal with a “prayer” against a negative resolution instrument (a resolution that an address be submitted to Her Majesty praying that an instrument be annulled). In the Commons debates on prayers are now usually referred to a delegated legislation committee.

2.18 JCSI

Scrutiny of SIs by the Parliamentary Joint Committee on Statutory Instruments

2.18.1 At the beginning of each Parliament, each House of Parliament appoints a Select Committee to scrutinise instruments jointly with the committee appointed for this purpose by the other House. This joint select scrutiny committee is the Joint Committee on Statutory Instruments (JCSI). The House of Commons members acting alone comprise a Commons Select Committee on Statutory Instruments to scrutinise instruments or drafts laid before the House of Commons only.

26 JCSI 17th Report of Session 2000-01, paragraph 5 (Plant Protection Products (Payments) Regulations 2001 (S.I. 2001/3898)), which treats an alteration of effect as counting as an amendment even if the alteration is not textual. 27 The National Archives guidance says the numbering should be sequential; the Committee guidance says that this should ‘ideally’ be so. 49

2.18.2 The role of the JCSI is summarised in paragraphs 5.2.1 to 5.2.7 of SIP, and its actual terms of reference can be seen in the relevant standing orders28. Note that even if an instrument is not subject to any Parliamentary procedure it still comes within the JCSI’s terms of reference if it is classified as general (and so the only instruments which do not come within the JCSI’s terms of reference are those which are classified as local and not subject to any Parliamentary procedure). Also any draft document which is subject to affirmative resolution, even if it is not a statutory instrument, comes within its terms of reference so it can look at draft Codes of Practice, statutory guidance etc..

2.18.3 Before reporting that the special attention of both Houses should be drawn to any instrument the JCSI will ask questions of the Minister’s Department. The tone in which they are normally asked (e.g. ‘explain’ rather than ‘please explain’) derives from the perception of Parliament that Ministers should account to Parliament as a matter of obligation rather than courtesy (the Standing Orders give the Committee power to ‘require’ a response). The questions are answered in the form of a memorandum, normally drafted by Departmental lawyers, which may be published by the JCSI in its reports to Parliament. If the JCSI is satisfied by the answers in the memorandum it will not draw the special attention of both Houses to the instrument unless it feels that the instrument requires the elucidation provided by the memorandum, in which case the committee will draw the attention of both Houses to the instrument on that ground alone (with the result that the memorandum is published as an annex to the Committee’s report). Counsel (legislation) who advise the JCSI may however write to the Department informally to make suggestions for the future handling of residual drafting or procedural concerns29.

2.18.4 If there is any doubt before the instrument is made about whether the JCSI might seek to report that the special attention of both Houses should be drawn to the instrument, consider whether information should be provided voluntarily to the JCSI. Until the introduction of the Explanatory Memorandum this information was provided in a voluntary memorandum. Now, where the instrument is subject to affirmative or negative resolution and an Explanatory Memorandum is provided this information is included in a section of the Explanatory Memorandum. A separate voluntary memorandum would now only be appropriate in cases where the instrument is not laid before Parliament. Information provided voluntarily would provide additional explanation of a point of foreseeable concern (such as, where relevant, the matters of particular interest to the JCSI listed in paragraph 5.2.16 of SIP).

2.18.5 The JCSI’s terms of reference involve them reporting that the special attention of the House should be drawn to an instrument or draft. If the JCSI does draw the special attention of both Houses to the instrument it is not thereby revoked nor is its validity affected. But in subsequent political debate, e.g. of a motion to annul the instrument, criticism of the instrument by the JCSI may be used to support political

28 See House of Commons Standing Order number 151 and House of Lords Standing Order number 73. 29 Such letters should be taken seriously however trivial the point of concern may appear to be. 50

opposition to it 30 . And in any subsequent legal proceedings relating to the instrument the arguments raised by the JCSI criticising the instrument may be used to support a legal challenge to it, e.g. if there is doubt that the instrument was within the powers of the enabling statute.

2.18.6 The request for a memorandum to answer questions asked by the JCSI is sent to the liaison officer in the Department, who will usually receive it by e-mail or by fax on a Wednesday following the JCSI’s meeting. Responses are usually required by noon the next Tuesday at the latest.

2.18.7 The text of the memorandum in response to such a request is the responsibility of the Departmental lawyers. But if the request raises an issue which is wholly or mainly one of policy, it is reasonable to rely on a draft provided by policy colleagues. All memoranda need to be cleared with policy colleagues and (depending on Departmental practice) with a senior legal manager.

Form and content of memoranda

2.18.8 The JCSI has certain requirements for the format of a memorandum. These are the points to note:

a) The heading is as follows:

“JOINT COMMITTEE ON STATUTORY INSTRUMENTS

[Title and No of SI or title of draft]

MEMORANDUM BY [NAME OF DEPARTMENT]”

b) If there is more than one memorandum on a particular instrument, then the second and third memoranda must say ‘SECOND’ or ‘THIRD’ memorandum, and so on. In the, now rare, case where there has been an initial, voluntary, memorandum to the JCSI, separate from the Explanatory Memorandum, don’t forget that that is the first, so the first requested memorandum will be the ‘SECOND’.

c) Always number the paragraphs.

d) The first paragraph should set out the question(s) asked by the JCSI. It is nearly always best to repeat each question word for word and not to paraphrase it.

e) The memorandum must always be dated else the JCSI will refer to it as an ‘incomplete’ memorandum.

30 The draft Employment Equality (Sexual Orientation) Regulations 2003 were approved despite criticism by the JCSI and indeed survived a subsequent challenge R v SoS(Trade and Industry) ex. p.Amicus [2004] EWHC 860 (Admin). 51

2.18.9 In addition to these rules, the following techniques have been found in the past to be effective:

a) Keep things as short as reasonably possible: at times justification cannot help but be elaborate31, but in any other case if you are going over to a second page of single spacing, the chances are you are digging a pit for yourself into which you will fall.

b) Keep references to other instruments down to a minimum. These are not helpful to the Department or the JCSI unless the JCSI really needs them to understand the point being made.

c) Avoid an unnecessarily adversarial tone - being persuasive involves demonstration of understanding of the Committee’s underlying concern and (if the Department thinks the concern is misplaced) giving detailed reasons why rather than argument by assertion.

d) If the JCSI clearly have a good point, own up to it. If it is a point of substance, then it is often best to put it right straightaway. If, however, it is a drafting point which does not carry a serious risk of misinterpretation, it may be enough to promise to put it right ‘at the earliest opportunity’.

Correction of errors – the Government’s position

2.18.10 All drafters should note the government’s commitment to the JCSI regarding the actions which Departments should take to correct drafting defects reported by the JCSI. The JCSI publishes an annual report every year in which it looks back at the instruments it has reported and asks Departments whether they have corrected the various instruments which they promised the JCSI that they would correct. The JCSI commented in its Second Special Report of 2007-08 (Departmental Returns 2007) and Second Special Report of 2008-09 (Departmental Returns) that it expects remedial action to be taken within a reasonable time.

2.18.11 The government’s December 2009 response to the JCSI Special Report of 2008- 09 has been published by on the UK Parliament website:

http://www.publications.parliament.uk/pa/jt200910/jtselect/jtstatin/16/16 .pdf.

The response sets out that:

• Drafting teams within departments take seriously the quality and accuracy of the secondary legislation they produce and its accessibility to stakeholders.

31 See the successful volunteered example in Appendix 3 to the JCSI 32nd Report of Session 2002-3 on the End-of- Life Vehicles Regulations 2003 (S.I. 2003/2635). 52

• Errors that affect the rights or obligations of citizens or businesses are corrected promptly, either by a correction slip, where possible, or by an amending instrument.

• Where errors do not have any real effect on rights or obligations and it is possible to remedy the error by a correction slip, departments will do so without delay.

• In addition, whenever practicable and proportionate, departments will prepare amending instruments in respect of other errors.

• When considering whether it is practicable and proportionate to prepare amending instruments, a number of issues need to be taken into account. Decisions to produce an amending instrument should be taken on a case-by- case basis. The decision should be based on the need to act proportionately to the error, and to balance the urgency of the error against competing demands on resources.

• Departments believe that, where an error does not affect the rights and obligations of citizens and businesses, they should in principle be able to decide to correct it when the instrument is next reviewed, rather than within a specific timeframe. Departments will need to take a risk-based view of the need for amendment.

• In response to requests from the Committee for memoranda, departments agree they should provide clear information about the action they propose to take (i.e. whether an amending instrument will be prepared or other action taken) and a realistic estimate of the timescale for the action, where they accept that an error has occurred.

• Where departments undertake to the JCSI to bring forward a correcting instrument, they will give appropriate priority to the project.

2.19 Other related documents

2.19.1 There are two other documents which sometimes have to be prepared in connection with an instrument and made available to Parliament: an impact assessment and/or a Transposition Note.

Impact Assessments

2.19.2 It is the Coalition Government’s policy that, in general, all UK Government interventions of a regulatory nature that affect the private sector, civil society organisations and public services should have an impact assessment (IA) assessing and presenting the likely costs and benefits (monetised as far as possible) and the associated risks of the proposal. This applies where the instrument gives rise to costs or savings for those concerned. These impact assessments are drafted by policy colleagues and economists rather than lawyers.

Guidance on when they are needed is referred to below, and your clients should consider this and let you know whether there is to be an IA. IAs are published by Departments and three copies must be sent to the House of Commons Library.

2.19.3 SIP covers IAs at paragraphs 3.23.19. to 3.23.30, which also identify relevant Government guidance documents and where to find them (including in relation to Tax Information and Impact Notices which are sometimes required instead of an IA). Paragraphs 4.3.21 to 4.3.23 of SIP explains how to download an up to date IA template and information about its installation and use.

2.19.4 In the case of R (on the application of Seabrook Warehousing Ltd and others) v Commissioners for HM Revenue and Customs [2010] EWCA Civ 140 the claimant sought to quash a statutory instrument on the grounds that the IA was flawed. The Court of Appeal did not do so because it held that the IA was a fair summary of all the major issues relevant to the decision making process. However the case is authority for challenging the validity of a statutory instrument by relying on the inadequacy of an IA. The court in Seabrook laid down some guidance: it held that the proper approach was to regard an IA as sufficient to sustain the validity of the decision to make the Regulations if the Departmental staff carried out a fair distillation process to reduce the details to the main considerations, including the salient facts which gave shape and substance to the matter. It was not necessary for every point of detail to be drawn to the attention of the minister or other maker32.

Transposition Notes

2.19.5 Transposition Notes (TNs) illustrate how the main elements of a directive have been, or will be, transposed into UK law.

2.19.6 While the provision of TNs applies to all secondary legislation (whether or not made under the European Communities Act 1972) which implements European directives, it is also good practice to provide a TN when handling all types of European and other international legislation. This includes regulations, decisions and judgments of the European Court of Justice.

2.19.7 The only occasion when legislation implementing a directive does not have to be accompanied by a TN is when it can be demonstrated clearly that the resources required to produce a TN are significantly greater than can be justified by the resulting added benefit to the reader. You must inform Parliament by including the following text in the Explanatory Note (or the nearest equivalent document):

“It is normal practice to make available to Parliament, alongside primary or secondary legislation giving effect to European Directives, a Transposition Note that sets out how the Government will transpose the main elements of

32 See also Ex Parte Sinclair Collins Ltd [2011] EWCA Civ 437, in which the Court of Appeal considered arguments put forward by the claimants, who were challenging the ban on the sale of tobacco from vending machines. Their challenge was in part based on the contents of an impact assessment, as well as on comments made by the Regulatory Policy Committee. Laws LJ contrasted the purpose of an impact assessment, which was to inform the policy-maker; with the role of the court, which was to judge the policy once made (see paragraph 57). 54

those Directives into UK law. However, in the present case a Transposition Note has not been made available. This is because, in the Government’s view, the resources required to produce a Transposition Note are significantly greater than can be justified by the resulting added benefit to the reader.”

2.19.8 Every TN will need to illustrate how all of the main elements of the directive(s) to be transposed, have been or will be transposed into UK law. The main elements of a directive are those that determine the directive’s fundamental objective(s) and major effect(s), have a significant impact on UK citizens or are politically important.

2.19.9 It is for officials to decide exactly how they fulfil this obligation and the exact form that an individual TN might take. The usual method is to set out this information in a table, listing the articles of the directive in one column and the UK legislation that transposes it in the corresponding row in the next column. However it is not compulsory to produce a table.

2.19.10 Guidance on Transposition Notes is given in Chapter 9 of DExEU’s guidance on Implementing European law, available on LION here:

https://lion.governmentlegal.gov.uk/the-law/legal- topics/european/Guidance%20on%20EU%20Law/Implementing%20European%2 0Law.aspx.

2.19.11 Drafters should also consider any need to provide transposition tables at EU level. While a specific Directive might still include a legal requirement for such tables, the general position was agreed in Declarations by the Commission, Council and European Parliament and the Member States in October 2011. This is a political (not legal) commitment to provide what are referred to as “explanatory documents” setting out the provisions of national law which transpose EU Directives. Where the requirement applies, a standard recital will be inserted into the relevant Directive. The declarations include the text of the standard recital. The Explanatory Document(s) should accompany the notification of transposition. No particular format is required for Explanatory Documents, hence domestic correlation tables prepared for Parliament should be acceptable for this purpose.

3 FORMALITIES OF STATUTORY INSTRUMENTS

3.1 Subject headings

3.1.1 Each statutory instrument has a subject heading that appears in large, bold capital letters. The subject heading indicates the area of law or of administration to which it belongs. Sometimes, it is appropriate to use more than one main subject heading, and sometimes it is appropriate to use a sub-heading underneath the main subject heading. Sometimes a territorial suffix must be added to the subject heading. Guidance on all this is given in section 3.8 of SIP. In selecting an appropriate subject heading, drafters will

55 usually need do no more than see what appeared in previous instruments of a similar kind. But if an existing heading does not seem appropriate (which will usually be where the powers are both new and address a topic which does not obviously fall within an established subject heading), SIP explains how to liaise with the SI Registrar about a new heading.

3.2 Title

Choosing a title

3.2.1 SIP deals with the title in section 9. The title is your choice, within reason. It should usually start with “The” and should always end with the calendar year in which the instrument is made (as opposed to the year in which it comes into force, if different). Keep it reasonably short. Make sure it describes the content. The wording in the enabling Act may help. Avoid too many sets of brackets. It is not necessary to mention every topic dealt with in the instrument - subsidiary matters can be covered under “etc”, as in “The Trade Marks (International Registrations Designating the European Community etc.) Regulations 2004”. There are other rules, and things to bear in mind, in choosing a title, and they are set out in SIP

Amending SIs 3.2.2 Amending instruments should normally be given the title of the principal SI (if there is only one) plus (Amendment) e.g. “The Employment Zones (Amendment) Regulations 2005”. In each calendar year the first amending set carries this sort of title. Subsequent amending instruments in the same calendar year are numbered, e.g. “The Employment Zones (Amendment) (No. 2) Regulations 2005”. Note that (with the exception of Commencement Orders as discussed below) this applies only if the title is in all other respects (apart from the sequential numbering) the same (i.e. it wouldn’t apply if the title were “… (Amendment and Consequential Provision) …”.

Commencement Regulations

3.2.3 Commencement regulations (formerly “commencement orders”) always includes the word “commencement” in their title. Where the commencement regulations contain savings and/or transitional provisions, the title should state this fact, e.g. “The Companies Act 1989 (Commencement No. 8 and Transitional and Saving Provisions) Regulations 2018”. For the conventions about numbering a series of commencement regulations - see Other drafting points - commencement regulations (paragraph 4.7.2).

Territorial extent/application

3.2.4 If an instrument is more limited in territorial extent or application than its enabling power, the title should generally include “(England)” or some other appropriate territorial indicator, unless the territorial extent or application of the instrument is clear from its contents. In particular the territorial indicator should be included in amendments of a limited extent or application where the principal instrument is not limited, e.g. an instrument amending, in relation to England only, the Local 56

Education Authority (Post-Compulsory Education) Awards Regulations 1999 would be “The Local Education Authority (Post-Compulsory Education) Awards (Amendment) (England) Regulations 2005”.

Changing year

3.2.5 If Parliament or the House of Commons approves a draft of an instrument containing a particular year in its title, but it is not practicable for the instrument to be made until the following year, the instrument will nevertheless be made with the new year in its title without the approval being thereby invalidated. Similarly where the instrument inserts references to itself in Acts and other instruments, those too can be altered as a matter of printing.

3.3 Dates: making, laying and coming into force

3.3.1 Below the title there are italic headings which, in a typical statutory instrument laid before Parliament, give the following information:

a) the date on which it was made;

b) the date on which it was laid before Parliament or the House of Commons; and

c) the date on which it came or will come into force.

See also section 3.10 of SIP.

What dates to include

3.3.2 Different forms or combinations of italic headings will be required for instruments which do not have to be laid, for those which are laid in draft, and for those which have no commencement provision or an unusual commencement provision, and sometimes, a time may need to be given as well as a date. See section 3.10 of SIP for different examples.

Leaving dates blank

3.3.3 When drafting the instrument, the date of coming into force should be completed before signature, but the dates of making and laying should be left blank and inserted later. In the case of an affirmative resolution instrument which is laid before Parliament in draft the date of making is naturally left blank and the date of coming into force may be left blank depending on how the coming into force date is expressed (see paragraph 4.2.4(b)).

3.4 Table of Contents

3.4.1 This is often included in long instruments (see SIP paragraphs 3.10.8 and 3.10.9). It goes before the preamble. A fairly frequent error on which the JCSI have reported 57

on several occasions is to put it after the preamble, although the current version of the template should prompt you if you attempt to put it is the wrong place.

3.5 Preamble

3.5.1 Below the headings (or Table of Contents, if any) the instrument proper starts with the recitals of the enabling powers and of any other matters upon which its validity depends, and with the words of enactment. Matters relating to the content of the preamble are dealt with in Section 4.

3.6 Operative part

Initial letters

3.6.1 A reference to a complete instrument should use capital initials - e.g. “these Regulations”, “that Order”; whereas a reference to an individual provision of an instrument should use lower case - e.g. “regulation 1”, “article 2”. However larger units such as Part or Schedule have an initial capital. Note that “Article” has a capital when it is a subdivision of an EU instrument.

Divisions and sub-divisions of SIs

3.6.2 The terms used for the divisions and sub-divisions of statutory instruments are shown in the Table in paragraph 1.4.30 of SIP. The main divisions (articles, regulations, rules or the paragraphs of schedules) are numbered.

3.6.3 The conventional form of labelling subdivisions of an article/regulation is number, number in brackets, lower case letter, small Roman numeral; so one could have “regulation 3(2)(b)(ii)”. So you would refer to:

a) regulation 3,

b) paragraph (2),

c) sub-paragraph (b),

d) paragraph (ii).

The convention with numbering and lettering is that (1)/(2) etc are used for unindented divisions, (a)/(b) etc for the first indented division, and (i)/(ii) etc for the next indented division. Note that if a regulation (for example) consists purely of a single sentence with indents, each primary indent is a paragraph. So in that case – on the basis of the previous example without the (2) – you would refer to: a) regulation 3,

b) paragraph (b)

c) sub-paragraph (ii).

3.6.4 A further subdivision can be made using double letters, e.g. “regulation 3(2)(b)(ii)(cc)” which would be a sub-paragraph in the first example and a paragraph in the second. However if you get down to this fine a subdivision consider whether the regulation has got too complicated and needs recasting.

3.6.5 A trap for the unwary is that re-arrangement of material within (say) a regulation can turn the text of a paragraph into that of a sub-paragraph or vice versa. In checking cross references remember to keep an eye on that as well as correct numbering and lettering.

3.6.6 You should also be aware that a provision identified by an Arabic numeral should, unless in a Schedule, always be a complete sentence; and that a provision identified by lower case letter or Roman numeral should never be a complete sentence.

Cross headings and parts

3.6.7 You may use descriptive cross-headings, which should be in bold, non- italic type, starting flush with the left edge of the text. Long instruments may also be divided into parts, which are numbered with Arabic numbers, and have headings in capitals, e.g.:

“PART 2 SCHOOLS’ BUDGET SHARES: MAIN PROVISIONS Determination of budget shares 3. …..”

3.7 Signature

3.7.1 In most Departments any instrument which comes before the JCSI is signed by a Minister. This will usually be the junior Minister responsible for the instrument’s subject matter. Instruments sometimes require to be made by more than one Minister or Department (who may be acting jointly or severally), or require the confirmation, approval or consent of some further Minister or Department. In such cases the instrument should be signed by or on behalf of all such Ministers or Departments33. The date of signing should be added against each signature, even though it repeats a date already inserted. Where there is more than one signature, the instrument is taken to be made on the last date of signing, and this should be entered as the ‘made’ date in the italic heading below the title of the instrument (see paragraph 3.3.2 above). See also SIP section 3.20.

3.7.2 For instruments where the enabling power is vested in ‘the Secretary of State’ see the discussion of that term in Annex 1. Note that any superfluous signature invites potential JCSI/SCSI criticism as causing confusion as to who the makers were and when it was made. Furthermore, it could at worst cast doubt on validity. In the unreported first instance judgment in 1983 in the case of Chris International Foods v Secretary of State it was held that the exercise by one Minister of a power simply on the instructions of another Minister was not a valid exercise of the power.

