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By Sally Thomas and Rachel Buchanan
It is estimated that 50 million words make up our national body of laws, collectively and colloquially known as ‘the statute book’. In theory this statute book should allow all citizens to be informed of their rights and obligations but in reality, the legislation and the accompanying commencement information is so confusing that the Good Law initiative has been launched to make laws necessary, clear, coherent, effective and accessible.
Take for example the Welfare Reform Act 2012, which introduced universal credit. There have been 16 commencement orders made under this Act, four of which have themselves been amended. The first 27 sections of it all have five or more different possible commencement ‘scenarios’, none of which give an actual calendar date but are conditional on other events, for example;
“In the case of certain claims, the first day of the period in respect of which the claim is made or treated as made and in the case of certain awards, the first day on which a person is entitled to universal credit under that award”.
Work that one out if you can.
For all 151 sections and 14 schedules, there are more than 20 different commencement dates as well as complicated transitional and savings provisions.
In fact, according to parliament legislation expert David Natzler, 10 to 15 thousand changes are made to existing statute law by new statutes every year. As he put it, laws “are not for the faint hearted”.
Even the government admits it can’t keep up:
“It is extremely difficult to estimate how much legislation is in force at any one time” a Good Law research document states, adding: “The vast number of legislative effects and their complex interconnections mean that currently the legislation.gov.uk database is not currently entirely up-to-date”.
“Even legally qualified users frequently complain about the excessive complexity of legislation and often tend to read the explanatory notes accompanying the Bill, rather than the legislative text.
John Sheridan, head of legislation at the National Archives, explained in a lecture on the future of legislation that the content of laws is ultimately dictated by the methods by which it is drafted, the format in which it is presented, who is accessing it and why. The ‘statute book’ is about to explode.
Search for outdated laws on the internet and you can find a wealth of articles listing supposed outdated laws which are still in force. If you’re lucky, the writer will have listed under which act this so called law is made. It is then possible to try and find the law and work out whether indeed it is still in force. The majority of the ones that we checked were repealed in one form or another, but in places, the legislation had not been sufficiently updated, so to the casual observer, it was rather confusing.
Take for example, the myth that gambling is prohibited in libraries under the Libraries Offences Act 1898, s 2 (3). This was actually repealed by the Gambling Act 2005 s 356(1), (4), Sch 16, Pt 1, para 2, Sch 17 but the editorial team has yet to make the changes to the online freely available version of the legislation despite the fact that it has been in force since 1 September 2007.
Or perhaps the commonly held ‘fact’ that it is illegal to ride in a taxi when suffering from the plague. In actual fact, that while the legislation (Public Health (Control of Disease) Act 1984, s.33 (1) (b)) states that
“No person who knows that he is suffering from a notifiable disease shall… enter any other public conveyance without previously notifying the owner or driver that he is so suffering”
and a notifiable disease is defined under s.10 as a) cholera; (b) plague; (c) relapsing fever; (d) smallpox; and (e) typhus this was actually repealed by the Health and Social Care Act 2008, ss 130(1), 166, Sch 15, Pt 3. You’d need to consult a doctor to see whether any of the notifiable diseases are still possible to catch but regardless of whether this has been technically repealed it’s still probably best practice not to go out in a taxi if you have a contagious disease.
The alternative to repealing legislation is the current process of adding caveats to existing legislation. The following are among a host of illegal events listed under the Town Police Clauses Act 1847:
Your punishment, should be caught doing any of these?
“Every person who in any street, to the obstruction, annoyance, or danger of the residents or passengers, commits any of the following offences, shall be liable to a penalty not exceeding [level 3 on the standard scale] for each offence [of which he is convicted before the justice], or, in the discretion of the justice before whom he is convicted, may be committed to prison, there to remain for a period not exceeding fourteen days”
The square brackets were inserted by various amendments – the “of which he is convicted before the justice” by the Criminal Justice Act 2003, s 304, Sch 32, Pt 2, para 149 therefore rendering those offences still technical offences without having to actually repeal the legislation. So while technically you could be convicted for beating or shaking a carpet or rug after 8am, in practice, you’re unlikely to fall foul of the law unless there is far more to the situation.
While the statute book itself might be as clear as mud, what is clear is that something needs to be done to make our laws accessible to everyone. Consider the sheer quantity of primary and secondary law and the interactions between them and what you have is one giant can of many-segmented worms. It might just be one that needs opening.
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