4.1Subordinate legislation sometimes refers to and gives significance to another document. This may be done for a variety of purposes. Examples include—
4.2In observance of the principle that legislation should be publicly available, information must be given about how to access such documents.
4.3Although Departments invariably accept (in memoranda to the Committee) that they should make clear where electronic and hard copies of documents given an importance in legislation are available, the Committee continues to see instances where the availability, particularly of hard copy documents, is not given.
4.4Failure to make documents accessible is reported for failure to comply with proper legislative practice as part of the residual ground at the end of paragraph 1(B) of House of Commons Standing Order No. 151 and paragraph 73(2) House of Lords Standing Order No. 73.
4.5The Committee is aware that Departments no longer produce numerous hard copies of documents referred to in legislation and that they are increasingly making documents available free of charge on the Internet. The Committee does not disagree with this practice, as a significant part of the population has easy access to the Internet and prefers to access documents electronically. However, the Committee has repeatedly stressed its concern that documents given a significance by subordinate legislation should be available both to citizens who do not have access (or ready access) to the Internet and to citizens who do have such access. It should not be made unnecessarily difficult for persons without easy access to the Internet to perform their legal obligations or assert their legal rights.
4.6The Committee’s view is that availability details should be given for both electronic and hard copies of the relevant document. If the document is not available electronically, access to hard copies alone will suffice. Availability details must be given in the instrument itself (see paragraph 4.8 below). Where details for access to electronic copies is given, references to website addresses should be specific or the website should be easy to navigate to from the address given.
4.7Making available hard copies of a document which has a distinct legislative effect cannot be ruled out on the grounds of being too expensive. A Department has the option of making a hard copy of the document available for inspection only. In limited cases, for example, where the document referred to is not produced within Government, electronic and hard copies of the document are not available free of charge and must be purchased. In these circumstances, the Department should give details of a place where the document can be inspected free of charge.
4.8Information on the availability of documents referred to in legislation should be included in the instrument itself (either in the footnotes or the Explanatory Note) rather than in the Explanatory Memorandum. This is helpful for readers who might not be aware of, or think to access, the Explanatory Memorandum. In the Committee’s opinion, the Explanatory Memorandum (which is routinely laid before Parliament with statutory instruments) provides valuable background information about the policy intention and the legal context; but it should not be used for basic information which readers require in order to understand the effect of the instrument such as access information for documents on which the instrument relies.
4.9Accessibility to legislation is a general principle of obvious importance for the maintenance of the rule of law. In addition to access to subsidiary legislation, other accessibility issues sometimes arise to which the Committee will draw attention.
4.10For example, the Committee does not consider it acceptable for the font used in a statutory form to be so small that it is difficult or impossible to decipher the wording. The Committee is clear that the principle of accessibility of legislation requires that hard copies of forms sold by the National Archives or produced from their website in the normal way should be capable of being read without difficulty.
4.11The issue of accessibility to the law also arises in the context of steps required to be taken by legislation. Unless there is express power to the contrary, where legislation, for example, requires an application to be made, it should not limit the application to an electronic application and should allow for the possibility of a hard copy application. To restrict a person’s right to use paper and post is a sufficiently significant change in access to justice to require it to be addressed in the enabling power by express provision.
4.12Although the Committee’s concerns regarding accessibility to the law are important in all cases, the issue is more acute when the instrument is of general concern to members of the public as opposed to, say, only a small number of well-resourced commercial organisations who can be expected to have stayed abreast of legislative developments concerning them through correspondence with Government Departments or in other ways.
36 Twenty-third Report of Session 2014/15 in relation to S.I. 2014/3283
37 For recent examples, Eleventh Report of Session 2017/19 in relation to S.I. 2017/1251; Seventh Report of Session 2017/19 in relation to S.I. 2017/943; Fifth Report of Session 2017/19 in relation to S.I. 2017/669 and S.I. 2017/706 and Fourth Report of Session 2017/19 in relation to S.I. 2017/268 and 2017/336.
38 Twenty-ninth Report of Session 2010–12 in relation to S.I. 2011/1551.
39 Tenth Report of Session 2015/16 in relation to S.I. 2015/1646.
40 Seventh Report of Session 2017/19 in relation to S.I. 2017/943.
41 Second Report of Session 2016/17 in relation to S.I. 2016/336.
42 Fourth Report of Session 2017/19 in relation to S.I. 2017/366 and Sixteenth Report of Session 2016/17 in relation to S.I. 2016/1024.
Published: 12 June 2018