Signature of Orders in Council

3.7.3 After an Order in Council has been made it is signed by the Clerk of the Privy Council. Since 1977 it has been the practice to print the words ‘Clerk of the Privy Council’ below the signature, and these words should be included in draft Orders.

Form of signature

3.7.4 The correct formula depends on who is signing. For example:

“Secretary of State for Environment, Food and Rural Affairs” “Minister of State, Department for Environment, Food and Rural

33 NB the agreement of the National Assembly for Wales does not need to be indicated by a signature but should be recited in the preamble, like the approval of Parliament on affirmative resolution orders.

Affairs” “Parliamentary Under Secretary of State, Department for Environment, Food and Rural Affairs”

3.7.5 Where an instrument is local and not laid before Parliament so that it does not come before the JCSI it is often signed by an official. If an official is signing the preferred formula is title of post followed by “for and on behalf of the Secretary of State for […]”.

3.7.6 Where a Minister in charge of a Department has been very recently appointed check whether the appointment has formally taken effect: see the extract from a letter of 6 November 1979 “Appointment of Ministers” the Secondary legislation site on LION:

https://lion.governmentlegal.gov.uk/the-law/legal-topics/secondary- legislation/useful-papers.aspx?page=2&dateFilter=desc&itemsPerPage=10.

3.8 Schedules

3.8.1 Schedules come after the signature. Some matters relating to Schedules are dealt with in section 4.5.

3.8.2 For particularly long Schedules a separate Table of Contents may be produced. Provision is made for this in the SI template.

3.9 Explanatory Note

3.9.1 SIP deals with Explanatory Notes in section 3.23. The Explanatory Note is headed:

“EXPLANATORY NOTE (This note is not part of the [Order][Regulations][Rules])”

Purpose of the Explanatory Note

3.9.2 The Explanatory Note should give a short, clear, comprehensive statement of what the instrument does. The length of the note should if possible be proportionate to the length of the instrument and rarely longer than a page. The note should help readers decide whether they need to refer to the instrument. It should not try to explain or justify the policy or offer a debatable construction of the law.

What to include

3.9.3 You should include the following where relevant:

a) reference to other legislation where the instrument cannot be understood unless read together with that other legislation34,

b) a statement that the instrument amends or consolidates another instrument (this should appear in the first sentence where this is the main purpose of the instrument),

c) a statement that an earlier instrument is revoked and replaced,

d) increases in fees or charges, unless the previous figure can be seen from the text of the instrument itself,

e) a statement that the instrument implements an EU obligation, or makes provision consistent with EU legislation (e.g. enabling EU funding to be obtained), and giving details of the obligation or legislation,

f) if the instrument amends a prior instrument which implemented an EU obligation, the Explanatory Note should mention the implementation35,

g) where an instrument partly implements a directive, the remainder being already covered by national measures (whether legislation or common law), you should outline the existing measures in the Note,

h) where an instrument implements an EU obligation citing section 2(2) of the European Communities Act and contains other provisions which do not implement an EU obligation the provisions which do not implement the EU obligation should be identified (see SIP paragraph 3.25.38),

i) where there is a Transposition Note (EU implementation only), its existence and where it can be found; if a decision has been taken not to produce a note (see paragraph 2.19.6), the note must say so,

j) where there is an impact assessment (IA) the note should say at the end “A full impact assessment of the effect that this instrument will have on the costs of business, the voluntary sector and the public sector is available from...” - where an IA is not required then the note should include the statement: “A full impact assessment has not been produced for this instrument as no, or no significant, impact on the private, voluntary or public sectors is foreseen”; there are occasions where use of those exact formulations will not be accurate, in which case they should be adapted accordingly (e.g. where the instrument is one of a group of instruments covered by a single IA),

k) where the instrument has retrospective effect, the statutory authority for this36,

34 See also JCSI 8th report for 2003/4 paragraph 3. 35 See the JCSI’s 28th Report of Session 1994/95, paragraph 4.

36 See also the JCSI’s 7th Report of Session 2005/6, paragraphs 1 and 4. 62

l) details of where outside publications referred to (such as maps and plans) can be obtained,

m) where a measure is required to be notified to the Commission under the Technical Standards Directive, the fact that it has been notified,

n) any other point relevant to the validity of the instrument which is not covered in the preamble.

Particular requirements apply to Command Papers which are referred to, according to whether they are still in print – see SIP section 3.15.

Drafting the Explanatory Note

3.9.4 Professional publications may quote the Explanatory Note verbatim for the benefit of their readers. It will also assist you if you have to spell out in plain words what you are trying to do. For these reasons it can be helpful to prepare the Explanatory Note reasonably early in the drafting process, although if this is done the drafter must remember to review it.

3.9.5 Try to look objectively at what you have put. Consider whether an MP glancing at the note would gather the gist of the effect of the instrument in law. Look at whether there are statements which may cause alarm – if so, is the phrasing accurate and complete? If you need to say, for example, “Regulation 3 removes rights of appeal to the tribunal.” it may help to say, “as there is a right of appeal elsewhere under section...”.

3.9.6 The standard terms ‘repeal’ of an Act and ‘revocation’ of an instrument should be used. It is good practice to refer to the particular article/regulation which has the effect described in the Explanatory Note, e.g.: “The Order provides for the recovery of grants where there is a breach of the rules (article 15).” Where it is appropriate to mention legislation not referred to in the instrument the citation should be given.

3.9.7 Check and re-check consistency between the instrument and the Explanatory Note, particularly cross references to provision numbering. It is easy for these to come adrift, especially when there are last minute changes. The JCSI can be expected to report an instrument if there is inconsistency. Check that the Explanatory Note in the final draft or proof follows the main text where possible and is not put on a separate page with blank space in between. Terms used should be the same as in the instrument or the enabling Act.

3.9.8 What to leave out:

a) Complex detail and technical terms should be avoided.

b) Latin should not be used unless it is the only way of expressing a concept – e.g. bona vacantia. 63

c) Vague or indefinite expressions should be avoided as should phrases beginning “The purpose/object/effect of this Order is.....”.

d) Usually the power to make the instrument should not be mentioned as this is in the preamble. Note however that the specific enabling provision for a provision can be relevant to the application of section 11 of the Interpretation Act (construction of subordinate legislation). If the preamble is not specific on the point, an indication, where there are multiple powers (particularly from different Acts), of what provision depends on which may be useful as a potential aid to interpretation.

e) The JCSI have indicated informally that it dislikes Explanatory Notes which say ‘Regulation 1 provides for citation, commencement and interpretation’ as this states the obvious, so you should probably avoid doing this except in so far as it is needed - for example, to explain the meaning of a defined term.

Explanatory Notes for commencement regulations

3.9.9 If commencement regulations bring part only of an Act into force the Explanatory Note should state which part; for example:

a) These Regulations bring into force on ...... 20.. all the provisions of the ...... Act 20.. excepting section 3 (which relates to ...) and section 7 (which relates to ....).

b) These Regulations bring into force on ..... 20.. those provisions of the ...... Act 20.. which are not already in force.

Notes as to earlier commencement regulations or orders

3.9.10 Where an Act is brought into force by more than set of commencement regulations the second and subsequent set of commencement regulations should have a note, placed after the Explanatory Note, listing the provisions brought into force by earlier commencement regulations (see SIP section 3.24). There is a button for this on the SI template.

4 DRAFTING

4.1 Preamble

Enabling powers

4.1.1 The preamble should recite every power, whether in primary or secondary legislation, from or through which the instrument derives its validity. You should therefore cite all the powers required to make clear:

a) what may or must be done,

b) by what means something is to be done,

c) who is empowered to do it.

Preambles are covered in section 3.11 of SIP.

Identifying the Minister

4.1.2 If powers are conferred on “the Secretary of State”, the preamble can either use the term “Secretary of State” or specify the particular Secretary of State, e.g. “the Secretary of State for Transport - (note the definition of “the Secretary of State” in the Interpretation Act 1978). The former is often used where the subject matter cuts across the work of more than one Government Department.

4.1.3 If a power is expressed in the enabling Act to be exercisable by a particular Minister, but has become exercisable by another Minister as a result, for example, of a transfer of functions order or a series of them, the full derivation of the Minister’s powers should be shown, e.g.: The Secretary of State for Transport in whom the powers conferred by section ..... of the .... Act 20.. (a) are now vested (b) ...... makes the following Regulations in exercise of those powers.

Footnote (a) will give the citation of the enabling Act, footnote (b) will refer to the transfer of functions order or orders or other instruments which have vested the enabling power in the Minister.

4.1.4 A further complication arises where an instrument is made under more than one power, each exercisable by a different, specified person, e.g. where an instrument is to be made by the Secretary of State for Work and Pensions in relation to benefits and by the Commissioners of Her Majesty’s Revenue and Customs in relation to tax credits. In this case you will need to take care to specify the correct powers in relation to the correct person. Similarly where consent, approval etc is required in relation to some but not all of the powers, it should be clear which powers, or provisions, are being consent to or approved etc.

Designation Orders 65

4.1.5 Where a Minister is exercising the power to make Regulations under section 2(2) of the European Communities Act 1972, the Act requires that he or she is designated by Order in Council in relation to the matter that is to be the subject of the Regulations. The designation must be mentioned in the preamble to the Regulations and the Order cited in a footnote. Further information and advice and a link to the designation order database is available on the European site on LION:

https://lion.governmentlegal.gov.uk/the-law/legal-topics/european/designation- orders.aspx.

4.1.6 It is always worthwhile to look at the text as well as the Schedule, as sometimes – for example – there is a provision that a power vested jointly in two Ministers can also be exercised by either of them or with the consent of the other.

Identifying the power

4.1.7 As well as the main enabling power, the instrument must also cite any power which is relied on to make “incidental, supplementary or transitional provisions” or to make different provision for different purposes or similar powers. A provision which specifies whether the power is to be exercised by the making of rules, regulations, an order or some other kind of subordinate legislation should be cited. However it is incorrect to mention provisions which simply specify the Parliamentary procedure to be used or say that the powers are exercisable by Statutory Instrument. You should specify the relevant section, subsection and, when necessary, paragraph (see SIP paragraph 3.11.11).

4.1.8 Where the instrument is an order which is amending or revoking an order and is made under powers contained in an Act passed before 1 January 1979 (when the Interpretation Act 1978 came into force) the power to amend or revoke should be cited. See also Annex 1, paragraph 22.

4.1.9 In the past it has sometimes been the practice to include a sweeping up phrase on the lines of “and all other powers enabling him in that behalf” in the preamble. The advice in SIP paragraph 3.11.11 is that this phrase (or something similar) should be used only in very limited circumstances, such as where reliance is placed on prerogative powers37. Such a phrase remains appropriate in the very rare cases where an instrument is made under inter-dependent statutory and prerogative powers. (SIP paragraph 3.11.13). If a gender neutral modern equivalent was considered appropriate, an alternative might be “and all other enabling powers relevant to the purposes of [these Regulations]”.

37 The Court of Appeal considered the effect of such wording in Vibixa v Komori UK [2006] EWCA Civ 536. It held that there was no presumption that such wording had any legal effect. Nevertheless, it might be interpreted as invoking a power not otherwise cited in the preamble (and thus having legal effect) where, for instance the validity of the instrument or its compatibility with Community law or the ECHR depended on the use of the power. The statement in Craies on Legislation (8th ed, 2004 pp 112- 113) that “the preamble has no legal effect” was accordingly disapproved. Although it accepted that the use of such wording would be appropriate where prerogative powers were being invoked, the Court made it clear that “it would not wish to encourage the use of general enabling powers in lieu of specific references to specific statutory enabling powers.” 66

4.1.10 Where instruments are made under multiple powers, identification of which provision depends on what can be helpful in relation to the application of section 11 of the Interpretation Act 1978 (see Annex 1).

Definitions

4.1.11 Powers may be conferred using terms defined elsewhere in the enabling Act. For example, a provision may confer a power on “the Authority” to “prescribe” certain matters. In such a case the provisions defining those terms need also to be cited. So, in this example, the citation (or a footnote) needs to indicate:

a) the provision which defines the expression “the Authority”; and

b) the provision which defines “prescribed” or “regulations”.

Definitions and powers that are long-established or general

4.1.12 It is not necessary to give an explanation of terms defined in the Interpretation Act 1978 (such as “Secretary of State”) or of other terms, defined outside the enabling Act, which are long-established or form a general part of the law. The same goes for powers as well as definitions. To give three examples, it is not necessary to cite: a) section 14A of the Interpretation Act when relying on it to include sunset or review provisions in an instrument;

b) section 105 of the Deregulation Act when relying on it to, for example exercise an order-making power by means of regulations;

c) the authority, contained in the Treasury Instruments (Signature) Act 1849, by which two of the Commissioners of Her Majesty’s Treasury may sign instruments.

Complex powers

4.1.13 Where an instrument is made in exercise of enabling powers which are exceptionally numerous or complex, it is possible to set them out in a Schedule and to limit the citation of powers in the preamble, e.g.:

“The Secretary of State makes the following Regulations, in exercise of the powers conferred upon her by the enactments specified in Schedule 1 to this instrument.”

Fulfilment of conditions

4.1.14 In addition to the enabling powers, the preamble should deal with the fulfilment of any condition required to be fulfilled either by the enabling Act or otherwise38 before the instrument can validly be made; e.g.:

a) that necessary notices have been published,

b) that a draft of the instrument has been laid before Parliament/the House of Commons and has been approved by resolution of each House of

Parliament/the House of Commons.

c) that a specified period has expired, and that neither House has resolved that the instrument be not made,

d) that the Minister is satisfied as to certain matters,

e) that necessary consultations have taken place,

f) that the approval of Treasury has been given,

g) that the Minister has complied with a requirement to receive objections and to hold an inquiry,

h) that the Administrative Justice and Tribunals Council has been consulted pursuant to Schedule 7 to the Tribunals, Courts and Enforcement Act 2007.

4.1.15 The use of ‘whereas’ at the start of preambles, which drafters may encounter in old precedents, is not now recommended.

4.1.16 It may occasionally be necessary to recite that certain pre-conditions contained in an EU instrument have been fulfilled, e.g. for food instruments, there has been open and transparent public consultation as required by Article 9 of Regulation (EC) No 178/2002 of the European Parliament and of the Council laying down the general principles and requirements of food law, establishing the European Food Safety Authority and laying down procedures in matters of food safety.

Ambulatory references

4.1.17 If you are using paragraph 1A of Schedule 2 to the European Communities Act 1972 in order to make ambulatory references to European legislation, the preamble must contain a reference to this power (in addition to the body text of the instrument dealing with the point). Note that an ambulatory reference to a EU instrument will usually take effect when the amending EU instrument comes into force, even if the instrument has a later deadline for transposition. This means that the EU

38 For a discussion as to whether some matters in an EU Regulation are preconditions see the exchange of correspondence “When to include EU procedural requirements” in Departments/relevant topics/vires in the LION secondary legislation topic site. 68

instrument will be given effect in the UK before the transposition deadline, which is regarded as ‘gold-plating’: see section 1.7.2. For further detailed guidance on the use of ambulatory references, see section 8.3 of DExEU’s guidance on Implementing European law, available on LION here:

https://lion.governmentlegal.gov.uk/the-law/legal- topics/european/Guidance%20on%20EU%20Law/Implementing%20European%2 0Law.aspx.

4.2 Commencement and extent/application

Commencement

4.2.1 Commencement dates cause a disproportionate number of difficulties. This is often because they are subject to last minute changes. See generally SIP paragraphs 3.12.6 to 3.12.25. Commencement should be on a specified date or a date which can be determined by reference to a future event, for example the coming into force of another statutory provision or the activation of obligations under a treaty39. If there is no commencement date in the instrument it comes into force on being made.

4.2.2 Commencement may be on one date for the whole instrument, or different dates for different provisions of the instrument. In the latter case and if the commencement provisions are complicated, a table in a Schedule may be a helpful way of displaying the information; also, check carefully for consequential effects - it will not be possible to use the formula “the date on which these Regulations come into force” for example, and the regulation dealing with citation, commencement and interpretation should come into force on the earliest date40.

4.2.3 Sometimes an issue may arise as to how far the instrument may provide for commencement decisions to be taken after the instrument is made and to have effect without the need for a further instrument. The SCSI considered this was dependent on the width of any power to sub-delegate41. In that case regulations were expressed to come into force “on such day or days as may be appointed by the Commissioners of [HMRC] and specified in a notice in the London, Edinburgh and Belfast Gazettes”. Note, this is different from the situation covered in paragraph 4.2.1 above where the instrument identifies the commencement date by reference to a future event which has substantive relevant significance in the real world. Under general principles, that would not usually amount to impermissible sub- delegation of the commencement power.

39 For an example of commencement by reference to future acts which trigger international obligations, see S.I. 2017/189 (C. 17), article 3(1) (although that was a commencement order, it illustrates an approach that would in principle be valid in an SI’s own commencement provision). Where commencement is expressed by reference to a future event, consider whether its nature is such as to require the SI to mandate publicity to be given to its occurrence, so that those affected by the SI will know what the actual commencement date is. For example, in S.I. 2017/189 already mentioned, article 3(3) required the Secretary of State to give notice of that in the London, Edinburgh and Belfast Gazettes. 40 See the JCSI’s 2nd Report of Session 2000/01. 41 See the SCSI’s 5th Report of Session 2005-6, heading “Instruments not Reported” and Appendix 2, in relation to S.I. 2006/570.

4.2.4 Points to bear in mind are:

a) Take care that the date ties in with the date on which the enabling power comes into force. This is obvious but can be overlooked if the instrument is part of a package involving a commencement order and the instructions for that are constantly changing.

b) If the instrument is a draft subject to affirmative resolution ensure your policy colleagues know that any date specified in the draft as laid must be without doubt sufficient to allow for the Parliamentary procedures; otherwise rely on a formula such as ‘x days after the day on which it is made’. Usually the interval should be at least sufficient to allow for printed copies to be put on sale to the public. c) An instrument will come into force at the beginning of the day which is the date stated for commencement (sections 4 and 23(1) of the Interpretation Act 1978), so an instrument made on 1 March to come into force on 1 March is automatically retrospective, as an instrument which is expressed to come into force on the day it is laid before Parliament will come into force before it is laid. In such a case there is a need to notify the Speakers of the House of Lords and the House of Commons (see paragraph 2.15.7).

d) Where the coming into force of an instrument is so urgent that it must come into force on the same day that it is made there are two alternatives. Either the instrument can come into force immediately it is made in which case the JCSI suggest43 that a commencement provision be omitted from the instrument. Alternatively the instrument can be expressed to come into force at a specific time of the day on which it is made. There will of course still be a coming into force date in the italic note part before the preamble. If the first alternative is adopted the coming into force date will simply be the date on which the instrument is made; if the second alternative is adopted the coming into force date will also specify the time of coming into force.

e) An instrument must never be submitted for signature with the commencement date left blank.

4.2.5 Where one instrument cross-refers to another the referring instrument should not be made before the instrument referred to is made and should not come into force before the instrument referred to comes into force; if they cross-refer to each other they must both be made on the 42 same day, and must both come into force on the same day .

42 See the JCSI’s 30th Report of Session 2005-6, paragraph 3.1-3.6 on S.I. 2006/1260 70

Extent/application

4.2.6 See generally paragraphs 13 to 24 of “Devolution and SI Drafting Guidance” (May 2008), and other information relating to devolution, available on the Devolution site on LION here:

https://lion.governmentlegal.gov.uk/the-law/legal-topics/devolution/guidance-and- materials.aspx.

4.2.7 Where an instrument has a more limited territorial extent or application than its enabling power a provision will be needed to limit the extent or application of the instrument. The view is now generally taken that “extend” should only be used where differentiating between England and Wales combined, Scotland, and Northern Ireland i.e. between territories which have their own legal systems. However it may also be necessary, for example when differentiating between England and Wales to provide that the instrument has a more limited application than its enabling power. This could be phrased as for example “These Regulations apply to [local authorities] in England”, or, more generally, “These Regulations apply in relation to England”. However an express provision of this nature may not be necessary if it is clear the instrument only applies to England, e.g. an order which relates to a specific road in England.

4.2.8 It has been suggested that the rationale for distinguishing between extent (as interpreted above) and application is based on the evidence rule that a court regards an external law as something that needs to be proved as a matter of fact. Thus, for a court operating in England and Wales combined, law that is purely law of Scotland (for example) is an external law but law applying purely in Welsh territory is not43.

4.3 Interpretation

Purpose

4.3.1 The purpose of an interpretation provision is to define terms. Where there are definitions which apply to more than one provision of the instrument, it is convenient to list them at the outset in an interpretation provision.

