I referred earlier to Lord Justice Toulson’s comments in R v Chambers [2008] EWCA Crim 2467 which I felt highlighted the need for FreeLegalWeb. His comments in full:
64. … It is a maxim that ignorance of the law is no excuse, but it is profoundly unsatisfactory if the law itself is not practically accessible. To a worryingly large extent, statutory law is not practically accessible today, even to the courts whose constitutional duty it is to interpret and enforce it. There are four principal reasons.
65. First, the majority of legislation is secondary legislation.
66. Secondly, the volume of legislation has increased very greatly over the last 40 years …
67. Thirdly, on many subjects the legislation cannot be found in a single place, but in a patchwork of primary and secondary legislation.
68. Fourthly, there is no comprehensive statute law database with hyperlinks which would enable an intelligent person, by using a search engine, to find out all the legislation on a particular topic. This means that the courts are in many cases unable to discover what the law is, or was at the date with which the court is concerned, and are entirely dependent on the parties for being able to inform them what were the relevant statutory provisions which the court has to apply. This lamentable state of affairs has been raised by responsible bodies on many occasions, including the House of Lords Committee on the Merits of Secondary Legislation. In its Report on Post-Legislative Scrutiny BAILII: [2006] EWLC 302, under the heading “Access to legislation and consolidation”, the Law Commission stated:
“4.11. One theme related to delegated legislation, on which a number of consultees commented, was access to legislation. The joint response of the Children’s Legal Centre and National Children’s Bureau addressed the problem that despite their familiarity with the broader legal framework, they still found access to be a real problem:
‘The lack of access to statutes with appropriate links to the regulations and guidance which are currently in force must be a cause of serious inconvenience to anyone who does not have access to specialist services. We are concerned when information so fundamental to a democracy is difficult to identify, obtain and understand, and is frequently out of date. It is frequently the case that secondary legislation and guidance are overlooked in the process of scrutiny, although their impact on the day-to-day operation of the law is as significant as the primary statute.’
4.12. The joint response stated that experience of practice in childcare suggests that many injustices are the result not of failure to comply with the statute, but of failure to know about, understand or access secondary legislation.”
69. The problem is not confined to secondary legislation relating to childcare. It affects many other areas of law of great impact on the ordinary citizen, such as social security benefits.
70. The Law Commission concluded this section of its report as follows:
“4.15. It is also important that all related statutory provisions, whether primary or secondary, should be capable of being readily accessed together. We are aware of the work being undertaken on the Statute Law Database and recognise that public access to that resource is a step in the right direction. We recommend that steps should be taken to ensure that the related provisions of primary and secondary legislation should be capable of being accessed in a coherent fashion by a straightforward and freely available electronic search.”
71. The Government’s response to that recommendation was presented to Parliament in March 2008, CM 7320. It stated as follows:
“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 (www.opsi.gov.uk) 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 [my emphasis], 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.”
72. 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.
Now you may say this is a problem for Parliament to resolve via legislative reform. I’d go with that, but it won’t happen soon enough and wouldn’t have retrospective effect. Or you may say it is for Government to resolve by extending the SLD consolidation work to cover secondary legislation. I say, pigs might fly: it’s not on the cards and, if it were, would optimistically take another ten years, or – more likely – never be finished. So, in practical terms, we are left with OPSI improving access to the relevant as-enacted secondary legislation. OPSI is working hard to improve matters. But it doesn’t have all the answers, and it know this. The Power of Information agenda acknowledges that government shouldn’t try to be Big Brother, but provide better access to government information which will encourage innovative services to be developed which support the government’s own efforts. In respect of better access to the law, FreeLegalWeb has stepped forward and our award in the ShowUsABetterWay competition is recognition that – with support and encouragement – we can make a difference. There is no magic bullet that will solve the burgeoning secondary legislation problem, but we’ll be working with OPSI and the POI Task Force to improve matters substantially.
