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Last updated: 07 May 2010
There are some incidental and supplemental matters that need to be considered in connection with every Bill, although some may not give rise to any instructions.
If instructions on these matters have been integrated with instructions in the remedy section, it is useful to use this section of the instructions as a checklist to tick off that the matters in question have been considered in relation to everything covered in the instructions.
Not all of the matters will be relevant in every case but they should each be considered.
The following are the matters that need to be considered in this way.
Most of these speak for themselves, but the last three require some commentary.
It is common for time pressures to make departments consider the taking of a power to implement consequential and transitional etc. provisions for a Bill. There is also a temptation to do this in order to be able to sweep up any consequential or transitional etc. provisions that may have been forgotten.
For the reasons given previously, it is better to avoid doing this, and of course it will always delay implementation. It should be possible to include the required provisions in the Bill unless it is a large Bill; and even then, it should usually be possible to do so. There are real risks of postponing consideration of these matters. And departments need to be aware that the Delegated Powers and Regulatory Reform Committee in the House of Lords is very likely to ask the department to provide a detailed justification for any power of this sort that is included in the Bill (whether on commencement or later).
It is worth noting too that the consequential amendments and repeals required for a Bill may give rise to devolution issues even where no such issues arise on the main provisions of the Bill.
In instructing on commencement provisions it is very important to consider which provisions may come into force at different times. A provision to bring different provisions into force on different days for different purposes will often prove sufficient. But that may not be enough in a case where there is a change of plan after the Bill has been drafted on the basis that certain things will inevitably be contemporaneous (eg if functions etc. are being transferred from body A to be split between bodies B and C, the Bill may need to ensure that there can be a period during which the functions are split between A and B or between A and C).
If the plans for the implementation of the Bill involve pilot schemes in specific areas, specific provision may be needed, at the very least to allow for different commencement dates to be appointed for different areas.
The distinction between a transitional provision, a transitory provision and a saving is as follows, although the three are not mutually exclusive.
Some of these things can often be achieved under the power to bring different provisions into force on different days for different purposes; but that power should not be stretched beyond reasonable limits.
The reasons given previously for avoiding the taking of powers are particularly relevant to powers to make transitional and transitory provisions and savings. Bills are about changing the law. If the law is being changed from A to B, it is sometimes possible to do that just by stating the destination viz B. And in those cases transitional etc. provisions are about the route from A to B. But the route is often as important as the destination; and if working that out is postponed, sometimes the wrong destination is chosen. Transitionals etc. are usually the most difficult part of the policy; and drafting them is a very specialised business. Wherever possible they should be in the Bill. At the very least their likely content should have been worked out in sufficient detail to be included in the instructions to draft the power.
Where new law is replacing some law that contained transitional or transitory provisions or savings, it is very important to consider if those are spent or if their effect has to be carried forward into any transitional or transitory provisions or savings in the new law.