4.3.2 You may however find that as a matter of drafting it is easiest to introduce and define a concept in a substantive regulation. Regulation Y might introduce and define the concept and if that concept is used elsewhere in the regulations the interpretation provision would say “X” has the meaning given in regulation “Y”. Also where a definition is long or complex the interpretation provision could again cross refer to a later provision e.g. “X” has the meaning given in regulation “Y”

Definitions - things to do and not to do

43 See the JCSI’s 6th Report of Session 2005-6, paragraph 5. 71

4.3.3 Definitions have proved a happy hunting ground for the JCSI in the past. Here are some of the points to watch out for:

Things to do:

a) Generally, list definitions in alphabetical order. If, alternately, you are listing them in conceptual order (e.g. where definitions build on other ones) it makes sense to signpost the fact by identifying each definition as a separate subdivision of the provision in which it appears. Alphabetical order does not apply to references to legislation, which should be placed at the beginning of a definitions paragraph e.g. ‘the Act’ or ‘the 2002 Regulations’; Acts come before instruments and the earliest comes first.

b) Ensure that the phrase defined could if necessary be put in the text in place of the definition (unless the definition is to solve a borderline problem - see (d) below).

c) When implementing a directive it is acceptable to say a term has the same meaning as in the directive44. The JCSI have however criticised a provision to the effect that “these Regulations are to have effect for the purpose of making such provision as is necessary to comply with directive and are to be construed accordingly”‘ as a superfluous restatement of an interpretation rule. So anyone wishing to include such a provision in particular circumstances would need to justify what doubt would be overcome by its inclusion.

d) Use an indication that a term “means” X if X is exhaustive and “includes” X or “does not include X” to solve a borderline problem.

Things not to do:

a) Never define an expression that is not used in the instrument; check for redundant definitions before finalising the draft. This can be done by using the “edit” then “find” functions in Word.

b) Never use ‘unless the context otherwise requires’ unless there is at least one definition where the context does otherwise require; this has been reported by 45 the JCSI on many occasions .

c) Don’t put in definitions rendered superfluous by other legislation. The JCSI is critical of definitions covering material already covered in the Interpretation Act46. In addition, expressions in the enabling legislation carry through the same meaning without the need to say anything unless the contrary intention appears (section 11 Interpretation Act 1978). But beware of expressions whose definitions

44 JCSI 14th Report 1997/98 paragraph 10. 45 See e.g. JCSI 21st Report 1995/96, paragraph 4, and 10th Report 2002/2, paragraph 13. 46 For example “month”, see the JCSI 1st report for 2005/6 paragraph 3. 72

are confined to a Part of the Act other than the one where the powers you are exercising are conferred. If you repeat the definition for “convenience” or “clarity” you risk the JCSI taking you to task for it47. If you feel the reader needs some help you may be able to justify explaining in a footnote that an important term which is used in the instrument is defined in the enabling legislation.

d) Don’t dress up a substantive obligation as a definition (e.g. giving an undertaking as part of the definition, for example “eligible person” means a person who satisfies conditions a, b, and c and who undertakes not to use his aircraft for purposes d or e’; here the undertaking should be in a substantive provision50.

e) Don’t confuse by giving a word or phrase a meaning it cannot sensibly bear (unless it reflects the primary legislation under which the instrument is made) For example “horse” includes “pony” is fine but “horse” includes “sheep” isn’t.

f) Don’t define by exception without careful thought e.g. defining works as “all works except X” if the boundary of what “works” means is not clear.

g) Don’t rely in the body of the instrument on definitions in the preamble as it raises the possible criticism that the preamble should not be considered part of the Regulations, Order etc. (Although see Vibixa v Komori, cited in footnote 39). It is in any event better practice not to do so.

h) Don’t without careful thought define a term in the interpretation provision if it is only used once outside the definition itself. Before doing so ask yourself: is this necessary or helpful? There is of course no harm in including a definition of a term only used once in the provision where it is used.

i) Don’t include an explanation as to the meaning of “regulation”, “paragraph” etc (for example “any reference to a numbered regulation is a reference to a regulation bearing that number”) where these mean regulations etc of the instrument itself unless there would otherwise be an ambiguity; the JCSI regards this as superfluous.

j) Don’t define by cross referring to other legislation without careful consideration as to whether there is a reasonably straightforward way of achieving the same effect by writing out the material in full. Be prepared to justify any referential drafting to the JCSI. The JCSI have frequently reported instruments for unnecessary referential drafting48.

47 See e.g. the JCSI’s 1st Report of Session 2000-01, paragraph 10. 50 See also the JCSI’s 33rd Report of Session 2001-2, paragraph 9. 48 See, for example, the 6th Report of Session 2002/3, paragraphs 5 and 6 and the 14th Report of Session 2004-5, paragraphs 1.4 and 1.5. 73

4.4 Operative provisions

Order and structure

4.4.1 Several general points about drafting have been made in section 2. There is no single correct method of drafting. Precedents may help you – either in the area in which you are working or instruments which achieve a similar objective but in another field. Be aware that the JCSI is looking for clarity of drafting and this may mean that past provisions will not be regarded as sufficiently clear today. Also be aware that if there is an unreported error in the precedent this will not prevent the JCSI from reporting your instrument if you repeat the error.

Modernising drafting

4.4.2 In looking at old precedents, bear in mind that a more modern approach to drafting now prevails. For example, old-fashioned language, overly-elaborate phrasing and long complex sentences should be avoided where possible, though they were common, though decreasingly so, even into the early years of the present millennium. . So, for example, avoid antiquated expressions such as “the aforementioned”, “the said”, “hereto” or “hereinafter” unless there is no precise alternative. Consider also for example whether “despite” or “even though” is a suitable alternative to “notwithstanding”.

4.4.3 Also consider alternative styles. Most people would prefer “In these Regulations, a person has special needs if...” to “For the purposes of these Regulations a person shall be treated as having special needs if....”.

Drafting - things to do and not to do

4.4.4 Below are some suggestions. As these are general propositions, some may turn out to be mutually exclusive in dealing with particular problems; in deciding which has priority, remember that your primary aim is to avoid ambiguity.

Things to do:

a) Use plain English (no foreign words for which there is an English equivalent).

b) Use simple words and expressions.

c) Use short sentences – more than three ideas in a sentence is probably too many49.

d) Keep the main subject and verb together.

49 See for example the JCSI’s 14th Report for Session 2003/4. 74

e) Make sure provisions are operative, i.e. create obligations or rights; matters intended to be helpful or explanatory may have a place elsewhere or in other Departmental documents, e.g., an explanation that a measure is as a result of EU legislation is a matter for the Explanatory Note, not the body of the instrument50.

f) Keep exceptions and conditions until the main subject is introduced e.g. “An applicant is eligible for X if (a)...... and (b)……….” is easier to read than “An applicant who is (a)...... and (b)...... is eligible for X.”

g) Say who does what, and so use the active rather than the passive voice, e.g. X must do Y, rather than Y must be done by X (unless the passive is used to make the phrase gender neutral and this does not make it unclear on whom an obligation falls).

h) In general, use the singular51 (although use of the plural can sometimes be a helpful technique in relation to gender-neutral drafting).

i) Impose obligations on persons or bodies who can be held to account for failure to comply with them (A must do B); if you say e.g. “the licence must accompany the document” the JCSI will criticise as it is unclear on whom the liability is imposed55.

j) Use the same expression where you intend the same meaning52.

k) Follow the wording of the enabling Act and take advantage of section 11 of the Interpretation Act.

l) Be careful of tricky words and phrases (see 4.7 “Other drafting points - words and phrases”).

m) Check references to measurements are consistent with EC metrication rules on which DTI guidance was issued in September 1995 (see the letter of 17th September 2003 on Central Departments/primary guidance in the LION Secondary Legislation topic site). Click below for link to the relevant LION page:

http://www.knowledgenetwork.gsi.gov.uk/lion2/areapres.nsf/706 01a68a73227d480256e8c004bca59/d81e0f85bd0554fa8025709 a005f4868?OpenDocument.

n) Follow concepts through; if persons are appointed because they “appear” to satisfy criteria then their disqualification from office should be because they no

50 See the JCSI’s 32nd Report for Session 1997/98, paragraph 3. 51 Section 6(c) of the Interpretation Act 1978 provides that, unless the contrary intention appears, words in the singular include the plural and words in the plural include the singular. See the JCSI’s 19th Report of Session 1989/90, paragraph 5. 52 See the JCSI’s 16th Report of Session 2005-6, in relation to S.I. 2005/3320. 75

longer “appear” to satisfy the criteria, not because they do not53. If you state a requirement and prescribe a form, make sure the requirement is on the form54.

o) Make sure qualifying phrases work e.g. “In accordance with provision Y, X must invest the sum received” is preferable to “X must invest the sum received in accordance with provision Y” as the latter may be construed wrongly55.

p) Make sure Schedules are introduced sufficiently to cover their entire content56.

Things not to do:

a) Don’t use jargon, especially Departmental shorthand expressions or unexplained acronyms, unless you define them satisfactorily.

b) Don’t write in long blocks of text – more than 8 or 9 lines should be broken up e.g. into more paragraphs57.

c) Don’t use provisos – exceptions will convey the meaning more clearly; it may well be clearest to have an exception in a separate paragraph (e.g. “Paragraph (1) does not apply to.....).

d) Don’t use negative constructions, especially double negatives (contrast “You should use negatives only if there is a good reason” with “Do not use negatives if there is not a good reason.”).

e) Don’t draft by unnecessary reference to other legislation, see paragraph 4.3.3(j).

f) Don’t include “non-legislative material” to explain the scheme of regulations58.

g) Don’t leave finalisation of technical information to your policy colleagues. It is part of the instrument and must satisfy the drafting rules. Notes to a table must be explained59.

Imposition of obligations/criminal offences

4.4.5 As a matter of style consider using “must” rather than the more traditional “shall” to impose an obligation; “must” is often now used in primary legislation but do be

53 See the JCSI’s 18th Report of Session 1999-2000, paragraph 10. 54 See the JCSI’s 25th Report of Session 1999-2000, paragraph 4. 55 See the JCSI’s 10th Report of Session 1997-98, paragraph 3. 60 See the JCSI’s 25th Report of Session 2005-6. 56 See for example the JCSI’s 29th Report of Session 2002-3, paragraph 3, where the instrument the subject of the report contained single sentences of unbroken text of between 14 and 17 lines. 57 See for example the JCSI’s 29th Report of Session 2002-3, paragraph 3, where the instrument the subject of the report contained single sentences of unbroken text of between 14 and 17 lines. 58 An example which gave rise to an adverse report by the JCSI in paragraph 5 of their 37th Report of Session 1997- 8 was “Regulation 15 deals with the circumstances in which...and regulation 16 makes provision for...”. 59 See for example the JCSI’s 6th Report of Session 1999-2000, paragraph 5. 76

consistent throughout the instrument. You should not use “will” to impose an obligation.

4.4.6 Be careful when drafting criminal offences and other provisions relating to the enforcement of obligations. These provisions are often checked very carefully by the JCSI. Where an obligation is imposed on a private citizen or body, the instrument should leave no doubt about what the consequences of a breach will be60, nor should the procedure leave those affected in doubt as to when the obligation bites61. If for example an obligation is imposed on private citizens in regulations 2, 3, and 5 and on the Secretary of State in regulation 4, the best offence provision is “Any person who contravenes regulation 2, 3 or 5 is guilty of an offence.” This avoids either the literal implication that the Secretary of State is criminally liable or the risk of criticism for expressly exempting the Secretary of State from criminal liability62.

4.4.7 Remind your policy colleagues to consider whether it is necessary to create a criminal offence, bearing in mind the Government’s commitment to avoid the proliferation of unnecessary offences. They should contact the Ministry of Justice at an early stage both to ensure that they are content with the offences and penalties proposed, and to submit the required Justice Impact Test. For more information see h t t p s : / / w w w . g o v . u k / g o v e r n m e n t / p u b l i c a t i o n s / m a k i n g - n e w - c r i m i n a l - o f f e n c e s .

4.4.8 In addition watch out for the following points:

a) If you make it an offence if a person ‘contravenes’ particular provisions make sure that all such provisions are ones expressed to operate on persons, whether generally or particular categories; the formula will not work with a provision which is expressed to operate on things e.g. “All oranges must have a maximum circumference of x cm.” In those cases you need to identify the person who commits the offence, e.g. a person who sells an orange which does not comply with regulation x commits an offence. It is easy to overlook this in a long instrument.

b) Always think about whether the offence is or is not to be one of strict liability; if it is, should there be any defences or is there a

power to create them. Experience shows the Ministry of Justice prefer offences with a mental element so the adoption of suitable wording –”knowingly” or “intentionally” etc is appropriate unless there is good reason not to.

c) If there is to be a defence provision covering all offences under regulations make sure that it is apt for all the offences63.

60 See for example the JCSI’s 3rd Report of Session 2004-5. 61 See the JCSI’s 43rd Report of Session 1997-98 and the JCSI’s 11th Report of Session 2005-6, paragraph 4 62 See the JCSI’s 24th Report of Session 2001-02, paragraph 11 in relation to a provision in S.I. 2002/284 that exempted the Secretary of State and the National Assembly for Wales by name in relation to all offences imposed by or under the SI rather than just regulation 15, which imposed obligations purely on them. Although that was not a point made in the Report, it is doubtful that a Report would have been equally justified had the offence provision been: “It is an offence for any person to contravene any requirement imposed on him by or under any provision of these Regulations other than regulation 15”. 63 See for example the JCSI’s 13th Report of Session 2003/4, paragraph 2. 77

d) Always put yourself in the shoes of a prosecutor presenting a case under the proposed provision; consider whether it is workable in terms of the facts which need to be proved and the evidence which needs to be adduced; it is also easier for prosecutors to state their case if the components of the offence can easily be identified in the layout of the instrument.

e) Remember the definition of ‘the standard scale’ applies to offences triable only summarily. The term ‘statutory maximum’ applies to offences triable either way. If you use the wrong terminology the JCSI will report it. Note that the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (“LASPO”) removed the upper limit for fines that a magistrates’ court can impose on summary conviction in England and Wales. Unless it is desired to impose a lesser penalty, you need refer only to “a fine” when drafting provisions for summary only or either way offences. If it is desired to impose a lesser penalty you should continue to do so by reference to one of the levels 1 to 4 on the standard scale which still apply in England and Wales. In Scotland and Northern Ireland the standard scale and 64 statutory maximum still apply . If you are amending an instrument that already refers to level 5 on the standard scale or the statutory maximum you do not need to amend it as LASPO does it automatically: the agreed cross- Government approach is that existing references should not be updated unless the whole instrument is being consolidated but that any new provisions creating new offences being inserted alongside existing provisions should include a footnote pointing out the effect of section 85(1) of LASPO on those existing provisions. In England and Wales, following LASPO, offences created under section 2(2) of the European Communities Act 1972 can impose a fine of any amount as the restriction in paragraph 1 of Schedule 2 no longer applies. But when using section 2(2) in the case of a provision that extends

beyond England and Wales you will need to include drafting that reflects that the standard scale and statutory maximum still apply in Scotland and Northern Ireland. A note by the Ministry of Justice providing further guidance on this topic is available here .

f) Do not attach a criminal sanction to a provision which is not sufficiently precise to meet the standards of Article 7 of the ECHR. That applies even where the provision derives from an EU obligation.

g) Take account of human rights, in particular when drafting provisions about the burden of proof. Any reverse burden is open to challenge on the basis of incompatibility with Article 6(2) ECHR, so you will need to be clear that reversing the burden of proof is justified and proportionate (see Lambert [2002] AC 545;

64 An example of a UK wide provision for a summary offence is: “ A person who contravenes regulation X is guilty of an offence punishable on summary conviction- (a) in England and Wales by a fine: or (b) in Scotland or Northern Ireland by a fine not exceeding level 5 on the standard scale.” 78

Johnstone [2003]1 WLR 736; Sheldrake [2004] UKHL 43). In such cases, the risk is that a legal burden of proof placed on the defendant will be read down to an evidential one. The principles that the courts appear to follow in making such determinations include whether the matter is uniquely within the defendant’s knowledge, the severity of penalty and the risk of convicting the innocent. A legal burden on the defendant is one where the defendant must prove the matter on the balance of probabilities (as opposed to where the burden is on the prosecution in which case it is beyond all reasonable doubt). An evidential burden is where the defence must raise evidence to put the matter in issue and the prosecution must then disprove it beyond all reasonable doubt.

h) Recent drafting practice is to make it clear what form of burden it is intended that the defendant should be subject to. For legal burdens this is done by using the word “prove” and where the intention is to create an evidential burden , to use the word “show” and then include additional working as follows: “A person is taken to have shown the matters mentioned in subsection (x) or (y) if- (a) sufficient evidence of the matters is adduced to raise an issue with respect to it, and (b) the contrary is not proved beyond reasonable doubt.”

i) Be cautious if asked to extend the usual 6 month period for bringing prosecutions for summary offences; the JCSI has criticised such an extension as an unusual use of powers on the ground that it enabled the Department to take advantage of its own delay in prosecuting65. However if the powers do not prevent it, and there are good policy reasons for the extension of the 6 month period, there is no reason not to provide for it. It may help in such cases to explain the reasons in the Explanatory Memorandum.

4.4.9 Case law now recognises that unincorporated associations and partnerships can be convicted and fines paid out of their assets – see R v W Stevenson & Sons (A Partnership) and others [2008] EWCA Crim 273 and R v (1) RL (2) JF [2008] EWCA Crim 1970), but if this is the intended policy care must be taken to ensure the ingredients of the offence are clear.

Civil sanctions

4.4.10 Most statutory instruments are likely to need provision to enable enforcement of any duties or other obligations contained in them. In addition, or as an alternative, to the imposition of a criminal offence, you may be instructed to include in an instrument an alternative form of sanction which can be imposed by a regulator, such as a monetary penalty (sometimes referred to as administrative penalties or civil sanctions) or a notice requiring a course of action to be taken or an activity to be stopped. This is a developing area, and you will need to consider your vires for such

65 See the JCSI’s 4th Report of Session 1991-92, paragraph 11 and 7th Report of Session 1991-92, paragraph 5. 79

provisions (e.g. you may have power under the Regulatory Enforcement and Sanctions Act 2008 (the ‘RES’ Act) or subsequent enabling legislation, or section 2(2) of the European Communities Act 1972), and the vires may constrain the drafting to a certain extent (e.g. the RES Act sets out that certain results must be achieved, which will usually mean including something in the instrument to ensure that result is achieved). Your policy colleagues are also likely to need to discuss the introduction of such alternative sanctions with other interested departments, such as the Ministry of Justice and the Department of Business, Innovation and Skills..

Transitional provisions and savings

4.4.11 Consider whether you need any, what your enabling power enables you to do and discuss proposals with your policy colleagues. They can be complicated to draft and should not be left to the last minute. A saving is used if you revoke or amend an instrument but need to keep alive some provision in that instrument, usually for a purpose which will become spent. For example: “Article 12 (revocation) does not affect any application made to the Minister before the coming into force of this Order”. Note section 16 of the Interpretation Act 1978 (see Annex 1 paragraphs 25 to 27) which as applied by section 23 of that Act, provides a general saving applicable to instruments. If there is doubt about the effect of section 16, or the case is not one to which the section applies you may want to be specific as to the cases where the saving is intended.

4.4.12 Consider all cases ‘in the pipeline’ when the change takes effect and what is to happen to them. Do not let the policy colleagues rely completely on you to identify the transitional cases and decide the policy – the provisions will risk missing the target. Note section 17 of the Interpretation Act 1978 (see Annex 1 paragraphs 28 to 31) which contains some general transitional provisions on repeal/revocation and re-enactment. Again if there is doubt about the effect of section 17

express transitional provisions may be needed to cover similar ground.

4.4.13 A useful tip is to ask what happens if the instrument is silent. If that is what is wanted, then the instrument can remain silent. It is particularly important that where fees or charges are altered, it is clear who is entitled to be charged at the old fee and who is required to pay the new fee. This may be clear without making any transitional provision, but where any doubt could arise, a transitional provision should be included.

Amending: primary legislation

4.4.14 There needs to be an express power to amend primary legislation by means of a statutory instrument. The question sometimes arises as to whether a power to “modify” primary legislation can be exercised so as to make textual amendments. A former Counsel (Legislation) (Alan Preston) took the view in the context of a particular enabling power that it did - see extract from his letter of June 2005 on Parliament/JCSI (advice) on the LION Secondary Legislation site.

4.4.15 If the text of primary legislation is being modified the draft will need to be cleared by Parliamentary Counsel (see paragraph 2.3.8).

4.4.16 If the instrument repeals primary legislation or revokes subordinate legislation, a repeals schedule may be needed. Parliamentary Counsel’s practice when drafting a Bill used to be to sweep up all repeals in a repeals Schedule, including those effected elsewhere in the Bill. Only repeals which were “lead provisions” (freestanding legal rules) were dealt with in the body of the Bill. More recently Parliamentary Counsel has abandoned this “double repeal” technique. However, in the case of revocations in statutory instruments of subordinate legislation, SIP paragraph 2.6.2 provides that if the number of instruments to be revoked exceeds three, they should be set out in a schedule, which should include all revocations effected by the instrument, whether total or partial and whether or not effected elsewhere in the instrument.

4.4.17 If a provision of an Act that has been previously amended is being repealed, and if the old amending provision is now wholly redundant, then as a general rule it is good practice (assuming the enabling power allows for it) to repeal the old amending provision as a consequential measure – especially where that provision is the only remaining extant provision in an Act. That is because amendments were traditionally regarded as of continuing effect (unlike repeals which were regarded as spent once they have taken effect) so that it may be helpful to the reader and to those who edit legislation to clearly repeal what has become dead wood. However it is not always possible or desirable to make these repeals, especially if they would be extensive. It may sometimes be sensible to ask Parliamentary Counsel for advice on this.

