Friday, February 13, 2009

What's the law?

Daithí Mac Síthigh has drawn my attention to a fascinating case the upshot of which is that laws are being created so quickly and voluminously and enacted through secondary legislation in such a way that even the legal profession cannot keep up. As Daithí says, Lord Toulson deserves a big pat on the back for being blunt about it:
  1. The Government's response to that recommendation was presented to Parliament in March 2008, CM 7320. It stated as follows:
  2. "35. Her Majesty's Stationery Office (HMSO) and the Statutory Publications Office (SPO), which produces the Statute Law Database, are to work together to create a single, powerful and free to access online legislation service. The launch of the SLD has been a milestone in government's online legislation publishing.
    36. Over the last two years HMSO, via the OPSI website ( has embarked on wide ranging improvements to how legislation is published online, taking account of key usability features for layout and navigation. This work is being undertaken as part of 'The Transforming Legislation Publishing Programme'. The aim has been to present legislation in the most accessible and usable way, whilst maintaining the traditional strengths of immediacy and accuracy. One of the benefits is that it affords the opportunity to provide links to related information. Initially these links will be to the Explanatory Note for Acts or the Explanatory Memorandum for Statutory Instruments. Alongside this is also published an ATOM feed for the piece of legislation. This provides visitors with an easy way to keep up to date with subsequent additions to the website, like the addition of Explanatory Notes for an Act, and also the enacting or making of other related legislation such as Commencement Orders or, longer term, amending legislation. In future HMSO will be adding explicit links to Commencement Orders, and where legislation implements an EU Directive, a link also to that Directive.
    37. HMSO/OPSI and SPO will continue to work together and with government's online legislation visitors, to improve the service and ensure that UK legislation is available in a high quality and straight forward terms, with a freely available and powerful search."
  3. The aim is laudable, indeed imperative, but there is a long way to go and meanwhile the volume of legislation advances apace. It is a serious state of affairs when the relevant legislation is not accessible, the Government's own public information website (OPSI) is incomplete and the prosecution in an excise case unintentionally misleads the court as to the relevant Regulations in force. Although the problem has in this case arisen in an excise context, it is part of a wider problem of substantial constitutional importance."
Daíthí sums up very nicely:

"Toulson LJ makes four points, which I paraphrase as follows:

  • The majority of legislation is secondary legislation.
  • The overall volume of legislation has increased and is still increasing.
  • The legislation is spread across various statutes and statutory instruments.
  • There is no straightforward way for an individual to find out what the law in force is."
The government is churning out laws like they're going out of fashion, in secondary legislation, and hiding them in places not even lawyers, let alone ordinary individuals can find. So the next time you hear some minister mouthing pernicious nonsense like "nothing to fear nothing to hide" or "it's needed to fight terrorism" just ask yourself if you can really be sure you haven't broken any laws today.

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