Forgotten Law (Part 1)
As the 2015–17 Parliament draws to an end (the shortest Parliament since 1974), its predecessor Parliament of 2010–15 feels like a distant memory. Yet spare a thought for that Parliament and, in particular, all of the legislation passed therein which has been forgotten about.
Unimplemented legislation is a particular bugbear of mine. Unlike sensible jurisdictions like Canada — where legislation left unimplemented after nine years is automatically repealed, unless the Parliament specifically votes otherwise — laws passed by the UK Parliament can remain on the statute books for years, even decades, gathering dust and confusing lawyers and non-lawyers alike. Perhaps the most famous example, the Easter Act 1928 — which would introduce a new and standardised date for Easter (the first Sunday after the second Saturday in April) — has been sitting on the statute books for almost 90 years neither being brought into force nor put out of its misery through repeal.
It is fair that governments sometimes need time to prepare for the implementation of laws — making sure that the people affected know what will be changing and to set up any processes needed to ensure that there will be a smooth transition. But, save for in exceptional or unforeseeable circumstances, there should never be a delay of more than a year or two once an Act of Parliament has received royal assent.
As such, I decided to undertake a review of the Acts passed in the first session of the Parliament (an unusually long one stretching from May 2010 to May 2012) to see what, five years later, remained unimplemented. The findings of this review can be found here, but to summarise:
Between May 2010 and May 2012, 49 Acts of Parliament were passed:
- 7 were finance or money-related Acts, all of which came into force immediately upon royal assent.
- 8 non-money Acts also came into force immediately upon royal assent.
- Of the remaining 34 Acts: 23 are fully in force; 5 only have minimal provisions which have not yet been brought into force; 4 have a small but significant number of provisions which have not yet been brought into force; and 2 have a large number of provisions which have not yet been brought into force.
The review shows that, in a small number of cases, there are understandable reasons why certain provisions have not been brought into force, but in the majority of cases, there has been no reason given by the government as to why it is not (or not yet) bringing certain provisions into force.
Keeping track of what provisions of Acts are and are not in force is far more difficult than it should be. While the explanatory notes to commencement orders do now specify which provisions have previously come into force, there remain a number of barriers to easy identification:
- The table at the end of commencement orders does not include provisions brought into force by that commencement order or those which come into force by virtue of provisions of the Act itself, making the table incomplete.
- In many cases, provisions are not brought into force in their entirety or for all purposes. Only part of a section or schedule may be brought into force, or only for certain purposes. This information is not clear from the tables in commencement orders.
- Government departments rarely announce ahead of time when provisions are going to be brought into force and even more rarely announce when decisions have been made not to commence certain provisions.
- Finally, many uncommenced provisions are not repealed, simply lying on the statute book and confusing readers.
So, what should government departments do? I have a few suggestions:
- As far as possible, specify in the Act itself the date at which provisions are going to come into force.
- Draft clauses and schedules so that they can come into force in their entirety and not only partially or for certain purposes.
- Amend the table at the end of commencement orders so that it includes (a) provisions brought into force by virtue of provisions of the Act itself, (b) provisions brought into force by that commencement order, and (c) identify explicitly what provisions have only been partially brought into force or only for certain purposes.
- Announce as early as possible after royal assent the planned dates for implementation of the Act’s provisions. Keep this updated.
- If a decision is made not to bring provisions into force, announce this and give the reasons why. And then repeal them as soon as possible.
(Parliamentary copyright images are reproduced with the permission of Parliament)