Amending: secondary legislation

4.4.18 Choose your structure carefully. Consider putting changes in a Schedule or having one regulation or article for each set of provisions being amended.

4.4.19 Consider whether in the circumstances it is better to substitute a whole provision or effect a minimal change to the text (or revoke and replace the whole instrument).

4.4.20 Follow the style and terminology of the instrument being amended (though a gender neutral style should be adopted except in rare cases where fitting a new gender neutral provision with existing provisions would not work or cause confusion).

4.4.21 Always amend the basic instrument, not any amending instrument, though it is good practice to revoke any spent amending instruments. However, as indicated above at paragraph 2.10.4, an amending instrument can be amended before it has come into force.

4.4.22 You should use phrases such as “there is substituted/inserted/added/omitted” or “substitute/insert/add/omit”. In some cases, repeals can be achieved by saying “ … is repealed”.

4.4.23 Here are some examples for amendment which should follow a statement that “the ...... [Regulations] are amended as follows”. This style is preferable to the more long 81

winded “The [Regulations] shall have effect subject to the following amendments” as, unlike the latter, it leaves no doubt as to the text of the instrument following the coming into force of the amending provision.

a) “In regulation 2(1), after paragraph (b) insert the following paragraph: “(bb) ……….”.

b) “In Schedule 1, paragraph 6, for “x………….” substitute “y………” “.

c) “In article 4, omit paragraph (2)”. (A former Speaker’s Counsel (Stephen Mason) took the view that the word “delete” should not be used as it was editorial rather than legislative so when provisions

are to be left out it is best to use “omit”.)

d) “In Schedule 2, at the appropriate place, insert “D” and “X”“. (This is sufficient to ensure that, if there is no ambiguity arising otherwise, “D” goes after “C” and “X” after “W”. Ambiguity can however arise if the ordering of the provision into which “D” and “X” are inserted is not fully alphabetical or the provision being inserted (say one beginning with a number or with “the”) has no obvious place within alphabetical order. In such a case, the exact location needs to be specified, e.g. “In Schedule 2, after “C”, insert “D”.”.

4.4.24 Other points on amendments: a) Where the words you are changing appear more than once in a regulation or paragraph, identify which you are amending e.g. ‘in paragraph (1), for the words “yy”, where they first appear, substitute “zz’’. If you intend to amend each occurrence, say so: “For the words “yy” in each place in which they occur, substitute “zz”.”

b) There is some argument about the degree to which headings and punctuation can be considered to be part of the legislative text66. Whatever the true position, generally speaking you should not alter headings without replacing all or part of the corresponding provision, and you should alter punctuation only as part of an amendment of other text.

c) There has been JCSI criticism of inclusion in an amending instrument of provision to amend typographical errors in a previous instrument67. On the other hand, it is arguable that the reader is better served – if an amending instrument is needed otherwise – for all the textual changes to be in one place rather than two. There are recent examples of letters from Counsel (Legislation) highlighting minor errors as appropriate either for a correction slip or for inclusion in a forthcoming amending instrument.

66 See the judgment of the House of Lords in R v Montila, [2004] UKHL 50 and see Halsbury’s Laws volume on Statutes paragraphs 1270, 1277 and 1522. Note that headings and punctuation are “unamendable” components of an Act only in the sense that they cannot be amended as the Bill is going through Parliament, although they may be corrected by the Parliamentary clerks. Current drafting guidance from the Office of Parliamentary Counsel indicates that, in the context of Bill drafting, it is acceptable to amend the heading to a provision, and it may be helpful to do so if the provision is falsified by a textual amendment. 67 See the JCSI’s 32nd Report of Session1997-98, paragraph 4 – the items in question were misspellings and lower to upper case. 82

d) If you are inserting, say, a new regulation between regulation 5 and regulation 5A it could either be numbered regulation 5AA or regulation 5ZA; either is acceptable.

e) If a regulation consists of one paragraph and you want to convert it into two you could say:

“(1) Regulation X is renumbered as paragraph (1) of that regulation.

(2) After paragraph (1) as so renumbered, insert -

“(2)...”.”

Alternatively you might substitute a new regulation X comprising two paragraphs.

j) If you need to insert a Schedule before Schedule 1 you may call it Schedule A1; the one before that is Schedule AA1 etc. One that later needs insertion between A1 and 1 is A1A.

Revocation

4.4.25 Revoke provisions which are no longer needed. Note that section 16 of the Interpretation Act provides a general saving but if you are revoking and replacing you will need to consider whether section 17(2) of the Interpretation Act does, or should apply – this will automatically substitute references to the new provision for the old. If in doubt include a specific provision which will produce the result you are instructed to produce.

4.4.26 Set out the title of each instrument to be revoked; SIP paragraph 3.14.5 states that if you are revoking ‘’several’ SIs, good practice is to set them out in a Schedule. However if there are fewer than, say, five or six instruments to be revoked an alternative formulation might be: “The following regulations

are revoked–

(a)... (b)...

(c)...

(d)...”

The same form may be appropriate for a provision making a few repeals in Acts (but there the word would be “repealed” rather than “revoked”)

4.5 Schedules

4.5.1 Schedules are normally numbered in the order in which reference is made to them in the body of the instrument. If a reference appears in the definitions and a regulation it is acceptable to regard the latter as the first reference. Where there is one Schedule it is referred to as “the Schedule” not “Schedule 1”. Reclassification as a numbered Schedule is appropriate if further Schedules are later added.

4.5.2 To be securely effective, Schedules should always be introduced in the operative part of the instrument e.g. “Schedule X has effect to specify payments due to the Minister pursuant to these Regulations”. If the Schedule would be complete in itself were it part of the operative text it can validly be introduced by no more than “Schedule X has effect”. But note that the introduction has to be sufficient to cover the full Schedule text68.

4.5.3 Technically there is nothing intrinsically ineffective in a “hanging” Schedule – i.e. one (Schedule Y) introduced purely by wording in another Schedule (Schedule X), in a case where the wording that introduces Schedule X is wide enough to embrace Schedule X’s own introduction of Schedule Y. This is sometimes done in implementing provisions of a European Directive where one Annex introduces another. But drafting in that way in English drafting seems clumsy and is almost always possible to avoid (for example by merging the two Schedules and dividing the merged Schedule into Parts.

4.5.4 Technical Schedules are just as much part of the SI as any other part. The drafter needs to ensure that they work conceptually and that they follow the conventions of SI

drafting.

4.6 JCSI points

4.6.1 Paragraph 2.18.2 dealt with the JCSI’s terms of reference. This section deals with areas likely to be of concern to it.

4.6.2 The JCSI’s “First Special Report” for 1995/6 contains matters which had given rise to regular complaints by the JCSI. Many of the points contained in it are covered elsewhere in this section. Other points which it made in that report which are still relevant are:

a) “The inclusion of provisions (usually “standard” ones) which are unnecessary or meaningless (and therefore misleading) in the particular context: examples are “unless the context otherwise requires”,” however expressed”: “in addition to”; “subject to any statutory provision” and “without prejudice” (the last two examples when used with reference to Acts betray forgetfulness that statutory instruments are inherently subordinate).”.

68 See the JCSI’s 25th Report of Session 2005-6, in relation to S.I. 2006/660. 84

b) “Inconsistent drafting within the same instrument:

1) Using different words or expressions for the same proposition (for example “to ensure arrangements are in place” for “to put arrangements into effect”)

2) Where it is intended that a requirement be consistent within an instrument, sometimes expressing and sometimes leaving to implication that requirement (for example, whether notice is to be given in writing).”

c) “The ambiguous use of reference words such as “such” and “so [required]”.

4.6.3 However, as mentioned in paragraph 2.9.1 a substantial number of adverse reports from the JCSI arise from simple careless errors resulting, it is to be assumed, from drafting instruments in a rush and not allowing enough time for checking, or checking with insufficient care.

4.6.4 Apart from reports of this nature, a check of the synopsis of JCSI Reports on the Secondary Legislation Site on LION, backed up by its full reports on the Parliament website, will reveal two major underlying concerns - first that drafters follow the formalities in SIP and secondly

that they have thought out the entirety of what they are drafting.

4.6.5 Other areas of concern not covered elsewhere in this Guidance include: a) erroneous characterisation of an Act as local69,

b) overly complex drafting70,

c) failure to follow prior JCSI Reports71,

d) reliance on general ECHR principles to support an unnecessarily wide provision that could have been drawn up more narrowly72,

e) when instruments should be made available free of charge,

f) insufficient specificity in offence provisions,

g) failure to dovetail with legislation cross referred to,

h) obligations without time limits for compliance,

69 JCSI’s 11th Report of Session 2004-5, paragraphs 1 and 14th Report of Session 2004-5, paragraph 1.4. 70 JCSI’s 4th Report of Session 2003-4, paragraphs 2 and 4, 19th Report of Session 2002-3, paragraph 25 71 JCSI’s 5th Report of Session 2002-3, paragraph 5 72 JCSI’s 30th Report of Session 2002-3, paragraph 4 85

i) when supplementary guidance can validly be used to support a general statement73,

j) failure to cover transition adequately74,

k) failure to provide for modifications precisely75,

l) failure to address cross boundary issues when implementing EU rules76,

m) use of imprecise terms of art77,

n) unsubstantiated assertions in responses to the Committee78,

o) when reverse burdens of proof are satisfactory79,

p) failure to specify the need for someone with a power of entry to show authority when requested80,

q) when consolidation is desirable (also a matter of interest to the Secondary Legislation Scrutiny Committee)81,

r) sending copies of instruments to the JCSI82.

4.6.6 The advisers to the JCSI are very willing to discuss points that drafters are doubtful about while preparing an instrument. If these discussions throw up points that affect provisions vetted or drafted by Parliamentary counsel, it is sensible to involve the counsel concerned in formulating the response, especially if the point is significant. If the JCSI knows that Parliamentary counsel has been involved this may affect what the JCSI adviser will say or do.

4.7 Other drafting points (A to Z)

Appeals

4.7.1 The Deregulation (Model Appeal Provisions) Order 1996 (S.I. 1996/1678 as amended by section 13 of the Regulatory Reform Act 2001) contains model provisions with respect to appeals against enforcement action with a view to their incorporation in enactments affecting business.

73 JCSI’s 30th Report of Session 2002-3, paragraph 6. 74 JCSI’s 3rd Report of Session 2002-3, paragraph 4, 29th Report of Session 2002-3, paragraph 1. 75 JCSI’s 18th Report of Session 2002-3, paragraphs 2.4 and 2.5. 76 JCSI’s 12th Report of Session 2002-3, paragraphs 12 and 16. 77 JCSI’s 9th Report of Session 2002-3, paragraph 8. 78 JCSI’s 1st Report of Session 2002-3, paragraph 15. 79 JCSI’s 4th Report of Session 2002-3, Appendix 2. 80 JCSI’s 34th Report of Session 2001-2, paragraphs 3 and 4. 81 JCSI’s 30th Report of Session 2001-2, paragraph 5. 82 JCSI’s 29th Report of Session 2005-6, paragraph 1. 86

Commencement Regulations

4.7.2 In most respects, drafting commencement regulations is like drafting any other instrument. But there are various points to note:

a) Commencement regulations are numbered in series, from the first to the last, regardless of the year in which they are made. So the first could be “the X Act 1999 (Commencement No.1) Regulations [2017]” and the second “the X Act 1999 (Commencement No.2) Order [2018]”. This is unlike, for instance, amendment instruments, which are numbered sequentially during any one year. Only ever call the regulations the “X Act 2018 (Commencement) Regulations” (without the “(No. 1)”) if you know they are the only commencement regulations there can and will be. The registration number of commencement regulations will also contain a numeral, preceded by “C” giving its number in a series of commencement regulations in the relevant year. This numeral appears immediately after the registration number, except in the case of instruments made by the Welsh Ministers where it follows the Welsh series number (see SIP, paragraph 3.7.6).

b) Commencement regulations do not generally need to specify a date of coming into force - and indeed it will be wrong to do so. They will almost invariably be subject to no Parliamentary procedure (and so do not require an Explanatory Memorandum) and come into force on making. However, regulations which are subject to e.g. negative Parliamentary procedure will have to specify the dates of laying and coming into force in the usual way83.

c) If the regulations bring provisions into force earlier than two months after Royal Assent paragraph 3.40 of the Cabinet Office Guide to Making Legislation (July 2017 issue) applies:

http://www.cabinetoffice.gov.uk/resource-library/guide-making- legislation.

This states:

“In exceptional circumstances, approval for early commencement should be sought from the Law Officers and the Chair of PBL Committee.”.

However note that this does not apply to the commencement merely of a power to make secondary legislation.

d) The power generally given is to appoint a day, not a particular time of day. The day appointed can never be earlier than the day after making, otherwise the

83 Section 17 of the Patents Act 2004 is an example of enabling powers under which a commencement order is subject to negative resolution where it also contains consequential, incidental or supplementary provisions – see S.I. 2004/3205. 87

appointed day would begin before the regulations are made and involve unacceptable retrospection84.

e) Commencement regulations can (like any other instrument made in the exercise of powers that come into force on Royal Assent) be made on the day of Royal Assent, provided it is made after Royal Assent (and in these circumstances the time of day when the regulations are made should be noted on the file).

f) Commencement regulations cannot be revoked or amended after the date appointed for commencement. They can be revoked or amended before the date appointed for commencement, and where the regulations contain transitional, savings or incidental provisions, these provisions can in principle be amended after the commencement date.

g) If the instructions are to bring certain provisions into force for particular purposes only, check that there is power to do so. As to bringing regulation, etc. making powers into force early to ensure that the regulations can come into force on the correct date, see also Annex 1, paragraph 17. Check that this will not prevent anticipatory exercise of the power or any other power, pursuant to section 13 of the Interpretation Act 1978, should such a course be desired.

h) If a provision is initially commenced only in part or only for certain purposes, it can eventually and finally be brought into force for “all remaining purposes”.

i) When commencing a Schedule, or a paragraph of a Schedule, you must also commence the section or subsection of the Act which introduces it (if not already in force, or in force for that purpose), e.g. “paragraph [X] of Schedule [Y] and section [Z] so far as it relates to that paragraph”. Statutes vary in their approach to commencement. Some leave both schedule and introductory provision to be commenced, and others leave one or other to be commenced but not both.

j) If there is power to include savings or transitional provisions in the regulations, and this power is being exercised, don’t forget this may affect the title of the instrument - see paragraphs 3.9.9. and 3.9.10 of SIP.

k) For explanatory, etc. notes to commencement regulations see paragraph 3.23.12 and section 3.24 of SIP.

l) Where the enabling Act provides that consultation is a precondition to the making of an instrument it may be necessary (depending on the wording of relevant provisions) to bring into force early the provision which requires consultation. This is to avoid the argument that consultation carried out before the duty is in force cannot satisfy the duty when it is brought into force.

84 See JCSI’s 33rd Report of Session 2005-6, paragraph 1. 88 m) As mentioned in paragraph 4.4.16, Parliamentary Counsel’s practice is to sweep up all repeals in a repeals Schedule including repeals which may be effected elsewhere in the Bill, either in the body of the Bill or in a minor and consequential amendments Schedule. So a repeal may appear twice in an Act, once in the repeals Schedule and once somewhere else in the Act. Make sure that both provisions are brought into force.

Copy-out

4.7.3 The guidance on Implementing European law, available on LION here:

https://lion.governmentlegal.gov.uk/the-law/legal- topics/european/Guidance%20on%20EU%20Law/Implementing%20European%20 Law.aspx

states that when transposing EU law, the Government will always use copy out for transposition where it is available, except where doing so would adversely affect UK interests e.g. by putting UK businesses at a competitive disadvantage compared with their European counterparts. If departments do not use copy-out, they must explain to the Reducing Regulation Sub-Committee the reasons for their choice. See section 8.1.1 of DExEU’s guidance for a detailed discussion of the technique and where “elaboration” (the term for when copy-out is not used) may be justified.

4.7.4 The JCSI, in reporting an instrument that relied on copy-out for defective drafting, has set out its views on the technique as one of a number of available drafting devices used for transposition. The Committee accepts that exact copying out of a directive text may be appropriate, as well as paraphrasing and cross-referencing and it has made it clear that it has no automatic preference for any one of them in principle. However the Committee concluded in the case of the instrument reported on that where the provisions of a Directive are clear on what is intended to be achieved but structured in a way that would not normally be regarded as acceptable by the Committee for a statutory instrument, exact copying out is not an appropriate implementation method85.

Devolution

4.7.5 See the “Devolution and SI Drafting Guidance” (May 2008), and other information relating to devolution, available on the Devolution site on LION here:

https://lion.governmentlegal.gov.uk/the-law/legal-topics/devolution/guidance-and- materials.aspx

and, in the context of EC law implementation, the DExEU guidance on Implementing European law, available on LION here:

85 See the JCSI’s 30th report of Session 2010-12, which criticised S.I. 2011/1860 for defective drafting for the use of mismatching definitions taken from a directive. The Committee felt it would have been straightforward to eliminate the mismatches without any risk of failure to implement the Directive securely. 89

https://lion.governmentlegal.gov.uk/the-law/legal- topics/european/Guidance%20on%20EU%20Law/Implementing%20European%20 Law.aspx.

The four Acts which created the territorial legislatures are the Government of Wales Act 1998, the Government of Wales Act 2006, the Scotland Act 1998 and the Northern Ireland Act 1998.

4.7.6 The main circumstances likely to arise are:

a) the enabling Act predates devolution: who exercises the powers where may need to be explained,

b) the enabling Act post dates devolution: the Act contains provisions on the exercise of powers under it.

4.7.7 Check whether the powers are devolved or reserved. The effect of devolution may need to be reflected in the heading, title and an extent/application provision, according to the circumstances. A footnote is commonly used to explain the devolution position in relation to enabling powers which predate the devolution settlement.

4.7.8 Note that the devolution settlement operates as regards Scotland and Northern Ireland as part of their respective legal systems. The position as regards Wales is different because the law of England and Wales is a single system. To respect the difference, it is conventional to refer to instruments “extending” (or not) to Scotland/Northern Ireland (or to England and Wales) and “applying” in relation to Wales alone or England alone; for the effect of forming part of legal systems - see paragraphs 3.2.4 and 4.2.6 to 4.2.8 above.

4.7.9 Amendments and revocations of instruments require careful consideration where only one country is to be affected. Make sure any amended text makes sense and works as intended for the other administrations. When revoking a provision for England limit the application of the revocation to England; but if the provision has been revoked by the Welsh Ministers then revoke it as a whole for England and Wales and footnote the relevant Welsh instrument.

4.7.10 Where an instrument amends primary legislation and the amendment is territorially limited see the “Devolution and SI Drafting Guidance” mentioned in paragraph 4.7.5 for various examples of how the amendment might be done.

4.7.11 Remember timing if you have to coordinate with any of the devolved administrations. This applies whether the instrument needs the consent of the devolved administrations, whether you are obtaining their comments, or whether they are making their own instrument in parallel. For example, it can take the National Assembly for Wales around a sitting month to approve a joint instrument; or if the Welsh Ministers are making a parallel instrument. The fact that the NAW can amend it, and translation into Welsh, can add at least 10 sitting weeks to the timetable. Also, the NAW has no procedure for acting in the recess. 90

Electronic communications

4.7.12 In the light of the Government’s targets for the amount of business that can be transacted electronically you may need to consider with your policy colleagues where they should be any specific provision authorising or facilitating the use of electronic communication or storage.

4.7.13 You should be aware of the Electronic Communications Act 2000, the Orders that can be made under it, and the E-commerce Directive.

4.7.14 In relation to electronic communications, two issues will need to be considered. The first is whether an existing legislative requirement to use “writing” is compatible with the use of electronic communication or storage or if an additional order under section 8(1) of the Electronic Communications Act 2000 is appropriate. The question here is whether a requirement in legislation to use “writing” can be satisfied electronically. Schedule 1 to the Interpretation Act 1978 contains a definition of “writing”. Note that the definition applies to all Acts whenever passed and to secondary legislation made after 197886, but applies only “unless the contrary intention appears”. Where that definition applies, a requirement that something be set out “in writing” will in appropriate cases include writing by means of an electronic communication, as the definition provides that “Writing” includes typing, printing, lithography, photography and other modes of representing or reproducing words in a visible form. However, some kinds of electronic communication may not be covered by the definition87. Furthermore, each case will depend on construing the intention of Parliament in context88, and thus there may be cases where it is unclear whether electronic communications are covered at all. This may particularly be so where the statute was enacted at a time when electronic communications were not contemplated or where the use of electronic communications, without further statutory provision, would not produce satisfactory results in the circumstances.

4.7.15 In such cases, the instrument in question may not be able to cover electronic communications or storage and instead you many need to consider whether an order should be made under section 8(1) of the Electronic Communications Act 2000, modifying legislation for the purpose of authorising or facilitating the use of electronic communication or electronic storage. It is thought that “facilitating the use of” electronic communications includes all measures making it easier for people to use them in practice, including taking steps to remove doubt that use of electronic communications is contemplated, or about incidental matters which might inhibit people from using electronic communications in certain circumstances.

