Tips on using legislation
A person may read legislation to find the answer to a specific question, or to find out more generally what law applies in a given situation. Whatever the reason, consulting legislation is not always an easy exercise, even for trained lawyers. There follow some tips which may help those trying to navigate the ‘Statute Book’.
Tip 1: Locate the right legislation
The first challenge may be working out which legislation to read. Remember, you may need to look at both the primary legislation and its subordinate legislation to get a full answer.
Perhaps more than one piece of primary legislation is relevant. Depending on the subject matter, you may need to consult both UK legislation and Welsh legislation, and even EU legislation.
Legislation is organised and numbered chronologically and there is no subject index of Welsh (or UK) legislation, but the title and contents page of a piece of legislation will give a general idea of what it is about. Because of the quantity of legislation and the often complex relationship between different pieces of legislation, patience and perseverance may be needed to pinpoint all the legislation relevant to an issue.
Tip 2: Extent and application
Legislation usually states which parts of the UK it ‘extends’ to. In other words, it will state that it forms part of the law of specified parts of the UK. ‘England and Wales’ is a single part of the UK for these purposes, because England and Wales share a legal system (or jurisdiction). The other parts of the UK are Scotland and Northern Ireland.
If an Act of Parliament does not say anything about its extent, usually by implication it extends to the whole of the UK. Senedd Acts (and Measures) all extend to England and Wales (and can only extend to England and Wales).
Confusingly, an Act may also say, either explicitly or by implication, which parts of the UK it ‘applies’ to. In this case, Wales is treated separately from England. An Act of Parliament may apply only in relation to Wales, or only in relation to England. Some parts of the Act may apply only in relation to Wales, and other parts only in relation to England, and so on. If an Act does not say anything about its application, usually by implication it applies to the whole of the UK (or the whole of those parts of the UK to which it extends). A Senedd Act can only apply in relation to Wales, though that does not necessarily mean that it cannot have any effect outside Wales.
It is therefore very important to understand the extent and application of a provision. In order to apply to Wales, the legislation must both ‘extend’ to England and Wales, and ‘apply’ in relation to Wales. In an Act of Parliament the provisions about extent are usually located towards the end of the main body of the legislation, just before the Schedules (if there are any). Provisions about application may appear throughout an Act rather than gathered in one particular place and may either be express (e.g. “This section applies to Wales only”) or implied (e.g. a section that is about local authorities in Wales). Senedd Acts do not contain provisions about their extent as they can only extend to England and Wales and they generally do not have express provisions about the Act applying to Wales (again as they can only apply in relation to Wales).
Tip 3: Is it in force?
If an Act does not specify a particular date on which it came into force (or into effect), it will have come into force on the date on which it received Royal Assent. However, it is common for an Act to specify (in a section usually near the end of the Act called ‘Commencement’ or ‘Coming into force’) a particular date when it comes into force and/or to provide that it comes into effect on a date to be specified in subordinate legislation (referred to as ‘Commencement Orders’). The date on which a provision comes into force is known as its ‘commencement date’.
In the case of subordinate legislation the date on which it comes into force is set out at the beginning of the statutory instrument.
Different provisions within an Act may come into force at different times, but a piece of subordinate legislation normally comes into force all at once.
When you have worked out the commencement date of the provision you are interested in, you must then establish whether there are any transitional provisions to take account of. For example, there may be transitional provisions if the legislation was implemented to replace or amend existing legislation on the same topic. The transitional provisions specify the circumstances in which the old legislation still applies, and the circumstances in which the new legislation applies instead. Another purpose of transitional provisions is to preserve a state of affairs – for example, to ensure that a person licensed under an existing licensing scheme continues to be licensed if new legislation substitutes a replacement licensing scheme.
If an Act is amended, the amending Act will specify the date from which the amendments will take effect (and again, there may be transitional provisions detailing how the amendments take effect). For more on amendments, see Tip 4.
If legislation is no longer needed, it can be repealed (and therefore cease to have effect). Legislation may, for example, be repealed because it no longer reflects government policy or because it is being replaced by new legislation. A repeal may affect a piece of legislation in its entirety or, as appropriate, only those parts of it that are not wanted any more. A repeal is usually effected by a later piece of legislation.
Tip 4: Watch out for amendments
When reading a piece of legislation, bear in mind that it may have been amended by later legislation. You need to make sure you are looking at the up to date version. If you need to know what the legislation said at a particular point in time, you may also need to work out when any amendments came into force (bearing in mind any transitional provisions – see Tip 3).
