Appendix 2
S.I. 2011/1523: memorandum from the Ministry of
Defence
Armed Forces (Terms of Service) (Amendment)
Regulations 2011
(S.I. 2011/1523)
1. The Joint Committee on Statutory Instruments requested a memorandum in response to the following points made in relation to the above mentioned instrument.
Given that the auxiliary "will" is routinely
predictive rather than apt for setting out legal rights and obligations
-
(a) why is it used in these Regulations in
provisions inserted into instruments materially parallel to existing
provisions in those Regulations that routinely use "shall"
(for example regulation 7A inserted by article (sic) 5 after regulation
7 of SI 2006/1198 in comparison with surviving regulation 7 of
that SI); Observation made on the amendments made by regulation
5 etc?
2. We are of the view that "will" has
been used appropriately. The auxiliary verb "will" accompanies
the main verb ("have") in regulation 5 etc., of the
instrument to illustrate that the "right" referred to
is not possessed unless or until certain conditions are satisfied;
which must of necessity occur at a point in the future. Whilst
it is accepted that the auxiliary verb "shall" may also
be used to create the same effect, "will" is more a
modern term. Use of "will" does not cause the provision
to be ambiguous or incomprehensible and in this instance it is
considered unnecessary to adopt the linguistic style of other
existing provisions. We therefore do not consider that the relevant
regulations require amendment.
Given that the auxiliary "will" is routinely
predictive rather than apt for setting out legal rights and obligations
-
(b) when it is used elsewhere (for example
in regulations 13 to 15), why it used in preference to the present
tense?
3. In addition to the point made above, whilst
it is accepted that "applies" could equally have been
used instead of "will apply", we consider this to be
a stylistic point. We do not consider that the current formulation
is ambiguous or that it makes the provisions difficult to understand.
As a result we do not consider that the regulations require amendment.
Why is the gender neutral plural ("their")
used, for example, at the start of introduced regulation 7A of
SI 2006/1198 in circumstances where "his" is used in
surviving regulation 7 of SI 2006/1198, in a manner that leaves
unresolved inconsistency of usage in that SI?
4. Since the introduction of gender neutral drafting,
we have endeavoured to adopt the new approach unless doing so
would create ambiguity or be overly cumbersome. We accept, of
course, that use of the word "his" and reliance upon
the Interpretation Act 1978 would be sufficient, however, in adopting
the current style we do not consider that any ambiguity has been
created. It is clear in the existing provisions that "his"
necessarily includes "her" and use of "their"
in the new regulations encompasses both terms and does not create
any conflict. Therefore, we do not consider that the new provisions
require amendment to correspond with the old terminology. However,
in future drafting, we will be happy to adopt the old approach
of using masculine gender terms and relying on the 1978 Act.
5. Finally, we are grateful for all the observations
made: All will be taken into account when drafting instruments
in the future.
Ministry of Defence
12 July 2011
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