86 See sections 5, 22 and 23 of the Act, and paragraph 4(1)(b) of Schedule 2. 87 For example, in the context of the international sale and carriage of goods and associated banking and insurance transactions, in December 2001 the Law Commission advised that electronic mail systems (e-mail) and transactions conducted through a website (website trading) would generally satisfy the Interpretation Act definition because the words used in such electronic media would be visible. However, Electronic Data Interchange (EDI) would not, as EDI messages are not intended to be read by persons but by other computers. As persons are not able to view EDI messages, the requirement of visibility would not be satisfied. 88 See, e.g. Victor Chandler International v Customs & Excise and Teletext Ltd [2000] EWHC Admin 299. 91

4.7.16 The second issue is whether the requirements of the E-Commerce Directive apply and are met. If your instrument could regulate activity on the Internet, for example by imposing obligations on those providing services on the Internet, you will need to take into account the requirements of the E-Commerce Directive. The three most important aspects of the Directive are the requirements to regulate in accordance with the country of origin rules set out in the Directive, to provide internet service providers with immunity from liability, and to provide for offences to be able to be committed outside the UK in other EU member states in certain circumstances. Although the E-Commerce Directive was generally implemented by the Electronic Commerce (EC Directive) Regulations 2002, these Regulations do not apply to legislation that postdates them. Detailed examination of the law in this area is outside the scope of this Guidance document. DCMS is the lead department for this directive and the legal team there should be consulted – current contact is David Symes.

4.7.17 An example of an Order made under section 8 to facilitate the use of electronic communications is the NHS (Pharmaceutical Services and (Misuse of Drugs) (Electronic Communications) Order (S.I. 2001/2888).

Entry, inspection and penalties

4.7.18 Policy colleagues are required, following the Cabinet Office Guide to Making Legislation (July 2017 issue):

http://www.cabinetoffice.gov.uk/resource-library/guide-making-legislation

This deals with Bills but recommends these procedures for instruments), to consult the Ministry of Justice if an instrument is to create a criminal offence or alter the level of a penalty. The Home Office must be consulted in relation to new or extended powers of entry to land or buildings. Note that the JCSI expects a power to enter a dwelling to say so specifically89.

4.7.19 Issues to consider in relation to entry and inspection include:

a) when can it take place (all reasonable/working hours/ any time? on notice? without notice?),

b) preconditions,

c) who can carry it out ,

d) ability to remove or copy anything – this should be restricted to what can reasonably be needed by the enforcement officer90,

e) duties to cooperate and penalties for failure,

89 See its 13th Report of Session 1997-98, paragraph 5. 90 See the JCSI’s 21st Report of Session 1989-90, paragraph 4. 92

f) ability to take photographs or samples,

g) human rights considerations.

Footnotes

4.7.20 It is important to follow SIP (section 3.21) and anything in excess of that may be treated by the JCSI as defective drafting91 unless doing so is clearly helpful to the prospective reader. In the latter case, the JCSI appears to regard additional material as acceptable92.

4.7.21 Remember in particular to have a footnote:

a) where there has been a transfer of functions order,

b) where there is a designation under section 2(2) of the European Communities Act 1972,

c) where devolution is relevant to the exercise of the powers,

d) showing the year and chapter number of Acts referred to, plus particulars of relevant amendments, extensions or applications: SIP paragraphs 3.21.10, 3.21.12 and 3.21.4.

e) showing the year and serial number of instruments referred to; if these have been amended, relevant amendments should be set out: SIP paragraphs 3.21.13 to 3.21.20,

f) citing EU legislation correctly, with the Official Journal reference: SIP paragraphs 3.21.15 to 3.21,

g) giving the number of any Command paper referred to: SIP paragraph 3.21.2,

h) information about statutory bodies which helps the reader to identify them,

i) where a power is cited because it explains the use of other powers

e.g. the meaning of “prescribed”.

4.7.22 Acts or instruments mentioned more than once in the instrument only need one footnote (SIP paragraph 3.21.8). In a long instrument, it was formerly a requirement to repeat the footnote in such cases, but not more often than every third or fourth page. Although the 2017 edition of SIP has dropped this requirement, such repetition may still be helpful. It is helpful in a complicated

91 See the JCSI’s 26th Report of Session 1998-99, paragraph 5 criticising the listing of all amendments, not just relevant ones. 92 See the JCSI’s 27th Report of Session 2005-6, paragraph 2. 93

instrument that refers to various provisions of a heavily amended Act to footnote separately the amendments to individual sections where mentioned in the body of

the instrument .

4.7.23 Footnotes should be inserted immediately after the reference to the legislation, rather than, say, having one footnote at the end of a paragraph to cover all the references in that paragraph.

4.7.24 Footnotes do not count as part of the instrument text and therefore, if necessary, can be altered for the published text after signature of the instrument.

4.7.25 In particular when amending other legislation by inserting text, a footnote reference may be inserted immediately after the relevant matter referred to. The footnote is a footnote to the amending instrument being made now, and not to the legislation amended. So the fact that the footnote reference occurs within the long quotes (i.e. within the inserted matter) does not insert it into another enactment.

4.7.26 When drafting or checking drafts check that there is a full stop at the end of each footnote. The template should automatically start the

sequence of numbering on each new page.

Gender neutral drafting

4.7.27 Gender neutral drafting was introduced for secondary legislation projects commencing on or after 1 October 2008, following the announcement by the Leader of the House in on 8 March 2007.

4.7.28 There is guidance on gender neutral drafting produced by Office of the Parliamentary Counsel and by James Cooper of Defra, both on the Secondary Legislation site on LION under “Drafting Guidance”.

4.7.29 Practice varies on whether a recital should be in gender neutral form. Although gender neutral language should be used elsewhere in an instrument, including where reference is made to the Secretary of State, it is permissible to refer in a recital to the Secretary of State’s actual gender at the time of making.

4.7.30 Section 6(a) and (b) of the Interpretation Act 1978 still enables drafters to draft in one gender or the other without the need to resort to additional words or artificial devices in order to secure that both genders are covered. Use of the ‘he or she’ formulation may be considered inadvisable as it causes confusion, and makes it look as if the drafter is not aware of section 6(a) and (b) - though there are occasions where it might be considered suitable to make legislation accessible where it is likely to be read by laypeople. This was done in relation to certain banking and savings issues, e.g. in the Bradford & Bingley plc Compensation Scheme Order 2008 (S.I. 2008/3249).

4.7.31 The titles of some offices are not gender neutral, for example the Lord Chief Justice, or the Chairman of an existing Non-departmental Public 94

Body with an office so named. Such offices can be referred to by these titles, but when creating new offices, gender neutral alternatives should be considered.

4.7.32 In its Seventh Report of Session 2008-9, 9 March 2009, in reporting S.I. 2009/3195, the JCSI commented –

“2.2 These Regulations adopt a gender-neutral drafting style which mentions the masculine and feminine forms of personal pronouns and possessive adjectives (“he or she”, “his or her”). The Committee, while not regarding failure to adopt gender- neutral drafting as alone being a ground for reporting, has no difficulty with gender-neutral drafting as a matter of principle, and is prepared to make allowance for a degree of extra clumsiness in the drafting which may result. However, it does not consider that such allowance should be made for ambiguity or internal inconsistency.....

The Committee also makes the general observation that the particular gender neutral drafting style used in these Regulations is usually better avoided. Its adoption—

• implicitly displaces the default assumption relating to gender which would otherwise operate by virtue of section 6 of the Interpretation Act 1978, as read with section 23 of that Act, only to replicate the effect that section 6 would have had, had it not been displaced, and

• does not even achieve full gender neutrality, as it raises the question: why not “she or he” or “her or his”?

Other techniques of gender-neutral drafting can readily be adopted which do not involve by-passing the 1978 Act and which avoid questions about priority being given to one gender over another. Such techniques are not limited to repeating a noun (which the Department saw as cumbersome). Giving a shorter label to a noun, as in “a person (“P”)”, is—for example— equally possible.”.

Incidental, supplementary and transitional provisions

4.7.33 The JCSI in its First Special Report for 1995-6 (mentioned in paragraph 4.6.2) commented:

“The Committee has on a number of occasions reported an instrument as of doubtful vires in so far as it purported to do certain things under a power (almost a standard power) to make incidental, supplemental and transitional provision. Under these general words instruments have purported to modify primary legislation, sub-delegate functions or give power to borrow money...The Committee would remind Departments that general words are subject to implied restrictions as a matter of statutory interpretation and that

such general powers cannot usually be used for the above mentioned specific purposes.”

Numbering of SIs

4.7.33A Each SI is issued with an SI number, and may also have a subsidiary number in a specific series (see section 3.7 of SIP).

Piloting provisions

4.7.34 Policy colleagues may want to ‘try out’ provisions in different areas or for different groups of people before deciding whether to extend them across the country and to all groups. A genuine piloting exercise is the use of powers:

a) for a limited period, expressed as such on the face of the instrument

(i.e. it contains a “sunsetting” provision), and

b) for the purpose of testing the provisions with a view to adopting or adapting them for nationwide use, or starting again if the measures prove unworkable or do not achieve the desired objective.

4.7.35 Under a pure pilot, individuals have rights and obligations and may be subject to penalties. (It may be possible to construct a test of provisions using volunteers who enter into agreements and therefore have a choice as to whether to participate – this is not covered here).

4.7.36 The main issues to consider are:

a) Is there an express power to pilot in enabling legislation (e.g. section 29 Jobseekers Act 1995 which was used e.g. for S.I. 2000/3134)?

b) Are there other powers in the enabling Act which would authorise what is required (e.g. powers to make provision for areas or classes, to make full or less provision)? If, where the exercise of the power attracts the affirmative resolution procedure, you fear that you may be so affecting private rights as to risk a finding in the House of Lords that the resulting instrument would be regarded as hybrid, consult the Deputy Counsel to the Chairman of Committees on the point.

c) If there are powers, whether their use would be at risk of a ECHR challenge – the discrimination inherent in a pilot would have to be justified as would the choice of period and group affected; demonstrating that there will be monitoring and evaluation and that any marked benefits or disadvantages will be taken into account in deciding whether to continue with the pilot, cancel it or extend across the country are likely to be important factors, as are issues of proportionality and how clear the legislation is in authorising the pilot.

d) What is intended to follow after the pilot, what light this casts on the issues raised above, whether there are powers to implement what is required at that point, how those subject to the pilot are to be ‘reintegrated’ into generally applicable provisions.

e) Whether there are other pilots or similar initiatives which may apply to the same area or group and how these are intended to interact.

Power to prescribe categories etc.

4.7.37 Where there is a power to prescribe, say, categories or circumstances, be wary of using this power to prescribe all. In its 8th Report of Session 1997-8, paragraph 3, the JCSI reported an instrument made under powers which referred to “such category of schools as may be prescribed”. The instrument prescribed as a category “all schools [in England]” and the JCSI reported it for an unusual and unexpected use of powers. More recently in paragraphs 1 to 3 of its 9th Report for Session 2005- 6 the JCSI considered an instrument made under powers which provided that a fee for a report could be charged “in prescribed cases”. The instrument provided that certain bodies “may in all cases” require payment of a fee. The JCSI did not regard that provision as being an unusual or unexpected use of powers but it did report the instrument for defective drafting. Its view was that the drafting should have identified the prescribed cases.

4.7.38 A similar type of point arose in an instrument reported as ultra vires in the 12th Report of Session 1996-7 paragraph 5 where the powers referred to work of a prescribed class and the instrument referred to “works of any class except works of the class described in …”.

Retrospection

4.7.39 If an instrument is to apply retrospectively there must be powers for this. Note that an instrument made under section 2(2) of the European Communities Act 1972 implementing EC law may not have retrospective effect (paragraph 1(1)(b) of Schedule 2 to the 1972 Act).

4.7.40 If there is the power to act retrospectively, mention the power in the Explanatory Note and consider whether to draw it to the JCSI’s attention in the Explanatory Memorandum.

4.7.41 Note that imposing future benefits or constraints based on past action does not count as retrospection, though there could be ECHR problems, and always check the whole of your draft for inadvertent retrospection particularly when consolidating93.

4.7.42 Remember that by section 23(1) of the Interpretation Act, instruments take effect from the beginning of the day on which they are expressed to take effect (unless

93 See for example the JCSI’s 12th Report of Session 1997-8, paragraph 8. 97

otherwise stated). There will be inadvertent retrospection if you make the instrument take effect on the date of making.

4.7.43 Even if there is the power to make an instrument with retrospective effect do not provide that the instrument comes into force before it is made. An instrument can never come into force until it is made94.

Sub-delegation, waiver and subordinate direction

4.7.44 Legislative sub-delegation is the conferring by instrument of a power on someone (including the maker of the instrument) to make general rules. There are other forms of sub-delegation, for instance conferring by instrument a power on someone (including the maker of the instrument) to waive the application of a general rule in the instrument in respect of a particular case or individual. Similarly, the instrument may confer a power on someone (including the maker of the instrument) to give directions requiring an individual to act in a certain way. Such forms

of delegation are sometimes called “administrative sub-delegation”.

4.7.45 Legislative sub-delegation must be expressly authorised, but it may be possible to argue that administrative sub-delegation is impliedly authorised if the enabling power is expressed in sufficiently general terms. Legislative sub-delegation (except in the case of court or tribunal rules) is expressly prohibited in the case of instruments made under section 2(2) of the European Communities Act 1972 (see paragraph 1(1)(c) of Schedule 2) and a useful discussion of what constitutes legislative sub-delegation can be found in DExEU’s guidance on Implementing European law (as to which see paragraph 1.7.2)).

4.7.46 Reports from the JCSI on doubtful vires have included reports on:

a) a “form approved by X” where the enabling Act provides a power to prescribe the form,

b) “A recommendation for registration shall contain such particulars as the Secretary of State may determine”95,

c) a provision enabling Principals of a further education college to delegate any of their functions (with specified exceptions) to holders of senior posts where the enabling Act provided power to make “such other provision as may be necessary or desirable”96.

4.7.47 It is for the reason given above that if the instrument refers to an outside publication (e.g. ‘such standards as are set out in X Guide’) the instrument should state the edition and if possible ISBN number. If later editions of the Guide can set the standards, the power has been

94 See the JCSI’s 27th Report of Session 2001/02 regarding S.I. 2002/561. 95 See the JCSI’s 10th Report of Session 1993-94 paragraph 4; in this case however the Department in its memorandum conceded that the enabling power did not confer such a power to sub-delegate. 96 See the JCSI’s 10th Report of Session 2001-2, paragraphs 9 and 10: the JSCI did accept however that the enabling power would have allowed a more limited sub-delegation. 98

delegated unlawfully to the producers of the guide. When referring to a digital document, a date or version number should be given to fix it at a given moment. See SIP section 3.17 for references to external documents.

Sunsetting and review

4.7.48 Care needs to be taken when including sunset or review clauses in secondary legislation that the power under which they are made is sufficient. In 2011 the decision was taken to seek primary legislation to resolve some of the doubts that had been raised, such as whether a power to make incidental and supplementary provision permitted the inclusion of a review clause. Note also that section 16 of the Interpretation Act, as read with section 23, applies to expiry of a temporary enactment as it does to revocations.

Transfer of Functions

4.7.49 Any Transfer of Functions Order (‘TFO’) which affects the powers cited in the instrument should be mentioned in a footnote (including the title of the Order). Such Orders are made by the Privy Council under the Ministers of the Crown Act 1975 and require negative resolution procedure, except where a Department is being dissolved in which case an equivalent to the affirmative procedure applies. TFOs are generally drafted by Parliamentary Counsel on instructions from the Department primarily involved.

Unusual or unexpected use of powers

4.7.50 If your instrument may constitute an unusual or unexpected use of the powers you may wish to consider including material to the JCSI in the Explanatory Memorandum which gives a justification.

4.7.51 Examples in the past have been: large increases in prescribed sums97, bestowing functions of a judicial nature on a person with no legal qualification98 and use of a general power where more specific powers are provided99.

Words and phrases

4.7.52 “and” and “or” –

“X and Y” means both X and Y; “X or Y” can mean X or Y (but not both), but can often mean “X or Y or both”. With the exception of unavoidable replication of an EC formulation, primary legislation has never used “and/or”. It may be necessary to say “X or Y or both” or “X, Y and Z or any one or more of them”. Care must be taken to

97 JCSI’s 10th Report of Session 1999/2000, paragraph 2. 98 JCSI’s 10th Report of Session 1999-2000, paragraph 18. 99 JCSI’s 13th Report of Session 1999-2000, paragraph 4. 99

avoid ambiguity when listing requirements, some of which are cumulative and some 100 alternative .

4.7.53 “applicable” or “relevant” describing provisions which could have been specified are likely to attract JCSI criticism unless their meaning is obvious. In one case101 the instrument provided that in certain circumstances the Minister should “comply with such of the provisions of this Schedule as are applicable in the circumstances”. In another case the instrument required the master [of a ship] to “ascertain and record that the ship is in conformity with the stability criteria in the relevant regulations”.

4.7.54 “article” -

102 The JCSI consider that this does not include a live creature!

4.7.55 “as amended” –

a) This should not be used in relation to references to Acts or instruments, see section 20(2) of the Interpretation Act 1978 and Annex 1 paragraphs 32 to 37.

b) The formulation should be used in relation to prerogative Orders in Council, when appropriate, and the amending instrument referred to in the body of the instrument or a footnote; a previous Speaker’s Counsel pointed out that these Orders in Council are not covered by section 20(2).

c) The formulation has previously been necessary for references to EC legislation but see now section 20A of the Interpretation Act 1978 inserted by section 25 of the Legislative and Regulatory Reform Act 2006 and the DExEU guidance on Implementing European law which includes advice on the footnoting of EU legislation, available on LION here:

https://lion.governmentlegal.gov.uk/the-law/legal- topics/european/Guidance%20on%20EU%20Law/Implementing%20European% 20Law.aspx.

4.7.56 “bank holiday” –

Remember that Christmas Day and Good Friday are not bank holidays as specified in the Banking and Financial Dealings Act 1971. (They are common law holidays.)103 So if you need the concept of, say, a “working day” you will need to mention Christmas Day and Good Friday as well as bank holidays. An example of a definition of working

100 See JCSI’s 28th Report of Session 2005-06, paragraph 1.3 concerning S.I. 2006/1179. 101 JCSI’s 16th Report of Session 1996-97, paragraph 4. 110 2nd Report of Session 1998-99, paragraph 3. 102 See its 1st Report of Session 1999/2000, paragraph 14. 103 See also the JCSI’s 19th Report of Session 2002-3, paragraph 2.2. 100

day in the Financial Services and Markets Act 2000 section 103(1), as amended by SI 2005/1433, is:

““working day” means any day other than a Saturday, a Sunday, Christmas Day, Good Friday or a day which is a bank holiday under the Banking and Financial Dealings Act 1971 (c. 80) in any part of the United Kingdom”.

Note however that the 2000 Act is a UK Act so the last 7 words may not be appropriate 104 where the extent of an instrument is more limited.

4.7.57 “British Overseas Territories” –

The following is a list of the correct designations of British overseas territories (formerly “dependent territories”):  Anguilla  Bermuda  British Antarctic Territory  British Indian Ocean Territory  Cayman Islands  Falklands Islands  Gibraltar  Montserrat  Pitcairn, Henderson, Ducie and Oeno Islands  St Helena and Dependencies (the Dependencies are Ascension Island and the Tristan da Cunha Group)  South Georgia and the South Sandwich Islands  The Sovereign Base Areas of Akrotiri and Dhekelia  Turks and Caicos Islands  Virgin Islands

4.7.58 “by operation of law” –

Do not say this but specify the actual provision.

4.7.59 “competent authority”-

This is insufficient if there is no clear indication who this is105.

4.7.60 EU expressions –

For guidance on expressions used in EU instruments and on EU and EEA terms see paragraphs 6.1 and 6.4 of DExEU’s guidance on Implementing European law which includes advice on the footnoting of EU legislation, available on LION here:

104 See also the JCSI’s 7th Report of Session 2005-6, in relation to S.I. 2005/1992.

105 See the JCSI’s 24th Report of Session 2001-02, paragraph 8. 101

https://lion.governmentlegal.gov.uk/the-law/legal- topics/european/Guidance%20on%20EU%20Law/Implementing%20European%20 Law.aspx.

4.7.61 “may” – It should be remembered that “may” can have a discretionary meaning, but can also be used as opposed to “may not”. The formula “No person may” can be used in drafting offences, where “No person shall” or “A person shall not” was previously used.

4.7.62 Numbers or amounts –

Take care when saying something is “greater or less than” X to include X itself; greater than or equal to or less than or equal to are possibilities. Alternatively you could say “not less than” or “not greater than”; also check the point in any table or list of figures you are given.

4.7.63 “On/by” –

The JCSI106 drew attention to a provision in an instrument defining ‘ewe’ as meaning a “female sheep which is at least one year old or has lambed on 1st January 2001” What was meant was a sheep which had lambed no later than 1st January 2001. The formulations “on or after” or “on or before” are to be preferred to “from and including” and “until”.

4.7.64 Periods of time –

When computing periods of time note that if you use “before” or “after” a particular day you exclude the day itself. However “from” a certain day is ambiguous as it may or may not include the day specified, so it is better to use “after” rather than “from”. Alternatively you could use “a period of X days beginning with/ ending with”.