Generally, Acts can be amended only by another Act. Subordinate legislation made under an Act is usually amended only by another piece of subordinate legislation made under the same Act. The amending Act or subordinate legislation will specify the amendments to be made, usually by describing very precisely which words are to be deleted from, or inserted into, the original text. When the amending Act or subordinate legislation comes into force, the deletions and insertions take effect in the original legislation and the amended version becomes the law from then on.
It helps considerably to obtain an updated reprint of the original legislation incorporating the amendments which have been made. In the UK a comprehensive service publishing legislation in updated form has until recently only been available from commercial publishers at cost. The situation is now being remedied by improvements to The National Archives website www.legislation.gov.uk. The website already provides free access to all UK (and Welsh) legislation, but work is underway so that eventually a fully up to date version of all legislation will be available. In the meantime, look out on the site for the pink information box, which highlights if amendments have been made to the legislation shown but have not yet been incorporated into the text (meaning you will have to consult the amending legislation to get the full picture).
It is worth noting the numbering convention where extra provisions are inserted into an existing piece of legislation. Sections and subsections in legislation are numbered sequentially (1, 2, 3) and paragraphs are lettered sequentially (a, b, c). To avoid having to renumber existing provisions, any new provisions are inserted with an additional letter. For example, a subsection inserted between (1) and (2) would be numbered (1A) and a new paragraph to be inserted before (a) would be (za).
Tip 5: Consider any relevant common law
The answer you are looking for may be found in common law, rather than in legislation. Even if there is relevant legislation, remember there may be caselaw which helps to explain the meaning of the legislation or its effect. The caselaw may deal specifically with that piece of legislation, or it may contain more general statements about how legislation is to be interpreted.
For example references are often made in legislation to a person having to be ‘ordinarily resident’ in a country or locality in order for the law to apply to that person. As there are numerous complexities to the question of whether somebody is ordinarily resident, most of which have been considered by the courts, legislation uses that term without further explanation, relying on what is said on the issue in the judgments of the courts rather than trying to define the concept in a way that deals with every eventuality.
Just like UK and Welsh laws, the meaning and effect of EU legislation is also influenced by caselaw, in this case deriving from the European Court of Justice.
Tip 6: Do not focus too narrowly on certain provisions within a piece of legislation
You may need to read all or a significant part of the legislation in question, or also read another piece of legislation (see Tip 7), to get a full answer. Often it will be necessary to read the whole Act to get a full understanding of the effect of an individual section within it.
The contents page to the legislation will show how the legislation is structured and help you to locate the parts you need to look at. Primary legislation is usually divided into ‘Parts’, with each ‘Part’ dealing with a different topic. ‘Parts’ are sometimes further sub-divided into ‘Chapters’, and ultimately into individual ‘sections’. The headings to Parts, Chapters and sections, and to any Schedules which the Act may have, will help you to navigate to the right place.
Even if a particular section within a piece of legislation appears to provide your answer, remember that the meaning of that section may be affected by provisions elsewhere in the same legislation, or even in other legislation. Provisions setting out what a particular word or phrase means, or how it is to be interpreted, are sometimes included at the beginning or end of the legislation (or at the end of the Part in which the word or phrase is used), and may not always be easy to spot (see Tip 8).
Remember that a section may provide a general rule, and there may be provisions elsewhere in the legislation creating exceptions to that general rule. Similarly, there may be other provisions which provide further detail, enabling you to obtain a fuller answer.
Legislation often contains cross-references, referring to other parts of the same legislation. The cross-reference may appear in one section (section 1) and refer to a different section (for example, ‘section 2’ or ‘section 2(1)’). The cross-reference looks slightly different if it refers to another provision within the same section. For example, a reference in section 2 itself to section 2(1) would simply say ‘subsection (1)’.
Tip 7: You may need to take other legislation into account
Sometimes the law on a particular topic has evolved over time, and is found in a range of different pieces of legislation. This can make the law more difficult to understand, because of the need to work out how the various different pieces of legislation fit together.
Things can get particularly difficult if a later piece of legislation makes amendments to an earlier piece of legislation (see Tip 4).
Sometimes another piece of legislation will be relevant for determining the meaning of a particular provision. For example, the Interpretation Act 1978 and the Legislation (Wales) Act 2019 makes general provision about the meaning of certain words and phrases used in legislation (see Tip 11). On the other hand, the piece of legislation you are looking at may, for the purpose of brevity, provide that certain words are to have the meanings specified in a different piece of legislation. Sometimes Acts on a particular subject have a system of interpreting particular words throughout them all, so for example when an Act is designated (by a provision within the Act) as "one of the Education Acts" this means that interpretation provisions in any one of the Education Acts may be relevant (there is a list of the Education Acts in the Education Act 1996).
