2 S.I.
2011/1523: Reported for failing to comply with proper drafting
practice
Armed Forces (Terms of Service) (Amendment)
Regulations 2011
(S.I. 2011/1523)
2.1 The Committee draws the special attention
of both Houses to these Regulations on the ground that they fail
to comply with proper drafting practice.
2.2 Regulations 3 to 11 amend four instruments which
were made in 2006 and 2007. The provisions affected are concerned
with the right of Service personnel to leave the Service or to
transfer to the reserve. The instruments which are amended confer
such rights using the traditional legislative expressions "shall
be entitled", "shall have the right", and so on.
The amendments made by this instrument insert similar provisions
which instead state that a person "will be entitled"
or "will have the right".
2.3 In a memorandum printed at Appendix 2, the Ministry
of Defence states that "will" has been used appropriately.
It accepts that "shall" could also be used but states
that "will" is the more modern term. The Committee's
approach to style, and in particular whether usage should be traditional
or modern, starts from a position of neutrality; provided that
clarity of effect and consistency is respected, it is prepared
to accept either. However it notes that "will" is routinely
used purely to denote futurity rather than obligation, and would
accordingly need persuasion that it could be appropriate for the
conferring of a right. In addition, when existing legislation
is amended, the Committee expects consistency as a general rule.
In other words, in the absence of convincing special reasons,
either—
- the new provisions should not
clash with the existing ones if they are left in their previous
state, or
- changes (assuming they are justified) should
be applied throughout the existing provisions.
- Neither is the case here, nor have convincing
special reasons been adduced .
2.4 Regulations 13 to 15 contain transitional provisions,
and each states that, in cases where specified action was taken
before commencement of these Regulations, a provision "will
apply" without the amendments made by these Regulations,
rather than "applies". The Department accepts that "applies"
could equally have been used. In the Committee's view it would
have been more apt to use "applies", for the provisions
apply as soon as the Regulations are in force and then continue
to do so.
2.5 The inserted provisions also use the gender neutral
plural "their" whilst the existing provisions into which
they are inserted use "his". Again, the Department accepts
that "his" could have been used, and the Committee would
repeat its preference for a consistent end result.
2.6 The Committee accepts the Department's statement
that none of these matters requires amending action to be taken,
but is concerned that modernisation should not lead either to
internal inconsistency in legislation or to unnecessary use of
expressions denoting a future state. The Committee accordingly
reports these Regulations for failing to comply with proper drafting
practice.
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