3 Correction of errors in published law
Correction slips and authorised corrections
3.1It sometimes happens that enacted subordinate legislation contains errors of form or substance. The National Archives have a process whereby certain errors can be corrected by correction slip. When a correction slip is issued, the online version on legislation.gov.uk is amended. The print PDF version of the instrument is not updated but the correction slip is published alongside the instrument on legislation.gov.uk.
3.2The decision whether to proceed by correction slip falls to be agreed between the responsible Department and the Statutory Instrument Registrar at the National Archives. Determination of when it is appropriate to rectify the text of a statutory instrument by the issue of a correction slip is the responsibility of the Registrar.
3.3The issue of correction slips by the National Archives is not expressly mentioned in the Committee’s Standing Orders, but the appropriateness of issuing one is sometimes raised in a memorandum to the Committee by a Department; and sometimes Counsel to the Committee are asked informally to contribute to the decision whether to proceed by correction slip or amending instrument.
3.4There have been a number of instances where a Department has suggested proceeding by way of correction slip but the Committee has disagreed with that approach.
The Committee’s view
3.5The Committee is concerned that changes to subordinate legislation must be—
- transparent and brought to the attention of those affected by the legislation, and
- accountable, in the sense that a change which does or might affect the meaning or effect of legislation must be made by the same person to whom the power to make the instrument is delegated, and in the same manner.
3.6Correction slips are not a reliable way of achieving either purpose.
3.7The Committee is therefore clear that errors in subordinate legislation should not be corrected by correction slip where they amount (or could possibly amount) to a change of substance. Even in other cases, they should be used only in the limited circumstances discussed in paragraphs 3.10 to 3.13 below.
3.8For transparency, amending legislation is preferable where the change is of any significance. Where amending legislation is used, the new instrument may need to be made using the free issue procedure (see below).
3.9The Committee is sometimes encouraged to operate a test for acceptability of correction slips along the lines of the test for legislative rectification adopted by the House of Lords in Inco Europe Ltd v First Choice Distribution [2000] 1 W.L.R. 586. The Committee accepts the application of the principles in Inco for this purpose, but subject to an important qualification: the Committee is not a court (which is why, for example, its Standing Orders do not encourage it to express a view as to whether an instrument is intra vires, but only as to whether there appears to be a plausible doubt as to vires). Neither the Committee, nor the Statutory Instrument Registrar or other officials of the National Archives, nor Government officials or Ministers, have the right to adjudicate on whether a change to an instrument is potentially of a sufficiently significant substantive effect to justify being achieved through a wholly non-accountable, and imperfectly transparent, system of administrative rectification, which is what correction slips are.
3.10Subject to that, the Committee agrees that the following criteria will sometimes be helpful in determining the suitability of the issue of a correction slip:24
- the errors are small scale (for example, a typographical error that does not affect the substantive meaning);
- the errors are obvious;
- the text and location of the corrections are equally obvious;25 and
- the corrections are small scale.
3.11If the errors and corrections are obvious and there is no possibility that a court or users of the legislation can interpret it in any way other than that which was intended, it may be that no correction is necessary. In addition to the criteria above, the Committee believes that the error should also be sufficiently confusing to be worth correcting.26 The Committee has expressed the view that if the Department is clear that the meaning is obvious despite the error, an acceptable option is to leave the instrument in its existing form.27
3.12The following examples, taken from JCSI reports, will be regarded as instances where correction slips cannot properly be used. This list is not exhaustive:
- Replacing one concept with another distinct concept, for example, making products “available on the market” or “placing” them on the market.27
- Small changes that affect the substantive meaning, for example, inserting “not” before “inconsistent”.28
- Absence of a main verb.29
- Express widening of criminal liability (even if the errors and corrections are obvious and small scale in textual terms).30
- Downgrading an operative provision to explanatory material.31
- Extensive renumbering.24
- Restructuring of a definition.32
3.13The following, again taken from JCSI reports, may be regarded as indicative of instances where a correction slip can be used. This list is not exhaustive:
- Changing an incorrect cross reference.26
- Amending a footnote or the explanatory note to indicate the availability of documents referred to in the legislation.33
- Amending the year of regulations referred to in the instrument.27
- Amending inert material that is not operative text, for example, italic cross headings.34,35
3.14The Committee does not routinely report errors that can be rectified by correction slip. Counsel to the Committee do, however, with the approval of the Committee from time to time, draw to the informal attention of Departments minor errors that are not thought to justify a formal report; and the minor errors table which is sent to the Department concerned will sometimes indicate that in the informal opinion of Counsel the error is, or is not, suitable for correction by correction slip.
3.15Even if corrections can be made by correction slip, a Department should not be relaxed about the fact that errors have been made. Subordinate legislation should be subjected to careful internal checking during and after drafting with a view to minimising or eliminating mistakes which are a source of confusion to users even if they are subsequently corrected. The Committee has occasionally drawn an instrument to the special attention of both Houses on account of the number of individually insignificant errors made, where the Committee thinks that this suggests insufficient care in the preparation of the instrument.