It is common for legislation which creates a criminal offence to specify the amount of any monetary penalty by reference to a level on the ‘standard scale’ (for example, ‘a penalty of an amount equal to level 3 on the standard scale’). This method allows the amounts of penalties to be varied from time to time, for example to reflect inflation or a change in policy. Care needs to be taken when interpreting any reference to the monetary penalty which can be imposed following a summary conviction (that is, a conviction for an offence in the Magistrates’ Courts), whether in the form mentioned above, or expressed as a monetary amount. Changes are being introduced by the Legal Aid, Sentencing and Punishment of Offenders Act 2012 which will have a bearing on how references to a monetary penalty are to be interpreted. (For details of the standard scale, see section 37 of the Criminal Justice Act 1982).
Tip 8: Pay careful attention to the words used
Legislation should be read slowly and carefully, since every word is important. Your task is to find out the meaning of the words, remembering that there may be caselaw which has decided the meaning or otherwise has a bearing on the meaning.
The legislation may provide a specific definition for particular words and phrases used within it, or provide some rules about how a particular word or phrase is to be interpreted. Sometimes the definition or rule on interpretation will be included in the section in which the word or phrase is used. However, sometimes all the definitions and interpretative rules will be grouped together in one place, often at either the beginning or end of the legislation, or at the beginning or end of a Part of the legislation if the words and phrases concerned are only used in that Part.
Remember to check whether a definition applies throughout the Act or only for the purposes of a particular section or Part of the Act. If the definition only applies for the purpose of certain provisions, the same word or phrase used elsewhere in the Act would have its ordinary and natural meaning (unless the Act supplied a different definition for use there).
It is advisable to familiarise yourself with any relevant definitions or rules of interpretation set out in the legislation before starting the process of working out what any particular provision means.
A definition may do one of three things:
- it may say what the word or phrase means – for example, " ‘vehicle’ means any motorised mode of transport";
- it may say that the word or phrase includes or does not include something in particular – for example, " ‘vehicle’ includes a boat"; and
- it may say what the word or phrase means and say that it does, or does not, include something in particular – for example, " ‘vehicle’ means any motorised mode of transport including a motorised boat".
Note that the second type of definition, the one which merely includes or excludes something, is not a full explanation of what the word or phrase means. This sort of definition is often used to clarify whether particular things fall within the definition if this would otherwise be uncertain. The first and third type of definition, which specify what the word or phrase means, provide a full (or ‘exhaustive’) explanation of the meaning.
If the legislation does not provide a special definition or interpretation for a word or phrase (either within it or within a set of Acts like the Education Acts), and if the Interpretation Act 1978 or Legislation (Wales) Act 2019 does not provide a definition or interpretation (see Tip 11), then the word or phrase must usually be given its ordinary and natural meaning. If this isn’t clear, then you will need to consider the rules of statutory interpretation (again see Tip 11).
Tip 9: Pay attention to conjunctions
A conjunction is a linking word. Legislation often includes lists of things in separate paragraphs, usually numbered (a), (b), (c) etc. The effect of the legislation could be quite different depending on whether paragraphs (a), (b) and (c) are linked by ‘and’ or ‘or’.
Note the difference in meaning between the following examples:
"In order to be eligible for registration, a person must-
(a) live in Wales;
(b) be a British citizen; and
(c) be registered in a Member State of the European Union."
"In order to be eligible for registration, a person must-
(a) live in Wales;
(b) be a British citizen; or
(c) be registered in a Member State of the European Union."
Generally the conjunction is included only on the penultimate paragraph (so after paragraph (b) in the above examples). Where this occurs, the conjunction is taken to apply to all the paragraphs. As an alternative to the ‘and’ conjunction a list may sometimes be used, as follows:
"This Act applies to the following-
(a) a county or county borough council in Wales;
(b) a National Park Authority in Wales;
(c) a community council."
Tip 10: Resolving inconsistencies
A piece of legislation may contain provisions which, at first sight, appear to conflict with each other. In this case, it is necessary for the legislation to specify which provision takes priority. The wording used to achieve this can sometimes be a bit confusing.
You will often find a provision which states that: ‘section X is subject to section Y’, meaning that section Y must be applied in priority to section X in the event of a conflict.
Other ways of expressing the idea that section Y has priority over section X include saying that section Y operates ‘despite’ section X, or ‘notwithstanding’ section X.
