Accessibility in the UK

In the UK there is a slightly schizophrenic attitude to accessibility of legislation. On the positive side, certainly in modern times, it is strongly endorsed. On the negative side, legislation which is difficult or even impossible to access is still valid.

Dealing with the positive side first, the Welsh drafters regard accessibility as crucial with Hughes and Davies strongly supporting additional resources being made available in order that the public may have access to up to date versions of Welsh legislation.181 _{The head of Legislation Services in the UK} government has directly quoted Bingham’s element 1 before going on to state that ‘the principle of free public access to the law underpins legislation.gov.uk and the work of the Legislation Services team at The National Archives.’182 _{The High Court has spoken of the ‘constitutional imperative that}

176 _{John Mark Keyes, ‘Perils of the Unknown - Fair Notice and the Promulgation of Legislation’ (1993) 25}

Ottawa L Rev 579.

177 _{Jon Bing, ‘Let There Be Lite: A Brief History of Legal Information Retrieval’ (2010) 1 European Journal of Law}

and Technology <http://ejlt.org//article/view/15>.

178 _{Lord Justice Brooke, ‘Publishing the Courts: Judgements and Public Information on the Internet’}

(Commonwealth Law Conference, Melbourne, 15 April 2003). Another Australian judge made exactly the same point ‘the content of the law must be adequately accessible’ Murray Gleeson, ‘Courts and the Rule of Law’ (2001) <http://www.hcourt.gov.au/assets/publications/speeches/former-

justices/gleesoncj/cj_ruleoflaw.htm>.

179 _{Law Commission, Presentation of New Zealand Statute Law (Law Commission 2008). page iv.} 180 _{Suetonius, Lives of the 12 Caesars (Alexander Thomson translator, 1883) 278.}

181 _{Dylan Hughes and Huw G Davies, ‘Accessible Bilingual Legislation for Wales (Deddfwriaeth Hygyrch a}

Dwyieithog I Gymru)’ (2012) 33 Statute Law Review 103.

182 _{John Sheridan, ‘People, Patterns and Data - the Story of Legislation.gov.uk People, Patterns and Data - the}

Story of Legislation.gov.uk’ <http://www.socialtech.org.uk/blog/people-patterns-and-data-the-story-of- legislation-gov-uk/> accessed 20 January 2016.

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statute law be made known.’183 _{The courts have directly tied this requirement to the rule of law ‘the} acceptance of the rule of law as a constitutional principle requires that a citizen, before committing himself to any course of action, should be able to know in advance what are the legal consequences that will flow from it’.184 _{Lord Renton produced the highly influential Report on the Preparation of} Legislation in 1975.185 _{In Chapter XVI Renton discussed how computers would help and in that} context made some recommendations about access to legislation. He was in favour of a searchable database of legislation which contained copies of the law as enacted and the law as amended. Greenberg says that ‘it is of enormous importance that laws are made accessible to the public as soon as possible’.186 _{The Law Commission considered the importance of access to legislation in its} report on post-legislative scrutiny.187 _{After discussing the difficulty with reading out of date} legislation, particularly subordinate legislation, they made two recommendations. Firstly, that consolidated subordinate legislation be available rather than requiring users to try to manually piece together amendments themselves.188 _{Secondly, ‘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’.189

The government’s response came in 2008.190 _{They saw the benefit of consolidation, but were} concerned about the cost. With regards to electronic access, they discussed the Statute Law Database (the forerunner of the system now provided by The National Archives). They went on to say ‘the aim has been to present legislation in the most accessible and useable way, whilst maintaining the traditional strengths of immediacy and accuracy’.191

Within Parliament, the critical importance of access to legislation has not been gainsaid. The House of Commons Political and Constitutional Reform Committee carried out an inquiry into the quality of legislation. In the course of giving evidence to that Committee, Sir David Lloyd Jones stated that ‘it is fundamental that legislation, that the law in general, should be accessible and intelligible’.192 _{One of}

183 _{R (Salih) v Secretary of State for Home Department [2003] EWHC 2273 (Admin).} 184 _{Black Clawson v Papierwerke Waldhof (1975) AC 591, 638}

185 _{‘Report of the Renton Committee on the Preparation of Legislation’ (n 129).} 186 _{Daniel Greenberg, Craies on Legislation (9th edn, Sweet & Maxwell 2008).} 187 _{Law Commission, ‘Post-Legislative Scrutiny’ (2006) Law Com No 302.} 188 _ibid.

