One area of bill drafting is the use of transitional and savings provisions. What are the differences and how are they used? The Graduate Diploma in Legislative Drafting from Athabasca University provides some helpful guidance to bill drafters.
All transitional provisions come into play when new legislation amends or repeals existing law. For example, they address the issue of how activities or rights begun under existing law are treated under the amended or repealed law. This is obviously important so that those who have relied upon the existing law understand their rights or status after the law has been amended or repealed. Basically, transitional provisions contain rules to ensure a transition from the prior law to the new law.
Savings provisions are a type of transitional provision. They are generally used to retain an existing right or authority that would otherwise be affected by the new law. In essence, the savings provision preserves the right or authority despite the new law’s amendment or repeal of the former law.
Types of transitional provisions may be used to address:
- Does the new law apply to cases or conduct that began under the former law?
- Are there interim rules to be followed when transitioning from the former to the new law?
- Are existing rights to be preserved under the new law or the repealed law?
- Are matters under the former law to be treated differently under the new law?
- Are pending legal proceedings to be conducted under the former law or the new law?
- Should a new procedure or process be applied to existing cases?
- Is there a phase-in period?
How should the bill drafter handle these transitional provisions? The drafter must use express terms in these instances. For example, if the new law is intended to apply retroactively, then the drafter should be explicit in stating this, rather than rely upon extrinsic aids to rebut the usual presumption against a statute applying retroactively.
At other times, the Legislature will repeal and reenact a section of law. An example from the 2020 Legislative Session was SB 1383 (Jackson), which repealed and reenacted a section of the Fair Employment and Housing Act. Instead of making numerous amendments, the bill was drafted to repeal the existing code section on January 1, 2021 and then reenact the same code section in a modified form on January 1, 2021.
The following are examples of statutes that may require transitional provisions:
- Elimination of a state office and the appointees to it
- Legal proceedings that have already commenced, but have not concluded
- Licenses that have been issued and remain in force
- Financial benefits, such as tax incentives, that have been earned but not used
- Authority to impose a penalty for an offense that was committed prior to the law’s repeal
- Carrying out duties that were required at the time of repeal
- Legal documents in effect at the time of repeal
What are some options available to the bill drafter to address these types of statutes? For example, legal proceedings could be allowed to continue under the old statute or under the new statute. The drafter could apply the new law to existing cases that began under the former law but have not concluded at the time of the repeal legislation.
In other instances, the assets, liabilities, functions, personnel, etc. could be transitioned over to the new entity. In other instances, interim arrangements are adopted in which a temporary regime is utilized so that, during a specified interim period, the old rules are used until the new ones take effect.
Regardless of the form that the transitional provisions take, the bill drafter needs to expressly deal with past matters or apply the new law to current circumstances. The drafter should provide a smooth transition for those affected by the old law, as well as the new law.
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