Legislation shouldn’t contain inconsistent provisions. If there are conflicting provisions, the legislation in question has to be read as a whole so that the combined effect of the inconsistent provisions can be worked out. It may be necessary to resort to the rules of statutory interpretation (see Tip 11) to resolve an inconsistency within a piece of legislation, or between two pieces of contradictory legislation.
Tip 11: Reading legislation is an interpretative process
The specialist lawyers who draft legislation in the UK strive to make that legislation as clear and easy to understand as possible. However, it is not always easy to express complicated legal rules in simple language. And even the simplest language can sometimes be ambiguous, or it can be uncertain what effect a provision has in particular circumstances.
This means that on occasion you may not understand the words used in the legislation upon first reading and may have to consider certain principles for interpreting statutes to work out the meaning of the words. If persons cannot agree on the meaning of legislation, ultimately it would be for the courts to decide the meaning. The courts will apply common law rules, known as the rules of statutory interpretation, to decide what legislation means.
Statutory interpretation is a complex topic and there is no attempt to explain it in detail here. However, in the broadest terms:
- The starting point is to give the words used in the legislation their ordinary and natural meaning.
- If giving the words their ordinary and natural meaning produces an absurd result, they must be given another meaning so as to avoid that absurdity.
- If the words used are ambiguous, having regard to the ‘mischief’ the legislation was aimed at – in other words, considering what problem it was intended to address – may help to determine which of two competing interpretations is correct.
- When deciding what meaning to give to words or when resolving an ambiguity, a court will have regard to the policy and rationale behind the legislation. The purpose of this is to work out what effect the legislature, that is the UK Parliament or Senedd Cymru, intended the legislation to have. Sometimes clues can be found in the legislation itself, perhaps in the title and the headings to Parts and sections of the legislation, or in an overview provision if there is one. Sometimes the courts even have regard to external material, such as explanatory notes that accompany Acts, or the record of proceedings in the legislature or committee reports taken from discussions about the intended purpose of the Act while it was being debated as a Bill, as a way of discovering the context and intention behind the legislation. If there was a consultation process for the Act, or some other input such as proposals for reform from the Law Commission, the consultation document or proposals may also provide an insight into the policy and rationale behind the legislation.
Information about each Senedd Act is available from Senedd Cymru’s website. This includes the explanatory memorandum which sets out the policy and intentions behind the Act and more detailed explanatory notes describing the effect of the legislation. There is also information available in relation to subordinate legislation made in Wales. For UK legislation, background materials, including the explanatory notes for legislation, are available from www.gov.uk or www.legislation.gov.uk.
Tip 12: Other legislation may have an impact on what a piece of legislation means
It pays to be familiar with the Interpretation Act 1978 and Part 2 of the Legislation (Wales) Act 2019. For example, section 11 of the 1978 Act provides that words used in subordinate legislation have the same meaning as in the Act under which the subordinate legislation was made, unless stated otherwise. Schedule 1 to the 1978 Act provides definitions for a range of words and expressions, which are then taken to have the same meanings in certain other Acts unless otherwise stated. Care is needed when reading Schedule 1, because while some of the definitions apply to all Acts, others apply only to Acts passed after a specified date (see paragraph 4 of Schedule 2 to the Act).
One of the expressions defined in Schedule 1 to the Interpretation Act 1978 is ‘Secretary of State’. In all Acts, a reference to the Secretary of State is a reference to any Secretary of State. The Ministers of the Crown Act 1975 and its related subordinate legislation must be consulted to find out which Ministers are the Secretaries of State from time to time. They are the senior Ministers heading central Government departments (such as the Secretary of State for Wales and the Secretary of State for Education). Their descriptions change from time to time as a result of changes to Ministerial portfolios. Care is also needed within the Welsh context because functions of the Secretary of State may have been transferred to the Welsh Ministers without a change being made to the text of the Act (although Senedd Acts and Measures generally refer to the Welsh Ministers rather than the Secretary of State).
The Human Rights Act 1998 can also affect the interpretation of UK legislation because section 3 of that Act requires both primary and secondary legislation to be interpreted, so far possible, in a way which is compatible with rights under the European Convention on Human Rights. A Senedd Act or Measure will not be valid if it conflicts with those rights.
Section 154 of the Government of Wales Act 2006 may impact upon the meaning of Welsh legislation. Section 154 applies to a provision in a Senedd Act or Measure which could be read in such a way as to be outside Senedd Cymru’s competence (that is, outside its law making powers). It also applies to a provision in subordinate legislation made under a Senedd Act or Measure which could be read in such a way as to be outside the powers under which it was made. Section 154 requires the provision to be read, if possible, as narrowly as is required so as to be within legislative competence, or within the powers.