4.7.65 Primary legislation -

Making a regulation expressly subject to primary legislation expressly invites the criticism that it is unnecessary and misleading - the latter because it suggests that without the provision the legal position might be otherwise107.

4.7.66 Pronouns –

Use the noun if there is any ambiguity in using the pronoun e.g. “if the purchaser notifies the vendor of their intention to purchase the property, they must deliver to the Registrar all documents relating to the property which are in their possession” would

106 See12th Report of Session 2000-01, paragraph 5.

107 See the JCSI’s 32nd Report of Session 2001-02, paragraph 4. 102

be clearer if it read “if the purchaser notifies the vendor of an intention to purchase the property, the vendor must deliver to the Registrar all documents relating to the property which are in the vendor’s possession.”.

4.7.67 “Pursuant to”, “for the purposes of”, “in accordance with” and “as the case may be” –

Be careful when and how you use these phrases; the JCSI108 said that valuations should have been referred to as made “for the purposes of” a section not “pursuant to” it; they have also said “as the case may be” added nothing in the context.

4.7.68 “Subject to” –

Check this is the real meaning. If the JCSI think it is not necessary and casts doubt on the meaning and effect they will report it. It is only called for where one proposition derogates from another e.g.

“A. Subject to B, no person may come to the office dressed in blue.

B. A person may come to the office wearing a blue hat.” is correct, but

“A. Subject to B, no person may come to the office dressed in blue.

B. No person may come to the office dressed in red.” Is incorrect.

4.7.69 Times of day -

Note the point in para 1 of the JCSI 12th Report for 2005/6 that 12pm is not 12 noon since pm (post meridiem) means afternoon (i.e. twelve hours after noon, which is midnight!). If you want to refer to 12 noon say “noon”, not 12 pm”.

4.7.70 ‘without notice’ –

Do not use as a synonym for ‘forthwith’, which means as soon as is reasonably practicable.

108 See its 32nd Report of Session 1999-2000. 103

ANNEX 1

The Interpretation Act 1978 – Provisions relevant to SIs 1. The Interpretation Act 1978 has been mentioned in several places in this Guidance. This annex brings together the various provisions which are relevant for instruments.

2. Section 23 applies the Act, apart from sections 1, 2, 3 and 4(b), to instruments made since 1 January 1979 (the date on which the Interpretation Act 1978 came into force) unless the contrary intention appears and, to a very limited extent, to older instruments.

Section 4(a): Time of commencement 3. This provision has already been mentioned in paragraph 2.15.7. It provides that where provision is made for an Act or a provision of an Act to come into force on a particular day, it does so at the beginning of that day. So if an instrument is expressed to come into force on the day it is made it will (in the absence of any other provision) be retrospective.

Section 5, Definitions 4. Under section 5 all the terms in Schedule 1, which has been amended on several occasion since 1978, have the meanings given to them unless the contrary intention appears. Note in particular:

a) “British Islands” means the United Kingdom, the Channel Islands and the Isle of Man;

b) “the Communities”, “the Treaties” or “the Community Treaties” and other expressions defined by section 1 of and Schedule 1 to the European Communities Act 1972 have the meanings prescribed by that Act;

c) “enactment” does not include an enactment comprised in, or an instrument made under, an Act of the Scottish Parliament;

d) “land” includes buildings and other structures, land covered with water, and any estate interest, easement, servitude or right in or over land;

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e) “month” means calendar month;

f) “person” includes a body of persons corporate or unincorporate. So it is superfluous to refer to a “person or company” since “person” covers both and the JCSI has been critical of using the expression “natural or legal person” where “person alone will do”118. If you want to exclude companies or other bodies corporate either disapply the definition of person in the 1978 Act or use a different term such as “individual”.

g) “Secretary of State” means one of Her Majesty’s Principal Secretaries of State. This means that where a function is vested in “the Secretary of State” without further specification, the entrusting (by the Prime Minister) of responsibility for exercising the function to a different Secretary of State can be effected administratively without needing a Transfer of Functions Order. Note that the term “one of” displaces the section 6 provision that the singular includes the plural.

h) “the standard scale” has already been mentioned in paragraph 4.4.8(e) and is used for fines or penalties triable only summarily. “Statutory maximum” is used for fines or penalties on summary conviction where the offence is triable either way. There is also a definition of “financial year” but it is for very limited purposes. 5. Note also that other Acts can contain definitions of general application, e.g. Section 1 of the Fishery Limits Act 1976 which (subject to qualifications) provides a definition of “British fishery limits” for the purposes of all statutes relating to sea fishing and whaling and Section 1 of the Territorial Sea Act 1987 which (subject to qualifications) defines territorial sea for the purposes of all legislation.

Section 7: References to service by post 6. This provides that where an Act authorises or requires any documents to be served by post (whether “serve”, “give”, “send” or any other expression is used) then, unless the contrary intention appears, the service is deemed to be effected by properly addressing, pre-paying and posting a letter containing the document. Unless the contrary is proved the service is deemed to have been effected at the time at which the letter would be delivered in the ordinary course of post.

118 13th Report of Session 1997-98, paragraph 5. 105

7. Hence if you prove that you properly addressed, pre-paid and posted the letter you don’t have to prove that it has been received to demonstrate service. If the intended recipient denies having ever received the letter, the burden is on him to demonstrate that. 8. It is of course possible to have some different provision in an instrument (for example that service shall be treated as having been effected on the “second working day after posting the notice by first class post”) but care needs to be taken in framing any such provision109.

Section 11: Construction of subordinate legislation 9. This has already been mentioned in paragraphs 3.9.8(d) and 4.1.10. This section provides that where an Act confers power to make subordinate legislation, expressions used in that legislation have, unless the contrary intention appears, the meaning which they bear in that Act.

10. Note however, that where there is more than one source of power, section 11 will only apply to provisions whose source of power can readily be deduced, i.e. from the preamble.

Section 12: Continuity of powers and duties 11. Under section 12(1) where an Act confers a power or imposes a duty, unless the contrary intention appears the power can be exercised or the duty performed from time to time as occasion requires. 12. In general, therefore, instruments can be made and remade as circumstances require but an example where the presumption in section 12(1) can be rebutted concerns Commencement Orders (see paragraph 4.7.2(f)). These have been described as a power to pull a trigger which, once pulled ceases to have any effect. Another example might be a power by order to transfer property which, once the property has been transferred, cannot be exercised again.

Section 13: Anticipatory exercise of powers 13. Section 13 provides - “Where an Act which (or any provision of which) does not come into force immediately on its passing confers powers to make subordinate

109 See the JCSI’s 11th Report of Session 2003-4, paragraph 3; 31st Report of Session 2003-4, paragraph 1. 106

legislation, or to make appointments, give notices, prescribe forms or do any other thing for the purposes of the Act, then unless the contrary intention appears, the power may be exercised and any instrument made thereunder may be made so as to come into force, at any time after the passing of the Act so far as may be necessary or expedient for the purpose – (a) of bringing the Act or any provision of the Act into force; or (b) of giving full effect to the Act or any such provision at or after the time when it comes into force”. 14. Section 13(a) generally applies to Commencement Orders. If an Act with 10 sections comes into force in accordance with a Commencement Order under section 10, section 10 does not have to come into force on Royal Assent (although in many Acts any section making provision for Commencement Orders does, in fact, come into force on Royal Assent). Section 13(a) allows you to make the Commencement Order even though section 10 is not in force. 15. Section 13(b) permits an anticipatory exercise of powers which is necessary or expedient for the purpose of giving full effect to the Act or of some provision of it when it comes into force. For example if section X of an Act provides: “every maintained school must have a governing body, being a corporate body constituted in accordance with regulations made by the Secretary of State” then section 13 would allow the regulations to be made before section X comes into force. The regulations will give full effect to section X when that section comes into force. Section X simply won’t work unless regulations have been made and are in force110. 16. At the other end of the scale, problems have arisen where the regulation making power is completely free standing. Suppose that section Y of an Act provides:

110 But see the JCSI’s 1st Report of Session 2010-11 in relation to S.I. 2010/575, which the JCSI considered to be of doubtful vires. The instrument was purportedly made in exercise of an order-making power in one Act that had been inserted by a provision of another Act that was not in force at the time the instrument was made. The JCSI considered that the instrument was neither necessary nor expedient for the purpose of giving full effect to the amendments when they come into force: instead, it derogated from the effect of those amendments. 107

“Regulations may prescribe nutritional standards which must be complied with in connection with the provision of school lunches.” If you make these free standing regulations before commencing section Y the likelihood is that the JCSI would report the regulations for doubt as to vires. In the past they have expressed views on the limited purposes for which section 13 permits an instrument to be made before the enabling power is in force.111 It should be noted that the case law is arguably fairly liberal112.

17. A practice sometimes adopted to avoid disputes over section 13 is to commence provisions for the purpose only of making instruments under them at an early stage, assuming of course there is power to bring provisions into force for particular purposes only. In the case of free standing powers of the type mentioned in paragraph 16 above it would, of course, simply be a case of commencing the provisions before the regulations are made. In addition sometimes the enabling Act specifically provides that any power to make subordinate legislation comes into force early, say on Royal Assent. 18. Paragraph 2.3.2 referred to the need to wait until the instrument enlarging the powers is in force. The JCSI has dismissed an attempt to rely on section 13 of the 1978 Act to enlarge the powers and exercise the powers as enlarged in one instrument123. 19. Where the point at issue is when a draft of guidance can be laid before Parliament (in circumstances where this is required by the enabling power) the exchange of correspondence “timing for laying draft guidance” on the LION Secondary Legislation topic site is worth looking at: https://lion.governmentlegal.gov.uk/the-law/legal-topics/secondary- legislation/Parliamentary%20Scrutiny%20committees/Advice%20and% 20correspondence.aspx?page=1&dateFilter=desc&itemsPerPage=10.

111 See the 11th Report of Session 1987-88 and the 8th Report of Session 1988-89. 112 A recent e-mail from Counsel (Legislation) to a DTI lawyer discussed whether section 13 of the Interpretation Act 1978 allows an exempting instrument (ie containing the exemption from the need to have a licence) into force on the same date as the prohibition on operating without a licence. He referred to Usher v Barlow [1955] Ch 255 relating to the predecessor of section 13 where it seemed that, on balance, the judges favoured the view that an exempting power that seemed a clear part of the statutory code was within the section 13 ambit. (The alternative, more cautious, approach would be early commencement of the power to make the exempting instrument.) 123 21st Report of Session 1993-4. 108

Section 14 20. Section 14 provides:

“Where an Act confers powers to make – a) rules, regulations or bylaws or b) Orders in Council, orders or other subordinate legislation made by statutory instrument it implies, unless the contrary intention appears, a power, exercisable in the same manner and subject to the same conditions or limitations, to revoke, amend or re-enact any instrument made under the power.”. 21. This provision is of particular importance in relation to enabling powers. A power say, to impose requirements for the labelling of food extends to revoking the instrument which does so, even though the revocation removes an existing requirement rather than imposing a new one. Section 14 may also be relevant to the question of vires for sunset clauses (but may not provide a complete answer in all cases). 22. Section 14(a), which includes regulations, applies to any Act passed after 1889. But section 14(b), which includes orders, only applies to Acts passed after 1st January 1979 (section 22(1) and Schedule 2, para 3). Many Acts passed before 1st January 1979 contain their own power to vary or revoke orders and if such a power needs to be relied on it should be cited in the preamble.

Section 15: Repeal of repeal 23. Section 15 provides: “Where an Act repeals a repealing enactment, the repeal does not revive any enactment previously repealed unless words are added reviving it”. 24. This provision is relevant to revocations. Where provision B revokes provision A and then provision C revokes provision B the second revocation does not revive provision A unless revival is specifically provided for.

Section 16: General savings 25. Section 16 preserves from the effect of repeal transactions which have occurred before repeal.

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26. Under section 16, in the absence of a contrary intention, a repeal does not:

a) “revive anything not in force or existing when the repeal takes effect; b) affect the previous operation of the enactment repealed or anything duly done or suffered under that enactment;

c) affect any right, privilege, obligation or liability acquired, accrued or incurred under that enactment;

d) affect any penalty, forfeiture or punishment incurred in respect of any offence committed against that enactment;

e) affect any investigation, legal proceeding or remedy in respect of any such right, privilege, obligation, liability, penalty, forfeiture or punishment.” 27. This provision is relevant to the question as to whether any saving provision is needed in an instrument which revokes or amends a previous one (see also paragraph 4.4.8).

Section 17: Repeal and re-enactment 28. Section 17(2) provides: “Where an Act repeals and re-enacts, with or without modification, a previous enactment then, unless the contrary intention appears – (a) any reference in the other enactment to the enactment so repealed shall be construed as a reference to the provision re- enacted; (b) insofar as any subordinate legislation made or other thing done under the enactment so repealed, or having effect as if so made or done, could have been made or done under the provision re-enacted it shall have effect as if made or done under that provision”. 29. Section 17(2)(b) has to be borne in mind in cases where instrument Y revokes and re-enacts instrument X, possibly with amendments, in deciding whether it is necessary, for example, to provide in instrument Y that Acts done under instrument X are treated as having been done under instrument Y. If section 17(2) applies then such provisions would not be necessary. 30. The problem may well be in deciding, except in the cases where the old law is re-enacted in exactly the same terms, whether instrument Y does indeed re-enact instrument X with modifications, as opposed to being 110

something completely different. Modifications can involve significant differences in substance and can include an extension or narrowing of the original instrument. At some stage, however, a radical extension may go beyond a modification and become something wholly new. 31. If there is doubt as to whether section 17 applies, the usual course is to include express transitional or saving provisions (in instrument Y in the example above).

Section 20: References to other enactments 32. Section 20(1) “provides that where an Act describes or cites a portion of an enactment by referring to words, sections or other parts from or to which (or from and to which) the portion extends the portion described or cited includes the words, sections or other parts referred to unless the contrary intention appears.” 33. Accordingly when you use the words such as “from regulation 4 to regulation 8” you do not have to say “inclusive”. Regulations 4 and 8 are included automatically. 34. Section 20(2) is trickier. Where an Act refers to an enactment, the reference, unless the contrary intention appears, is a reference to the enactment as amended. But section 20(2) is silent as to whether “the enactment as amended” means as amended at the time of the reference or as amended at any future time. 35. For example: 1994: Act A passed 1995: Act B amends Act A 1996: SI refers to Act A At this stage the presumption under section 20(2) is that the reference in the SI to Act A is as amended by Act B 2000: Act D further amends Act A At this stage the above presumption still applies. There is, however, no similar presumption that the reference in the SI is now to Act A as subsequently amended by Act D. 36. The first highlighted proposition follows from section 20(2). The second stems from Williams v Lewis [1982] STC141 and is the collective view of the Office of the Parliamentary Counsel. The argument is essentially this in the case of Acts: why should Parliament when referring to an Act, be 111

presumed to have included future amendments which nobody at the time could possibly known about? Translating this to instruments the point is why should a Minister when making an instrument be presumed to have included future amendments which nobody at the time could possibly known about and would he have had the vires to do so? 37. This does not mean that a reference in the instrument must always be construed without the amendment made by Act D. The point has to be determined as a matter of construction of the instrument and the amending Act D including consideration as to whether it would be intra vires for the instrument to refer to Act A as including a future amendment made by Act D113.

Section 20A: References to EU instruments 38. Section 20A (inserted by section 25 of the Legislative and Regulatory Reform Act 2006) provides “Where an Act passed after the commencement of this section [ 8 January 2007] refers to an EU instrument that has been amended, extended or applied by another such instrument, the reference, unless the contrary intention appears, is a reference to that instrument as so amended, extended or applied.” See the DExEU guidance on Implementing European law on the use of this section, available on LION here:

https://lion.governmentlegal.gov.uk/the-law/legal- topics/european/Guidance%20on%20EU%20Law/Implementing%20Eu ropean%20Law.aspx.

ANNEX 2

Specimen timetables for negative and affirmative instruments Timetable for a negative resolution instrument

Note : this template timetable identifies some of the steps relevant for timetabling purposes only; it does not set out all the things which have to be done in the course of preparing an SI. In addition, this template is not suitable for an affirmative resolution S.I, or for an Order in Council; different procedures apply in those cases. A number of Departments have bespoke templates.

113 See further Craies on Legislation 8th edition, 2004, paragraphs 22.1.23 to 22.1.25 and the letter dated 6 February 2004 from Stephen Laws at: http://www.knowledgenetwork.gsi.gov.uk/lion2/areapres.nsf/70601a68a73227d480256e8c004bca59/40c9ab1ece6 c0 00980257600004aef8f?OpenDocument.. 112

NOTE FOR LAWYERS ON PARLIAMENTARY COUNSEL (NOT TO APPEAR IN THE TIMETABLE OF A PARTICULAR SI): References to Parliamentary Counsel should be removed from the template if the SI does not amend primary legislation, unless by agreement they are vetting the instrument. If the SI is to be vetted by them and time is pressing, Parliamentary Counsel may be able to consider the draft at the same time as the 2nd lawyer check is conducted. The timetable below will require adaptation if Parliamentary Counsel are to draft the whole or any part of the instrument

TEMPLATE TIMETABLE FOR PRODUCING AN S.I. (BY NEGATIVE RESOLUTION PROCEDURE)

TIMETABLE TO BE KEPT UNDER REVIEW BY CLIENT AND LEGAL

STAGE ACTIONS Usual length of the stage and date when the stage ends It may be possible for certain stages to be processed more quickly in which case time is gained, but the timetable should allow for the worst case scenario. 1 Receipt of initial instructions from client.

2 Discuss timetable with client (if possible), and 1 week agree dates for timetable stages so that client can produce a specific timetable. Lawyer sends Explanatory Memorandum template, note on completion of the Explanatory Memorandum Template and Cabinet Office advice on Transposition Notes to client (if client is new to SI work), forewarns Parliamentary Counsel where approval will be required for amendments to primary legislation or if SI is to be vetted by them.

Lawyer should discuss the better regulation requirements with the client and the timetable for obtaining policy clearance. See paragraph 1.7.4 of the GLS Statutory Instrument Drafting Guidance. NB any standstill period (for example under the Technical Standards Directive).

Lawyer sends the timetable to any lawyers who will be carrying out any checking of the draft so that they are aware of the likely date when checking will be required.

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3 Preparation of the 1 draft Preparation of the 1 draft

Lawyer studies the client’s instructions; researches the relevant law and underlying statutory framework; considers any devolution, human rights, European aspects etc; and seeks 2- 6 weeks clarification from client on any areas of (but variable uncertainty. depending on the nature and complexity of the SI; Client provides clarification within two weeks of the period may need to be receipt of the lawyer’s questions/queries. extended if policy clearances are being

obtained in parallel) Lawyer prepares first exploratory draft and sends to client with comments. 4 Refining the 1st draft Refining the 1st draft

Client and lawyer meet and/or exchange correspondence on the draft and lawyer’s comments. 3 weeks – 3 months When the lawyer has a query or question, client (but variable; see above re provides clarification within two weeks of receipt policy clearances) of the lawyer’s questions/queries.

Draft is amended in response to the client/lawyer correspondence and/or discussions and sent to client for comment.

This is an on-going process and will be repeated as often as necessary. However, it should end by the date set out opposite.

By the same date, client also prepares Explanatory Memorandum and Transposition Note (if applicable), and passes them onto the lawyer.

If there is to be an Impact Assessment it is helpful for the lawyer to see it at this stage or earlier.

5 Draft Explanatory Memorandum and Transposition Note (if applicable) cleared by 1 week lawyer, if these have not already been cleared by lawyer in stage 4. Where appropriate revisions made and agreed with client. Comments on Impact Assessment made, if applicable. 6 Draft SI checked by 2nd lawyer who also considers the Explanatory Memorandum and 2 weeks Transposition Note (if applicable). 2nd lawyer should be provided with a copy of the Impact Assessment, if there is one.

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7 Revisions suggested by the 2nd lawyer are discussed, incorporated and agreed with client. 1- 2 weeks

If a 3rd lawyer is to look at the draft and there are any significant points of difficulty these may usefully be discussed with 3rd lawyer, though it is not usually necessary to carry out a full 3rd lawyer check of the draft at this stage. st st

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8 Parliamentary Counsel considers the draft (if the SI at least 4 weeks is to be cleared with them). 9 Comments made or revisions suggested by 1 week Parliamentary Counsel are discussed, and any changes incorporated and agreed with the client.

Stages 8 and 9 may need to be repeated until Parliamentary Counsel is able to approve the draft.

Consultation on a regulatory SI cannot commence until the Regulatory Policy Committee has considered the proposal and the Reducing Regulation Committee has cleared it (see paragraph 1.7.4 of the GLS Statutory Instrument Drafting Guidance). 10 PUBLIC CONSULTATION PERIOD and concurrent Standstill period while notified to the Up to 12 weeks European Commission where applicable. (if required) 11 Client considers consultation results and, if necessary, provides the final instructions on any 2 weeks revisions.

If necessary, client finalises the Explanatory Memorandum, including details of the consultation, the Transposition Note and Impact Assessment.

