One area of bill drafting worth studying is the use of transitional or savings provisions. What are the differences between the two and how are they used?

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they address the issue of how activities or rights begun under existing law are then treated under the amended or repealed law. This is obviously important so that those who have relied upon existing law understand their rights or their status after the bill or the law has been amended or repealed. Basically, transitional provisions contain rules to ensure a proper and smooth transition from prior law to the new law.

Savings provisions are a type of transitional provision, and they’re generally used to retain an existing right or authority that might otherwise be affected by the new law. In essence, these savings provisions preserve the right or the authority despite the new law’s amendment or repeal of that former law.

Some examples of instances where transitional provisions could be used are:

  • 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?
  • Any existing rights that should be preserved under the new law or the repealed law are matters under the former law to be treated differently under the new law?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 some sort of a phase-in period being provided?

Next to consider is how the bill drafter should 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 relying upon extrinsic aids to rebut the usual presumption against a statute applying retroactively.

Some examples of statutes that may require transitional provisions include:

  • the 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 in theory, remain in force;
  • some financial benefits such as tax incentives that may have been earned, but not used or claimed yet;
  • the 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 the law’s repeal; and
  • legal documents that were in effect at the time of the law’s repeal.

To address some of these situations, the drafter could provide in the new statute that legal proceedings could be allowed to continue under the old statute or under the new statute. The drafter could also apply the new law to existing cases that began under the former law but have not yet concluded at the time of the repeal legislation.

You can read the transcript of today’s podcast here.