I’ll refer again to Lord Justice Toulson’s comments (at [2008] EWCA Crim 2467) that:
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 [court is unintentionally misled] as to the relevant Regulations in force. [This is a] problem of substantial constitutional importance.
He was echoing – and specifically referred to – the Law Commission’s recommendations in its 2006 report on Post-Legislative Scrutiny (Law Com 302, at para 4.11):
We are concerned when information so fundamental to a democracy is difficult to identify, obtain and understand, and is frequently out of date.
How do we fix this?
There are three ways to address the problem – and all three need to be pursued with equal vigour.
Firstly, let’s improve access to existing legislation. This is the task OPSI have and it is one which FreeLegalWeb is addressing. But this is applying sticking plaster to the wounds.
So, let’s improve legislation via new legislation! The Leader of the House of Commons is on the case, describing the several ways in which the Government is simplifying and consolidating legislation. But that does not address the huge corpus of remaining existing fragmented legislation.
The third way we can improve access to legislation will be by far the most effective and it does not appear yet to have attracted any public discussion – and that is to improve the legislative drafting process.
Legislation is drafted by the Office of Parliamentary Counsel and it is therefore to the OPC that we should look for the answer. To do their job in preparing amending legislation OPC need to work from a consolidated version of the current legislation. Why cannot that be made available to us? (Do LexisNexis own it?!) And if, in drafting amending legislation, they are updating existing legislation, why cannot they apply technology to automate the process?
In 2004 Tim Arnold-Moore of the Royal Melbourne Institute of Technology published an excellent paper on Automating consolidation of amendments to legislation in common law and civil jurisdictions which gives a full background to drafting practices in commonwealth jurisdictions and discusses the reasons for extending the traditional role of the official drafting office to the management of the legislative repository:
They have historically maintained consolidations of legislation for their own use to facilitate the drafting of amending legislation. Rather than duplicating the effort to consolidate the amendments, the public resources used to maintain this repository should be for the benefit of all users of legislative material. If these versions are considered authoritative enough to be used as the basis for amending legislation, they should be considered sufficiently reliable for the government to endorse as authoritative. The cost of delivering these consolidations in a timely fashion to the public is a small proportion of the cost of manually maintaining these consolidations and there is no excuse for governments failing in this respect. Providing older consolidations is simply a matter of retaining old versions and providing a suitable mechanism to search and browse them.
The article also describes how the “redlining” of amendments on the consolidated master version of the legislation can be used automatically to generate the amending legislation. This stuff is happening down under.
Tasmania, with its automated consolidation system, usually has consolidated legislation available on the day the amendments commence if not before. Contrast this with the vast resources of the US Congress where updated versions of the US Code are made available as long as 2 years after the amendment becomes law.
Sadly the UK lags even further behind, with the SLD only substantially up to date to 2002.
See also AustLII’s Point-in-Time legislation system: A generic PiT system for presenting legislation.
