27.11The first criterion for certification in respect of an instrument and initial certification in respect of a bill is about the territorial application of a bill, clause, schedule or instrument. An instrument, bill or provision of a bill must be assessed as ‘relating exclusively to’ England or to England and Wales. The concept of ‘relating exclusively to’ is a term already used in some of the long-standing standing orders considered at para 27.2. The standing order states that an instrument, bill or provision of a bill ‘relates exclusively’ to England or to England and Wales ‘if (disregarding any minor or consequential effects outside the area in question) it applies only to England or (as the case may be) to England and Wales’.1 The concept of application is distinct from that of extent. The extent of a bill concerns the legal jurisdiction of which the provision forms part of the law. Application concerns where the provision actually has effect. There is a single legal jurisdiction of England and Wales, so that any provision applying only to England will necessarily extend to England and Wales. The exclusion for ‘minor or consequential’ effects outside the area has been interpreted as enabling the certification of provisions which re-state the law outside an area without substantively changing them.2
In a case in 2016, the Government suggested that the vast majority of provisions of a bill applied to England only, but very few were certified because the English higher education providers to be regulated by a new body were defined as those whose activities were ‘carried on, or principally carried on, in England’, which was judged not to meet the criterion of ‘relating exclusively’ to England.3
The standing orders require that a decision on territorial application of each unit for consideration for certification is reached in respect of either England or England and Wales. This has been interpreted as having the effect that a unit which contains some elements relating exclusively to one of those areas and other elements relating exclusively to the other cannot be certified.
- SO No 83J(2), applied to statutory instruments by SO No 83P(3).
- Public Bill Office Memorandum for Procedure Committee inquiry into EVEL – Technical review (EVL 14), paras 20–22; HC (2016–17) 189, para 18.
- Higher Education and Research Bill, 2016–17, Explanatory Notes (Bill 4-EN), Annex A; Votes and Proceedings, 6 July 2016; Procedure Committee inquiry into EVEL – Technical review (EVL 14), para 24.