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Samantha Ramen

Samantha Ramen


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Secondary legislation: Timing is everything…

Client Alerts12/02/2021

The emergence of the 22 January CPRC meeting minutes has been widely publicised this week. The minutes confirm that CPRC members recommended that Sir Geoffrey Vos (the Master of the Rolls) approved the draft Pre-Action Protocol (PAP). It also states that the matter is due to return to the CPRC meeting held last week (5 February), indicating that good progress is being made towards an implementation date of May 2021.

The key question that many insurers would like to know is: when can we see the rules? The industry has been clear that insurers require a minimum of three months from publication to launch. Counting back, this means a deadline of the end of February.

However, the next CPRC meeting is on 5 March. Is whiplash on that agenda? Some commentators believe that it is. That may be too late – it would, after all, breach the three month time period.

But what about twelve weeks? Three months, twelve weeks – is there much difference?! Well, actually, for these purposes, it may be vital. Counting back 12 weeks from 31 May = 8 March, three days after the 5 March CPRC meeting. Perhaps that is the new longstop date. And what of the statutory instruments (SIs) – they will also need to be laid in good time prior to implementation.

As you’d expect, statutory instruments - like any form of legislation - have a certain path that they need to follow. In this instance, the SIs will be subject to the affirmative resolution procedure.

There has been speculation that the Ministry of Justice intends to lay these SIs in the week commencing 22 February. Statutory instruments are laid on a fairly ad hoc basis, with the last one published earlier this month. Previous ones were published November, August, July and June 2020. It seems like whenever an SI is required, it is laid.

SIs usually need 28-40 Parliamentary sitting days before taking effect (this includes those that need to go through the affirmative resolution procedure). The date for 40 parliamentary sitting days before 31 May happens to be 8 March. But how does that link in with the Pre Action Protocol and the rest of the rules?

Interestingly, Parliamentary convention is that rules and laws aren’t published anywhere before the House is able to see them – this House of Commons paper states clearly that: “Any paper required by an Act of Parliament to be laid before the House, should not be made publicly available (e.g. on a website) before it has been laid. The release of an HC paper before laying is a discourtesy to the House”. So – whilst not definitive – it does suggest that the laying of the statutory instrument should precede the release of any other document.

Certainly a case of watch this space…!