Free issue procedure
3.16The Government’s internal manual for statutory instrument procedure (Statutory Instrument Practice, 5th Edition, November 2017) says—
“3.5.20 If an SI is found to be defective, or contains typographical errors, you may need to produce a new SI and make it available, free of charge, to everyone who received the original SI.”
3.17Every instrument that is issued under this procedure carries an italic rubric at the top of the first page that says—
“This Statutory Instrument has been printed to correct errors in [SI XXXX/XXXX] / in consequence of a defect in [SI XXXX/XXXX] and is being issued free of charge to all known recipients of that Statutory Instrument.”
3.18There is no requirement as a matter of law for the Government to follow this procedure but it has been followed by successive Governments as part of their internal statutory instrument procedure for many decades.
3.19It is sometimes open to question whether or not the procedure applies.
3.20In particular, if a new instrument corrects errors in an old instrument but also implements a good deal of additional policy, it can be tempting for Departments not to follow the free issue process. In principle, however, it is probably right that readers of the original instrument should be given the corrected version without charge; if the Department chooses to combine the corrections with a large replacement instrument that is therefore costly to issue free of charge, that is its choice. Statutory Instrument Practice says the following (paragraph 4.7.6)—
“4.7.6 If your Department wants to introduce new amending provisions at the same time as it is correcting a defective instrument, it should include both the new and correcting provisions within the one instrument. You should then agree with the SI Registrar whether or not to provide free replacement copies. The Explanatory Memorandum for the amending SI needs to state whether or not the procedure for free issue has been applied and give the reasons for the decision.”
3.21Similarly, it is not always entirely clear what amounts to an error for these purposes. At one extreme, typographical errors are clearly caught; at the other extreme, realisation that a policy correctly achieved has turned out to be undesirable is clearly not caught. There is a grey area on which the Committee has occasionally opined in individual reports.
3.22It is open to question whether the free issue procedure continues to serve quite the purpose that it originally did.
3.23Few people today rely on hardcopy Queen’s Printers’ versions of statutory instruments; they generally access statutory instruments online, either using the National Archives website which provides original versions of instruments or one of the commercial subscription services that provide fully updated and consolidated texts of statutory instruments.
3.24Insofar as the original purpose of the free issue procedure was both to put readers on notice that a mistake had been discovered and corrected and to provide them with a clean text, the free issue procedure is today probably neither necessary nor sufficient: insufficient, because most readers access statutory instruments online as required and will therefore not see when a replacement is issued; unnecessary, because very few people nowadays buy individual hardcopy statutory instruments–the relatively few libraries and other institutions that buy hardcopy instruments do so through periodic subscription.
3.25A more effective and appropriate modern procedure would probably be to allow readers to register for email or text alerts when a statutory instrument is replaced for the purpose of rectifying errors. The Committee invites the Government to consider whether a process of this kind should be instituted and aligned to the existing free issue procedure.
24 Twelfth Report of Session 2016/17 in relation to the Local Justice Areas Order 2016 and Fifteenth Report of Session 2012/13 in relation to S.I. 2012/2748.
25 For examples of where the correction is not obvious see Twenty-third Report of Session 2015/16 in relation to S.I. 2016/220; Fifth Report of Session 2014/15 in relation to S.I. 2014/610; Second Report of Session 2012/13 in relation to S.I. 2012/767 and Fifth Report of Session 2010/12 in relation to S.I. 2010/1813.
26 Eleventh Report of Session 2017/19 in relation to S.I. 2017/1297.
27 Fifth Report of Session 2017/19 in relation to S.I. 2017/737.
28 Fifth Report of Session 2017/19 in relation to S.I. 2017/835.
29 Sixteenth Report of Session 2016/17 in relation to S.I. 2016/1024.
30 Twentieth Report of Session 2014/15 in relation to S.I. 2014/3258.
31 Third Report of Session 2014/15 in relation to S.I. 2014/790.
32 Third Report of Session 2014/15 in relation to S.I. 2014/572.
33 Fifth Report of Session 2017/19 in relation to S.I. 2017/669; Fourth Report of Session 2017/19 in relation to S.I.s 2017/268 and 2017/336; Twenty-seventh Report of Session 2016/17 in relation to S.I.s 2017/233 and 2017/237 and Twelfth Report of Session 2016/17 in relation to S.I. 2016/716.
34 Fifth Report of Session 2017/19 in relation to S.I. 2017/176; Twentieth Report of Session 2016/17 in relation to S.I. 2016/1161 and Fifteenth Report of Session 2014/15 in relation to S.I. 2014/2721.
35 For an explanation of the difference between inert and operative text see First Special Report of Session 2013/14 published in May 2013 titled, “Excluding the inert from subordinate legislation”.
Published: 12 June 2018