12 If necessary, revised draft produced and agreed with client. 1 week minimum

If there is to be a 3rd lawyer checking the SI then forewarn the 3rd lawyer about the forthcoming check. 13 If a revised draft has been produced, the 2nd 2 weeks lawyer who checked the draft checks the revised draft, with the Explanatory Memorandum and Transposition Note and Impact Assessment (if applicable) to hand. It is helpful if the revisions made to the SI since the earlier check are highlighted. 14 If necessary, revisions suggested by the 2nd 1 week (but could be more if lawyer are discussed, incorporated and agreed stages 8 and 9 have to be with client. repeated)

If any changes relate to provisions previously approved by Parliamentary Counsel, send the revised draft to Parliamentary Counsel (and if necessary repeat stages 8 and 9 until the revised draft is approved).

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15 Any 3rd lawyer check is conducted. The 3rd lawyer should have the Explanatory Memorandum and 3 weeks minimum Transposition Note (if applicable).

If they have not done so before, client starts finalising the submission to the Minister so that it is ready to be cleared by the lawyer once the

suggestions of any other lawyers checking the draft have been incorporated.

Some Ministers like to have advance sight of SIs which they are going to be asked to sign later. Client should check the position with the relevant Minister’s Office.

16 Revisions suggested by the 3rd lawyer are discussed, incorporated and agreed with the client 1 week minimum (plus a (and, if necessary, sent to Parliamentary counsel further 6 – 7 weeks for and cleared by them). policy clearances.)

SI cannot be made until the Regulatory Policy Committee has given the proposal further consideration and the Reducing Regulation Committee has cleared it for making (See paragraph 1.7.4 of the GLS Statutory Instrument Drafting Guidance). If the SI is to be submitted electronically, which should be the case wherever possible, even if the SI is not on the SI template, move to stage 17. If the SI cannot be submitted electronically move to stages 17(a) and (b) and skip stage 17. *17(a) Draft checked one final time and sent to TSO for proof printing.

Lawyer clears the submission to the Minister, the Explanatory Memorandum and Transposition Note (if applicable). If there is one, the Impact Assessment will be attached. 2- 3 weeks *17(b) Proofs returned and proof-read. May need a number of exchanges with TSO before the proof print is correct.

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17 If the draft is to be submitted electronically, the 2 weeks lawyer checks that the SI validates using the online validation portal. TSO cannot accept it for printing and publication unless it validates successfully. Any errors which you can’t resolve can be sent to the SI Helpdesk [email protected]

It is strongly advisable to start validation early in the drafting process and check successive drafts as you go along - this can save a lot of panic and last minute rush!

The lawyer alerts the Department’s SI Processing Unit to the forthcoming SI.

Lawyer clears the submission to the Minister, the Explanatory Memorandum and Transposition Note (if applicable). If there is one the Impact Assessment will be attached.

18 If the SI is to be submitted electronically, client 1 week prepares an electronic document combining Explanatory Memorandum and Transposition Note (if applicable), and sends it to the lawyer. The client also sends the lawyer an electronic copy of the final version of the submission.

At the same time, client prepares paper folder containing submission to Minister, Explanatory Memorandum, Transposition Note if applicable and any Impact Assessment. The client sends it to the lawyer. Lawyer adds the (carefully checked) signature version of SI to folder (placed in a folder so it is not punched with holes). Lawyer initials at the top of submission or otherwise indicates this has been done.

Lawyer should ensure the date for coming into force is inserted into the paper and electronic copies of the SI before signing. Note at least 8 days should be allowed between making and laying, and at least 21 days between laying and coming into force.

Lawyer sends the paper folder to the Department’s SI processing unit.

19 The folder containing the paper copies of the submission, SI, Impact Assessment and

Explanatory Memorandum and Transposition Note (if applicable) is submitted to the Minister by the Department’s SI processing unit for signature of the SI and Impact Assessment and approval of the Explanatory Memorandum. 1 week minimum (Ministers often prefer 2 Client sends electronic copies of documents to all weeks) Ministers 118

20 Minister signs the SI and Impact Assessment; notes Explanatory Memorandum and If another Transposition Note, and returns them to the signature is Department’s SI processing unit. required: 3-5 weeks

If the SI is to be signed by a Minister in another NB In August allow 5 weeks Department clients should ensure the other to obtain Treasury consent. Department has been forewarned and that their Minister will be content to sign the SI in due course, the Department’s SI processing unit passes the SI onto them, and the other Minister signs the SI.

21 SI, document combining Explanatory Memorandum and Transposition Note (if applicable) and Impact Assessment are sent by the Department’s SI processing unit to National Archives for registration and numbering.

22 SI and the accompanying Explanatory Allow 8 working days Memorandum laid before Parliament. minimum from being “made” to “laid” Copies of the Explanatory Memorandum sent to the Secondary Legislation Scrutiny Committee by the Department’s SI processing unit.

23 On receipt of the published version, lawyer Receipt of the published checks it for printing errors version

24 SI comes into force. Not less than 21 days after it was laid before Parliament.

TOTAL TIME: Guideline of 22 weeks from instructions to coming into force, for the very simplest of SIs, if it is transmitted electronically, does not amend primary legislation and there is no public consultation and/or ‘Standstill’ requirement. Potentially 61 weeks or more from instructions to coming into force, if it is a complex instrument which requires proof prints and 3 months of public consultation/‘Standstill’ period.

* These stages do not apply if the instrument is to be submitted to TSO electronically. Unless the Standstill period is extended by the European Commission.

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Timetable for producing an affirmative resolution instrument

Note : in relation to an affirmative draft S.I, (i.e. an SI which is laid in draft and cannot be made until it has been approved by Parliament or the House of Commons) this template timetable identifies some of the steps relevant for timetabling purposes only; it does not set out all the things which have to be done in the course of preparing an SI. In addition, this template is not suitable for a negative resolution SI or for an Order in Council; different procedures apply in those cases. A number of Departments have bespoke timetables.

NOTE FOR LAWYERS ON PARLIAMENTARY COUNSEL (NOT TO APPEAR IN THE TIMETABLE OF A PARTICULAR SI): References to Parliamentary Counsel should be removed from the template if the SI does not amend primary legislation, unless by agreement they are vetting the instrument. If the SI is to be vetted by them, and time is pressing, Parliamentary Counsel may be able to consider the draft at the same time as the 2nd lawyer check is conducted. The timetable below will require adaptation if Parliamentary Counsel are to draft the whole or any part of the instrument

TEMPLATE TIMETABLE FOR PRODUCING AN S.I. (BY AFFIRMATIVE RESOLUTION PROCEDURE)

TIMETABLE TO BE KEPT UNDER REVIEW BY CLIENT AND LEGAL

Lawyer should discuss the better regulation requirements with the client and the timetable for obtaining policy clearance. See paragraph 1.7.5 of the GLS Statutory Instrument Drafting Guidance. NB any standstill period (for example under the Technical Standards Directive).

Lawyer sends the timetable to any lawyers who will be carrying out any checking of the draft so that they are aware of the likely date when checking will be required. 120

3 Preparation of the 1 draft Preparation of the 1 draft

obtained in parallel) Lawyer prepares first exploratory draft and sends to client with comments. 4 Refining the 1st draft Refining the 1st draft

Draft is amended in response to the client/lawyer correspondence and/or discussions and sent to client for comment.

This is an on-going process and will be repeated as often as necessary. However, it should end by the date set out opposite.

By the same date, client also prepares Explanatory Memorandum and Transposition Note (if applicable), and passes them onto the lawyer.

If there is to be an Impact Assessment it is helpful for the laywer to see it at this stage or earlier.

5 Draft Explanatory Memorandum and Transposition Note (if applicable) cleared by 1 week lawyer; if these have not been cleared by lawyer in stage 4. Where appropriate revisions made and agreed with client. Comments on Impact Assessment made, if applicable. 6 Draft SI checked by 2nd lawyer who also considers the Explanatory Memorandum and Transposition 2 weeks Note (if applicable). 2nd lawyer should be provided with a copy of the Impact Assessment, if there is one.

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7 Revisions suggested by 2nd lawyer are discussed, incorporated and agreed with client. 1 2 weeks

If a 3rd lawyer is to look at the draft and there are any significant points of difficulty these may usefully be discussed with the 3rd lawyer, though it is not usually necessary to carry out a full 3rd lawyer check of the draft at this stage. st st

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8 Parliamentary Counsel considers the draft. (if the at least 4 weeks SI is to be cleared with them). 9 Comments made or revisions suggested by 1 week Parliamentary Counsel are discussed, and any changes incorporated and agreed with the client.

Stages 8 and 9 may need to be repeated until Parliamentary Counsel is able to approve the draft.

If necessary, client finalises the Explanatory Memorandum, including details of the consultation, and the Transposition Note and Impact Assessment.

12 If necessary, revised draft produced and agreed with client. 1 week minimum

If there is to be a 3rd lawyer checking the SI then forewarn the third lawyer again about the forthcoming check. 13 If a revised draft has been produced the 2nd lawyer 2 weeks who checked the draft checks the revised draft, with the Explanatory Memorandum and Transposition Note and Impact Assessment (if applicable) to hand. It is helpful if the revisions made to the SI since the earlier check are highlighted. 14 If necessary, revisions suggested by the 2nd 1 week (but could be more if lawyer are discussed, incorporated and agreed stages 8 and 9 have to be with client. repeated)

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15 Any 3rd lawyer check is conducted. The 3rd lawyer should have the Explanatory Memorandum, and Transposition Note (if applicable). 3 weeks minimum

If they have not done so before, client starts finalising the submission to the Minister so that it is ready to be cleared by the lawyer once the suggestions of any other lawyers checking the draft have been incorporated.

Some Ministers like to have advance sight of SIs which they are going to be asked to sign later. Client should check the position with the relevant Minister’s Office.

16 Revisions suggested by the 3rd lawyer are discussed, incorporated and agreed with the client 1 week minimum (and, if necessary, sent to Parliamentary counsel and cleared by them).

SI cannot be laid until the Regulatory Policy Committee has given the proposal further consideration and the Reducing Regulation Committee has cleared it for laying. (See paragraph 1.7.4 of the GLS Statutory Instrument Drafting Guidance). If the SI is to be submitted electronically, which should be the case wherever possible, even if the SI is not on the SI template, move to Stage 17. If the SI cannot be submitted electronically move to stages 17(a) and (b) and skip stage 17. *17(a) Draft checked one final time and sent to TSO for proof printing.

Lawyer clears the submission to the Minister (checking that they are content that the SI be laid) and the Explanatory Memorandum including the Transposition Note, if applicable. If there is one, the Impact Assessment will be attached. 2- 3 weeks

Lawyer sends the draft SI to the JCSI’s legal adviser for informal consideration in advance of JCSI consideration (by email to [email protected]). *17(b) Proofs returned and proof-read. May need a number of exchanges with TSO before the proof print is correct.

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It is strongly advisable to start validation early in the drafting process and check successive drafts as you go along - this can save a lot of panic and last minute rush!

The lawyer alerts the Department’s SI processing unit to the forthcoming SI.

Lawyer clears the submission to the Minister (checking Minister is content that the SI be laid), the Explanatory Memorandum and the Transposition Note if applicable. If there is one, the Impact Assessment will be attached.

Lawyer sends the draft SI to the JCSI’s legal adviser for informal consideration in advance of JCSI consideration (by email to [email protected]).. 18(a) Consider any comments received from the JCSI’s 2 weeks legal adviser, discuss with client (and, if necessary, Parliamentary counsel), and amend SI if necessary and resubmit if appropriate

At the same time, client prepares paper folder containing the “content to lay” submission to Minister, Explanatory Memorandum, Transposition Note if applicable and any Impact Assessment.The client sends it to the lawyer. Lawyer adds the (carefully checked) latest version of SI to folder. Lawyer initials at the top of submission or otherwise indicates this has been done.

Lawyer sends the paper folder to the Departments’s SI processing unit.

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19 The folder containing the paper copies of the submission, SI, Impact Assessment and

Explanatory Memorandum and Transposition Note (if applicable) are submitted to the Minister by the Department’s SI processing unit for approval of laying the SI, signature of the Impact Assessment and approval of the Explanatory 1 week minimum Memorandum. (Ministers often prefer 2 weeks) Client sends electronic copies of documents to all Ministers 20 Minister signifies approval to laying the SI and signs the Impact Assessment; notes Explanatory Memorandum and Transposition Note, and returns them to the Department’s SI processing unit. The Minister does not sign the SI at this stage.

If the SI is to be signed by a Minister in another Department, clients should ensure the other Department has been forewarned and that their Minister will be content to approve the SI in due course.

21 SI, document combining Explanatory Memorandum, and Transposition Note (if

applicable) and any Impact Assessment sent by

the Department’s SI processing unit to National Archives.

22 SI and the accompanying Explanatory SI will be considered on a Memorandum and any Impact Assessment are Wednesday Committee laid before Parliament. meeting if it has been laid by the Friday 12 days Copies of the Explanatory Memorandum sent to previously. But if sent to the the Secondary Legislation Scrutiny Committee by JCSI’s legal adviser in the Department’s SI processing unit. advance then the SI can normally be considered at a NB a resolution to approve may not be moved until Wednesday Committee a report has been received from the JCSI. meeting if it has been laid no later than the Monday of the preceding week 23(a) Parliamentary/policy colleagues arrange preparation of motion to approve the SI.

Parliamentary/policy colleagues arrange time for debate.

Motion moved, debated and hopefully Parliament approves.

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23(b) Submission for the SI to be signed is sent to the 1 week Minister.

If the SI needs to be signed by a Minister in If another another Department, the Department’s SI signature is processing unit then send the SI to be signed by required: 3-5 weeks the other Minister.

(Ideally the SI is signed by both Ministers on the same day, but in any event the last signature will NB In August allow 5 weeks to obtain Treasury consent. be the made date.)

The SI comes into force on such date as it provides (e.g. the day after it is made) 23(c) The SI is sent to National Archives for registration, numbering and reprinting (including the removal of the headnote and “Draft” from the banner)

24 On receipt of the published version, lawyer Receipt of the published checks it for printing errors version

TOTAL TIME: Guideline of at least 26 weeks (plus time for arranging debate) from instructions to coming into force, for the very simplest of SIs, if it is transmitted electronically, does not amend primary legislation and there is no public consultation and/or ‘Standstill’ requirement. Potentially at least 67 weeks or more (plus time for arranging debate) from instructions to coming into force, if it is a complex SI which requires proof prints and 3 months of public consultation/‘Standstill’ period.

* These stages do not apply if the SI is to be submitted to TSO electronically. Unless the Standstill period is extended by the European Commission.

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INDEX References below are to paragraph numbers.

Administrative Justice and Tribunals Council ...... 4.1.14(h), 2.8.4, 2.3.3 Affirmative resolution instruments dates ...... 3.3.3, 4.2.4(b) debate, need for ...... 2.2.3 a different procedures ...... 2.4.3 laying, when ...... 2.14.5 preamble ...... 4.1.13(b) showing to House advisers and consultation with ...... 2.2.4, 1.6.2(n) year changing between approval and making ...... 3.2.5 Ambulatory references ...... 4.1.17 Amending secondary legislation ...... 4.4.18 active or passive words of amendment ...... 4.4.22 amending before coming into force ...... 2.10.4, 4.4.21 citation of powers used in pre-1 January 1979 Acts ...... 4.1.8 formulae for ...... 4.4.23 gender of Secretary of State ...... 4.7.29, 4.4.20 headings, amendment of...... 4.4.24(b) implied power to amend, Interpretation Act 1978 ...... Annex 1 (20) numbering, of inserted provisions...... 4.4.24(d), (f) of instruments ...... 2.12.6, 3.2.2, 4.7.2(a) punctuation, amendment of ...... 4.4.23(b) revocation ...... 4.4.25 spent instruments...... 4.4.21 splitting one provision into two...... 4.4.24(e) title ...... 3.2.2 typographical errors, amendment of...... 4.4.24(c) use of “omit”, not “delete” ...... 4.4.23(c) Annulment of negative resolution instruments within 40 days ...... 2.4.4(a) Anticipatory exercise of powers...... 2.3.1, 4.7.2(g), Annex 1 (13) consultation provisions, bringing to force ...... 4.7.2(l) JCSI comments on ...... Annex 1 (16) Appeals Application/extent (see also “extent/application”) against enforcement...... 4.7.1 distinction between...... 4.2.7

Better regulation ……………………………………………………1.7.5 Burden of proof appeal provisions against enforcement ...... 4.7.1 JCSI comments on...... 4.6.5(o)

Cabinet Office Guide to Legislative Procedures, web address .... 4.7.2(c) Checking lawyers ...... 1.6.4 check list ...... 1.6.5 final proof reading ...... 2.9.4 Combining parliamentary procedures in SI...... 2.4.6 128

Coming into force of secondary legislation before laying ...... 2.15.7 before making ...... 4.7.43, Annex 1 (3) dates ...... 3.3.1, 3.3.2, 4.2.1 different times for different provisions or purposes……………….4.7.2(g), 3.3.2, 4.2.2 enlarged powers, using when ...... 2.3.2, Annex 1 (18) on day of laying ...... 2.15.7, 4.2.4(c) on day of making ...... 4.2.4(c), 4.2.4(d), 4.7.42, Annex 1 (3) one instrument referring to another ...... 2.7.3(e), 4.2.5 reference to outside publications...... 4.2.3 too early, comments by JCSI or Secondary Legislation Scrutiny Committee 2.15.6 Command papers Explanatory Note ...... 3.9.3 footnotes ...... 4.7.21(g) Commencement orders anticipatory exercise of powers ...... Annex 1(14) consultation provisions ...... 4.7.2(l) coming into force, whether to specify date of ...... 4.7.2(b) less than two months after Royal Assent...... 4.7.2(c) date, basic rule ...... 4.2.1 exercisable once only, presumption ...... 4.7.2(f), Annex 1(12) Explanatory Notes ...... 3.9.9, 3.9.10, 4.7.2 (k) general ...... 4.7.2 numbering of ...... 4.7.2(a) provisions coming into force for particular purposes ...... 4.7.2(g) repeals schedules in primary legislation, commencing...... 4.7.2(m) retrospection ...... 4.7.2(d) revocation or amendment of...... 4.7.2(f) Royal Assent, made on day of...... 4.7.2(e) saving provisions ...... 3.2.3 schedules ...... 4.7.2 (i) title of ...... ………3.2.3 transitional and savings...... 4.7.2 (j) whether duty to make...... 1.5.1(b) Common commencement dates Consolidation Consultation August 2010 guidance...... …2.3.5, 2.3.6 JCSI comments on desirability ...... 4.6.5(q) Administrative Justice and Tribunals Council, with...... 4.1.14 (h), 2.3.3(b), 2.8.4 anticipatory exercise of powers for commencement orders ...... 4.7.2(l) Cabinet Office, code of practice on ...... 2.8.2 commencement of enabling provisions, less than two months after Royal Assent ...... 4.7.2(c) defective ...... 2.8.5 devolution ...... 2.3.4(d), 4.7.11 Ministry of Justice with, for criminal offences ...... 4.4.7, 4.4.8(b), 4.7.18 non-statutory Secondary Legislation Scrutiny Committee ...... 2.8.1 2.8.3 statutory requirements, for ...... 2.3.3(a), 2.3.3(b) Copy-out ...... 1.7.2, 1.7.5(a), 4.7.3, 4.7.4 Correction slips ...... 2.10.2, 2.10.3, 2.10.1(c), 2.9.3 Corrections ...... 2.9.3 Explanatory Note ...... 2.10.1(a) footnote and italic note ...... 2.10.1(b) non publication of defective instrument ...... 2.10.5 providing instruments free of charge ...... 4.6.5(e) preamble ...... 2.10.1(c) revoking or amending previous instrument...... 2.10.4 Criminal offences burden of proof, JCSI comments on...... 4.6.5(o) defences ...... 4.4.8(c)

129 elements of ...... 4.4.8(d) general ...... 4.4.6 human rights ...... 4.4.8(g) liability, need for precision ...... 4.4.4(i), 4.6.5 (f), 4.4.8(f) liability on people, not things ...... 4.4.8(a) liability, companies by ...... 4.4.9 Ministry of Justice clearance ...... 4.4.7, 4.4.8(b), 4.7.18 prosecution, time for bringing proceedings...... 4.4.8(h) standard scale and statutory maximum...... 4.4.8(e), Annex 1(4)(h) strict liability or mens rea...... 4.4.8(b)

