1.The Committee requested a memorandum on the following point:
Having regard to the need for consistency in legislative practice and having regard to paragraph 3.13.6 of Statutory Instrument Practice, explain the special circumstances in which it was thought necessary to include regulation 1(3).
2.Regulation 1(3) states that an amendment made by the Regulations has the same extent and application as the provision amended.
3.As the Committee will be aware, since January 2021, SI drafters within the Government Legal Department have been encouraged to deal expressly with extent in every SI, even where it can be inferred. This change of approach has been adopted because not including an extent provision in cases where extent can be inferred is likely to be unclear and unhelpful to users in most cases. For example, user testing by The National Archives proves that significant numbers of lay users use legislation.gov, and that it is not only a legal database used by lawyers. The user testing also establishes that lay users do not in many cases have the knowledge or skills to infer extent in the absence of an express extent provision.
4.This approach is not entirely new. In practice, many SIs already adopt the recommended approach, and it has been the practice of Parliamentary Counsel to take the approach in comparable instances of primary legislation for some time. Overall, it was considered sensible to adopt a standard approach, for the sake of consistency generally across primary and secondary legislation, and to help users in specific cases. The Department has accordingly followed the recommended approach on extent in this case.
5.Having included the extent provision, the Department considered that it would be helpful to the reader also to address application. While the application provision is legally correct and, we consider, helpful, the Department acknowledges that the reference to application in regulation 1(3) was not necessary having regard to paragraph 3.13.6 of Statutory Instrument Practice.