189 _ibid.

190 _{Office of the Leader of the House of Commons, ‘Post-Legislative Scrutiny - the Government’s Approach’}

(2008) Cm 7320.

191 _ibid.

192 _{Political and Constitutional Reform Committee, ‘Ensuring Standards in the Quality of Legislation’ (House of}

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the Committee’s recommendations was a Draft Code of Legislative Standards.193 _{One element of} this Code was that legislation should be accessible. The Leader of the House of Lords has stated that,

All Acts are published simultaneously on the Internet and in print as soon as possible after Royal Assent. It is important to ensure that an accurate approved text is published and that all users have access at the same time to the same text.194

The Select Committee on European Scrutiny, in its Fifteenth Report welcomed ‘access to legislation in a variety of databases’ (although this was in terms of European legislation).195 _{In a memorandum} to the Select Committee on the Constitution, Michael Ryle, former Clerk of Committees and

Secretary of the Hansard Society Commission said that the publication of statute law and the Statute Law Database were constitutionally significant. 196

However, the negative side is highlighted by two rules. The first is that, in the UK, ignorance of the law is no defence. The fact that a citizen doesn’t know the law is not an excuse for failing to observe the law (this principle is common in many jurisdictions). The second is that legislation is valid (and may therefore be binding) as soon as it is made. Therefore a person may be liable under an Act which has not yet been published, an Act which it would be impossible for the citizen to access. The justification for this rather unfair rule is set out by Austin. It is that every citizen is present in

Parliament by dint of being represented there by their Member of Parliament. So, the printing of the statute isn’t telling a citizen something new, it merely refreshes the citizen’s memory. Thus ‘for before an Act is printed, and whether it is printed or not, it is a statute and is legally binding’.197 _The Court of Appeal found itself bound to hold this statement to be true, ruling that ‘it is beyond

argument that an Act of Parliament takes legal effect on the giving of Royal Assent, irrespective of publication’.198 _{Allen ‘doubted whether many substantial hardships result from this’.}199 _{This is} because ‘most people become acquainted with the elements of the statutory or Common Law which affect them specially in their particular vocation or circumstance’.200

Very rarely, legislation comes into operation in advance of publication. One recent example is the Nationality, Immigration and Asylum Act 2002. It received Royal Assent on 7 November 2002 and s.

193 _ibid.

194 _{HL Deb. February 10, 2003 cc. 464-466, see also the government’s general obligation to publish the statute}

book, discussed in HC Deb. June 13, 1991 WA 613-614.

195 _{Select Committee on European Scrutiny, ‘Fifteenth Report’ (2003).}

196 _{Select Committee on the Constitution, Minutes of Evidence (April, 2004) para 17-18.} 197 _{John Austin and Sarah Austin, The Province of Jurisprudence Determined (J Murray 1861).} 198 _{ZL and VL v Secretary of State [2003] EWCA Civ 25 [17].}

199 _{Allen (n 158).} 200 _ibid.

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115 of that Act came into force immediately. However, it wasn’t actually printed until 28 November 2002. The Court of Appeal, with considerable unease, ruled that s. 115 applied from the 7

November 2002. 201 _{Contrast this with the decision by the European Court in Skoma-Lux sro v Celní}

ředitelství Olomouc202 _{that EU legislation is only enforceable against individuals if it has been} properly published.

Cabinet Office guidance is that an Act must be published online ‘immediately after the approved text has been received from the Lords Public Bill Office’. 203 _However,

Where an Act cannot be published before it takes practical effect, the department should seek to disseminate the final text of the relevant sections to those most interested, or their representatives.204

Although this makes a gesture towards accessibility, the quality of that access will invariably be poor.