Dates ...... 3.3.1 computing periods of time,”after,”from” ...... 4.7.64 “on” or “by” a specified date ...... 4.7.63 Definitions alphabetical order,including references to legislation ...... 4.3.3(a) competent authority...... 4.7.59 EU expressions ...... 4.7.60, 4.3.3(c) enabling Act, use of terms in ...... 4.3.3 (c), 4.1.11 exceptions, by ...... 4.3.3 (f) exhaustive or inclusive ...... 4.3.3 (d) generally ...... …. 4.3.1 Interpretation Act 1978 ...... 4.1.10, 4.4.4(k), 4.3.3 (c), Annex 1(4) and (9) not used in SI ...... 4.3.3 (a) Parliamentary Counsel, list by...... Annex 1(5) preamble, in ...... 4.3.3 (g) references to paragraphs, regulations etc ...... 4.3.3 (i) sensible, need for ...... 4.3.3 (e) substantive obligations, in ...... 4.3.3 (d) “unless the context otherwise requires”...... 4.6.2 (a), 4.3.3 (b) used once in SI when to use...... 4.3.3 (h), 4.3.1 writing, whether include electronic communications...... 4.7.14 Designation Orders ...... 4.1.5 footnotes ...... 4.7.18(b) Devolution consultation ...... 4.7.11, 2.3.4 (d) extent/application of SIs ...... 4.7.8 footnotes ...... 4.7.21 (c) general ...... 4.7.5 guidance on LION ...... 1.7.6(e), 4.7.5, 4.7.10,4.2.6 revocation and, amendment of instruments ...... 4.7.9, 4.7.10 Drafting lawyer number of drafts ...... 2.7.2 role of ...... 1.6.2 Drafting style acronyms and jargon...... 4.4.4 (a) amendments, formulae for ...... 4.4.23 active or passive ...... 4.4.4 (g) conditions/ exceptions/provisos, use of ...... 4.4.4 (f), 4.4.4 (c) double negatives ...... 4.4.4 (d) explanatory provisions...... 4.4.4 (e) foreign and Latin words ...... 4.4.4 (a) liability, need for precision ...... 4.4.4 (i) precedents, use of...... 2.6.1 (d) same expressions for same meaning...... 4.4.4 (j) “shall” and “must” ...... 4.4.5 short sentences ...... 4.4.4 (c) 130

suggestions general, for ...... 2.7.1, 2.6.1, 2.5.5 terms of art, imprecise...... 4.6.5 (m)

EU matters ambiguity, departing from concepts in directives...... 2.5.4 (c) amended EU legislation, references to in SIs...... 4.7.55(c), Annex 1(38) competent authority, definition of...... 4.7.59 criminal offences, need for precision ...... 4.4.8 (f) cross-border rules, need to make adequate provision for ...... 4.6.5 (l) definitions ...... 4.3.4(c), 4.7.60, Annex 1(4)(b) designation orders...... 2.3.3 (d), 4.1.5 footnotes ...... 4.7.21 (b) domestic powers or section 2(2) ECA ...... 1.5.1(d) EEA terms ...... 4.7.60 Explanatory Memorandum ...... 2.17.7 (g) Explanatory Note ...... 3.9.3(e), 3.9.3 (f), 3.9.3 (h), 3.9.3(g) Legislative and Regulatory Reform Act 2006 ...... 4.7.55(c), Annex 1(38) metrication rules ...... 4.4.4 (m) Official Journal footnotes ...... 4.7.21(f) retrospection ...... 4.7.39 standstill period, need to take account of ...... 2.3.4(b) state aids, need to take account of...... 2.3.4(c) Technical Standards Directive...... 2.3.4(a) Transposition Note...... see separate entry: Transposition Note Electronic Communications ...... 4.7.12 E-commerce Directive...... 4.7.13 Electronic Communications Act 2000...... 4.7.14 writing, definition of...... 4.7.14 Enabling powers ...... 2.7.1 (b), 2.3.1 catch-all provision ...... 4.1.9 citation of in preamble ...... 4.1.13, 4.1.1, 4.1.4 enlarging powers, exercise of...... 2.3.2, Annex 1(18) incidental, supplementary, transitional provisions, to make ...... 4.1.7 Interpretation Act, section 11 (construction of subordinate legislation) see separate entry: Interpretation Act 1978 minister, identification of, including more than one...... 4.1.4, 4.1.2, preamble ...... see separate entry: Premable piloting provisions...... 4.7.36 (b) Royal Assent following, normal rule for commencement of powers ... 2.3.1 schedule, when to cite in ...... 4.1.13 retrospection ...... 4.7.39 English Votes for English laws ………………………………………..2.16.4A and 4B Entry issues to consider ...... 4.7.19 powers of ...... 4.7.18 Errors correcting SIs free of charge ...... 4.6.5 (e) discovery of ...... 2.10.1 footnotes ...... 4.7.24 non publication of instrument ...... 2.10.5 EU Exit ……………………………………………. 1.1.3, 1.7.3 Explanatory Memorandum Commons Select Committee on Statutory Instruments...... 2.16.4 consultation ...... ………2.8.1 content, ...... 2.16.7

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Explanatory Note, distinguished from ...... 2.16.6 human rights statement...... 2.16.10, 2.17.7 (j) laying, needed on...... 2.14.3 (a) Secondary Legislation Scrutiny Committee... see separate entry: Secondary Legislation Scrutiny Committee

matters of interest to JCSI or SCSI ...... 4.7.40, 2.17.6(d), 2.16.9 registering, collating and printing, time needed for ...... 2.2.2 retrospection ...... 4.7.40 template for ...... 2.17.7 twenty-one day rule, breach of ...... 2.17.6(d), 2.15.4 unusual or unexpected use of powers, examples...... 4.7.50 who drafts or clears ...... 1.6.1(h), 1.6.2(l), 2.16.6 Explanatory Note...... 3.9.1 commencement orders...... see separate entry: Commencement Orders, Explanatory Note EC matters ...... see separate entry: EU matters, Explanatory Note Regulatory impact assessment function ...... 3.9.2 3.9.3(j), 1.3.3 retrospection ...... 4.7.40, 3.9.3 (k) what to include...... 3.9.3 Explanatory provisions in secondary legislation...... 4.4.4 (f) Explanatory Notes...... 1.3.3 footnotes eg “prescribed” ...... 4.7.21(i) Extent/application application provision, when to use, distinction with “extent” ...... 4.2.7, 4.7.8 devolution guidance ...... see separate entry: Devolution, guidance territorial suffix ...... 3.1.3 title ...... 3.2.4 generally ...... 4.2.6

F Footnotes acts, references to...... 4.7.21(d), 4.7.22 altering ...... 4.7.24 Command papers, references to...... see separate entry: Command Papers, footnotes designation orders...... see separate entry: Designation Orders, footnotes devolution ...... see separate entry: Devolution, footnotes explanations of powers used eg “prescribed”...... 4.7.21(i) failure to follow SIP...... 4.7.20 full stops ...... 4.7.26 general ...... 4.7.20 Official Journal, reference to ...... 4.7.21(f) SIs, references to ...... 4.7.22, 4.7.21(e) statutory bodies, reference to...... 4.7.21(h) transfer of functions.see separate entry: Transfer of functions, references to where to insert ...... 4.7.23 Forty day period, meaning for negative resolution SIs ...... 2.4.4

Gender neutral drafting Interpretation Act 1978, section 6 (gender and number) . see separate entry: Interpretation Act 1978 references to Secretary of State in amending instruments....4.4.20

Human rights criminal offences ...... see separate entry: Criminal offences JCSI comments on ...... see separate entry: JCSI reports and comments piloting provisions...... 4.7.36(c)

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retrospection ...... see separate entry: Retrospection Human Rights statement Hybridity Explanatory Memorandum .... see separate entry:Explanatory Memorandum piloting provisions...... 4.7.36 (b)

Impact assessments Explanatory Note ...... 3.9.3 (j) guidance on when needed ...... 2.19.2 who prepares ...... 1.6.1 (c) Incidental, supplementary and transitional provisions Interpretation Interpretation Act 1978 JCSI comments on ...... see separate entry: JCSI reports and comments general, when to use provisions ...... 4.3.1 section 4 (time of commencement) ...... ………………..4.2.4(c), Annex 1(3) section 6 (gender and number) ...... 4.7.30 section 7 (service by post)...... Annex 1(6) section 11 (construction of subordinate legislation)...... ……..3.9.8(d), 4.1.10, 4.4.4(k), 4.3.5(c) Annex1(9) section 12 (continuity of powers and duties...... Annex 1(11) section 13 (anticipatory exercise of powers) ...... 2.3.1, Annex 1(13) section 14(implied power to amend)...... Annex 1(20) section 16 (general savings) ...... 4.4.25, 4.4.11, Annex 1(25) section 17 (repeal and re-enactment)...... 4.4.25, 4.4.12, Annex 1(28) section 20 (references to other enactments) ...... …………………….4.7.55(a), Annex 1(32) section 23 (application to other instruments)………………………….. 4.2.4 (c), 4.7.42, Annex 1(2)

JCSI appointment ...... 2.18.1 consultation with ...... 1.6.2(m) correction slips ...... see separate entry: Correction slips Explanatory Memorandum, matters of interest...... see separate entry:Explanatory Memorandum staff, contacts ...... 1.7.8 (b) terms of reference ...... 2.13.1, 2.14.1, 2.18.2 web address for reports...... 1.7.4 (a) JCSI memorandum policy colleagues and lawyers, role of in preparing ...... 2.18.7 assertions, unsubstantiated...... 4.6.5(n) content ...... 2.18.8 copies of instruments referred to...... …..2.18.9 (b) effect of report to House ...... 2.18.5 procedure ...... 2.18.6 request for ...... 2.18.3 voluntary memorandum to ...... 2.18.4 who drafts ...... 1.6.2(o), 2.18.3 JCSI reports and comments on anticipatory exercise of powers...... Annex 1(16) assertions, unsubstantiated……...... 4.6.5(n) burden of proof ...... see separate entry: Burden of proof coming into force too soon ...... 2.15.64.6.3

comprehensibility ...... 2.7.3(a), 4.6.5 (b), 4.4.1 consolidation, desirability of ...... ….4.6.5 (q) copies of SIs sent to JCSI ...... 4.6.5(r) corrections, providing SIs free of charge ...... see separate entry: Corrections criminal offences ...... 4.4.6

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defences ...... 4.4.8(c) standard scale and statutory maximum ...... 4.4.8 (e), Annex 1(4)(h) delay in laying ...... 2.14.1 EU matters, cross boundary rules ...... 4.6.5 (l)

ECHR principles, breadth of ...... 4.6.5 (d) error in preamble ...... 2.10.1 (c) errors unreported in earlier instruments ...... 4.4.1 Explanatory Note, consistency with instrument ...... 3.9.7 form of, what to avoid ...... 3.9.8 (e) explanatory provisions...... 4.4.6 (f) failure to correct errors after undertaking ...... 2.18.9. (d) following previous reports...... 1.7.6(a), 4.6.5 (c) human rights ...... 4.6.5 (d) incidental, supplementary and transitional provisions, use of...... …..4.7.33 insufficient clarity in offence provisions ...... 4.6.5 (f) internal consistency...... 2.7.1(e), 4.6.2 (b), 4.4.4 (j), 4.4.4(n) legislation, failure to dovetail references to ...... ……4.6.5 (g) liability, when unclear ...... 4.4.4 (i) local instruments, erroneous characterisation of ...... 4.6.5 (a) modifications, inadquacy of ...... meaningless provisions ...... 4.6.5 (k)4.6.2 (a) “person”, use of term...... Annex 1(4) (f) power of entry need for specific provision ...... ……..4.7.18 need to show authority...... 4.6.5 (p) power to prescribe categories ...... 4.7.38, 4.7.37 prosecution proceedings ...... 4.4.8(h) referential drafting ...... 4.4.6 (e), 4.3.3 (j) retrospection ...... 4.7.40 revoking or amending previous instrument...... 2.10.4 schedules ...... 4.5.2, 4.4.4 (p) short sentences ...... 4.4.4(c) sufficient words of introduction …...... 4.5.2 SIP, need to follow ...... 4.6.4 standard scale and statutory maximim ….see separate entry:Criminal offences sub-delegation ...... 4.7.46 superfluous definitions, reference to paragraph numbers etc...... 4.3.3(c) superfluous or invalid signature ...... 3.7.2 supplementary guidance, use of to support general statement ...... 4.6.5 (i) table of contents/arrangement, position of ...... 3.4.1 technical information, need to satisfy drafting rules...... 4.4.4 (g) terms of art ...... 4.6.5 (m) text, need to break up...... 4.4.4 (b) time limits, obligations for compliance with...... 4.6.5 (h) transitional provisions...... 4.6.5 (j) typing and printing errors...... 2.9.1, 4.4.24(c) “unless the context otherwise requires”...... 4.3.3 (b), 4.6.2 (a) unusual or unexpected use of powers...... see separate entry: Unusual or unexpected use of powers words and phrases, other ...... see separate entry: Words and phrases

Latin and foregin words Laying use of ...... 4.4.4(a) 3.9.8(b) documents and procedures for...... 2.14.3, 2.14.1

134

draft guidance, of ...... Annex 1(19) general election ...... 2.14.6 number of photocopies or printed copies ...... 2.14.7, 2.14.8 timetable for printing ...... 2.12.11 when to lay and when to avoid ...... 2.3.6, 2.14.4 Legislative and Regulatory Reform Act 2006 ...... see separate entry: EU matters Local statutory instruments...... ………..2.13.2, 2.13.1 erroneous characterisation of ...... 4.6.5(a)

Merits Committee ...... see separate entry: Secondary Legislation Modernising Drafting Scrutiny Committee general ...... 4.4.2 preamble ...... 4.1.14

National Archives advance numbers for SIs ...... …….2.12.10 registration and numbering of instruments ...... 2.12.6, 2.12.8 SI Registrar, contact for classification of instruments ...... 2.13.3 SI Registrar, contact...... 1.7.8(a) Numbering in statutory instruments of divisions, general...... 3.6.2 numbers and letters, use of ...... 3.6.3 schedules ...... 4.5.1 sentences, complete and incomplete , when to have ...... 3.6.6 of statutory instruments 2.11.1, 2.12.6, 2.12.8, 2.12.10, 3.2.2, 3.2.3, 4.7.2(a) Negative resolution instruments different procedures ...... 2.4.4 laying ...... 2.14.4 prayers ...... …2.17.1

Official Journal footnotes ...... see separate entry: Footnotes Orders in Council as amended, use of term...... 4.7.55(b) signature ...... 3.7.3 whether statutory instruments ...... 1.2.3

Piloting provisions ...... 4.7.34 human rights ...... see separate entry: Human Rights enabling powers ...... see separate entry: Enabling powers hybridity ...... see separate entry:Hybridity Policy colleagues role of ...... 1.6.1 Post, service by ...... Annex 1(6) Powers, exercisable from time to time...... Annex 1(12) Power to prescribe categories...... 4.7.38, 4.7.37 Preamble ...... 3.5.1, 4.1.1 conditions precedent ...... 4.1.14 definitions, in ...... 4.3.3 (g)

135

enabling powers, citation of ...... 4.1.1 minister, identification of, including more than one...... see separate entry: Enabling powers modernising drafting...... 4.1.15 transfer of functions...... 4.1.3 Treasury authority ...... 4.1.12 Precedents, use of in drafting...... 2.6.1 (d) Primary legislation clearance of modifications with Parliamentary Counsel ...... 4.4.15, 2.3.10 JCSI comments on imprecise modifications ...... 4.6.5 (k) modifying ...... 4.4.14, 2.3.6 non-textual and textual modifications ...... 2.3.8 references to, using “from” and “.to” ...... Annex 1(32) references to amended legislation, meaning ...... Annex 1(34) repeals ...... 4.4.16 of previous amended primary legislation ...... 4.4.17 unnecessary subjection of secondary legislation to...... 4.7.65 Publication defence where instrument not issued ...... 2.11.2 general, including printing ...... 2.11.1

Queen’s Printer copies of legislation ...... 1.7.3

Registrar of statutory instruments ...... see separate entry: SI Registrar Retrospection coming into force before making instrument...... 4.7.43 coming into force and laying or making date, same ...... 4.2.4 (c) commencement orders...... see separate entry: Commencement orders EU matters ...... see separate entry: EU matters ECHR matters ...... 4.7.41 enabling powers ...... see separate entry: Enabling powers Explanatory Note ...... see separate entry: Explanatory Note making and coming into force date, same...... 4.7.42 Revocation implied power to revoke, Interpretation Act 1978, s14...... Annex 1(20) saving provisions, effect on, Interpretation Act 1978, s16 ...... Annex 1(25) of several SIs in one instrument ...... 4.4.26 successive revocations, Interpretation Act 1978, s15...... Annex 1(24)

Schedules introductory provision ...... 4.5.2 by another schedule ...... 4.5.3 numbering of ...... 4.5.1 position of ...... 3.8.1 revocation ...... 4.4.26 technical information ...... 4.5.4 SCSI appointment ...... 2.18.1 Explanatory Memorandum ...... 2.16.4 web address for reports...... 1.7.6(b) Second and third lawyer checks ...... see separate entry: Checking lawyers Secondary Legislation Scrutiny Committee

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consolidation, interest in...... 4.6.5 (q) consultation, interest in...... 2.8.1 terms of reference ...... 2.16.2 types of instrument within remit ...... 2.16.1 SI Registrar ...... 1.7.8, 2.10.3, 2.12.10, 3.1.5 SI Template Error Message Guide, help desk, Manual ...... 2.12.12 (c) timetable for producing SI with ...... 2.12.3 validation ...... 2.12.12 (d) web address for downloading ...... 2.12.2 when not to use ...... 2.12.4 Signature formula ...... 3.7.4 more than one ...... 3.7.1 official by ...... 3.7.5 Orders in Council ...... 3.7.3 which minister signs ...... 3.7.1 SIP address for downloading ...... 1.7.1 need to follow ...... 4.6.4 Standing Orders request for memorandum ...... 2.18.3 debate for affirmative resolution instruments...... 2.2.3 Statutory Instruments composite instruments ...... 2.4.9 definition of ...... 1.2.1 divisions, naming of...... 3.6.2 headings cross ...... 3.6.7 instructions, example of good ...... 2.5.3 lower and upper case, use of ...... 3.6.1 procedural matters ...... 1.4.1 registration, numbering, publication and printing …………………………..2.11.1, 2.12.8, 2.12.6 schedules 2.12.10i-b ...... 3.8.1 signature ...... 3.7.1 subheadings ...... 3.1.4 subject headings...... 3.1.1 timetable for producing...... 2.2, 2.12.12 (f) with printed copies ...... 2.12.5 when duty to make ...... 1.5.1 when instrument not an SI ...... 1.2.2 when not to make ...... 1.3.1 SI Publication team Registrar, e-mail address ...... see separate entry: Registrar of Statutory Instruments Statutory Instruments Reference Committee Sub-delegation permission not to publish SI ...... 2.10.5 administrative and legislative ...... 4.7.44 JCSI comments on ...... 4.7.38 reference to outside publications...... 4.7.46, 4.2.3 Sunsetting provisions ...... 4.7.34(a), 4.7.48 Super-affirmative procedure ...... 2.4.2 documents for laying ...... 2.14.2(c)

Table of Contents ...... 3.4.1 Technical information...... 4.4.6 (g) schedules ...... see separate entry: Schedules

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Territorial extent/application...... see separate entry: Extent/application Time computing periods of ...... 4.7.64 midnight and midday ...... ….4.7.69 Title amending SIs of ...... 3.2.2 choice of ...... 3.2.1 commencement orders...... 3.2.3 year changing between approval and making ...... 3.2.5 Transfer of functions ...... 4.7.49 preamble ...... see separate entry: Preamble reference to, in footnotes...... 4.7.21(a) reference to orders ...... 4.1.3 Transitional provisions and savings...... 4.4.11, Annex 1(31) amendment after commencement...... commencement orders...... 4.7.2 (f)4.7.2 (j) JCSI comments on...... 4.7.33, 4.6.5 (j) Transposition Note Cabinet Office guidance ...... 1.7.2, 2.19.10 content ...... …2.19.8 Explanatory Note, reference to TN in ...... 3.9.3(i) laying ...... 2.14.3(b) when needed ...... 2.19.6 who drafts or clears ...... 1.6.2 (k) Treasury consent citation of powers …...... 4.1.12 preamble ...... 4.1.14 (f) Twenty-one day rule ...... 2.2.1

breach of ...... 4.2.4 (c) to (e), 2.15.5, 2.15.4 documents not subject to ...... 2.15.6 general ...... 2.15.1 calculation of ...... 2.15.3 purpose of ...... 2.15.2

Unusual or unexpected use of powers ...... 4.7.50

Words and phrases amounts ...... 4.7.62 and, or ...... 4.7.52 applicable, relevant ...... 4.7.53 article ...... 4.7.54 as amended ...... 4.7.55 (a) as the case may be ...... 4.7.67 bank holiday ...... 4.7.56 British Islands ...... Annex 1(4)(a) British Overseas Territories ...... 4.7.57 by operation of law ...... 4.7.58 Christmas Day ...... …….4.7.56

competent authority...... 4.7.59 EU expressions ...... 4.7.60, Annex 1(4)(b) enactment ...... Annex 1(4)(c) financial year ...... Annex 1(4) for the purposes of ...... 4.7.67 forthwith ...... ……...4.7.70

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Good Friday ...... 4.7.56 in accordance with...... 4.7.67 land ...... Annex 1(4)(d) month ...... Annex 1(4)(e) numbers ...... 4.7.62 on or by a specified date ...... 4.7.63 periods of time, computing ...... 4.7.64 person ...... Annex 1(4)(f) primary legislation, unnecessary subjection of secondary legislation to pronouns …………………………………………………………………..4.7.65, 4.7.66 pursuant to ...... 4.7.67 relevant ...... 4.7.53 Secretary of State………………………………………………………...Annex 1(4)(g) standard scale and statutory maximum ...... 4.4.8(e), Annex 1(4)(h) subject to ...... 4.7.68 times of day ...... 4.7.69 “unless the context otherwise requires” See separate entry: JCSI reports and comments without notice ...... 4.7.70 working day ...... 4.7.56 writing in electronic communications ...... 4.7.14

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