The recent case in which Counsel for Revenue & Customs had to apologise to the Court of Appeal for relying on regulations that were five years out of date has drawn much comment. For a report, see Frisby Law, a new blog from the firm of Ruthie, one of the UK’s founding blawgers.
Toulson LJ states:
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.
- First, the majority of legislation is secondary legislation.
- Secondly, the volume of legislation has increased very greatly over the last 40 years. The Law Commission’s Report on Post-Legislative Scrutiny, (2006) Law Com 302, BAILII:  EWLC 302, gave some figures in Appendix C. In 2005 there were 2868 pages of new Public General Acts and approximately 13,000 pages of new Statutory Instruments, making a total well in excess of 15,000 pages (which is equivalent to over 300 pages a week) excluding European Directives and European Regulations, which were responsible for over 5,000 additional pages of legislation.
- Thirdly, on many subjects the legislation cannot be found in a single place, but in a patchwork of primary and secondary legislation.
- 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.
That case concerned confiscation orders, but let’s apply the principle to employment law. Remember, if you’re an employee presenting a case in the employment tribunal you do not have recourse to any legal aid. The principle is that it is a forum in which you can represent yourself. But can you look up the law that applies to your case? The only port of call for Joe Public is the government’s own information sites, OPSI and the Statute Law Database. So our imaginary Claimant looks up the Employment Rights Act 1996, in which most of our employment laws are found. But what does he find?
So we have a copy of the Act, but without the last five years’ worth of updates. Indeed, the SLD version even goes straight from s98 to s99 – but as we all know this particular Act now sports a shameful ss98ZA – 98ZH, s98A and s98B. Hilariously, the dispute resolution regulations will have been introduced, failed, and been repealed without the SLD text being troubled at any point.
So the brief answer is that the unrepresented Claimant can’t do any meaningful legal research using free resources. Given the complexity of the law, the availability of costs orders where a claim is misconceived, and the unavailability of legal aid, I wonder if there are Article 6 implications. Refusal of legal aid where it is crucial to the presentation of a party’s case can constitute interference with Article 6 rights. One even has to wonder whether ignorance of the law being no excuse is compatible with our legislation being impossible to decipher. The now oft-quoted preface to Archbold 2009 states in relation to criminal law:
It has been a recurring theme of the preface to this work that there is far too much criminal legislation. The willingness of the Labour Government to continue its practice of legislating by trial and error has shown no signs of abating even in its eleventh year in office… The state of the criminal statute book is a disgrace. The Criminal Justice and Immigration Act 2008 is the usual hotchpotch of measures, with no theme, with much of the detail tucked away from close scrutiny in the schedules, and consisting in large part of textual amendment to earlier legislation. Much of the amendment is by way of undoing this Government’s earlier legislation.
This issue is a timebomb. Concerned practictioners and campaigners could do worse than visit Nick Holmes’ page for the Free Legal Web project.