Transparency and Accountability in Subordinate Legislation Contents

5 Conclusions

Timing of publication

5.1The practice of secret law can never be condoned. New law must be readily available as soon as possible after it has been made and those affected by changes in the law must be protected from being subjected to changes in the law before they have had a reasonable opportunity to understand and prepare for the changes (subject to paragraph 2.22 above). Accessibility to the law is part of due process.

5.2The Committee takes this opportunity to stress that it will continue to draw the special attention of Parliament to instances where we consider there has been unjustifiable delay in publication or in laying before Parliament.

5.3Unless there are exceptional circumstances and as a general rule, the Committee considers that a period longer than 10 calendar days is unjustifiable delay.

5.4The Committee will also continue to draw special attention in its reports to instruments which in its view come into force unreasonably soon. It may do so even in relation to instruments which are not subject to the 21 day rule. Therefore, Departments should aim to give Parliament and those affected a full opportunity to be aware of any instrument (including orders which are not required to be laid) before the instrument takes effect.

Correction of errors in published law

5.5The legislative intent of an instrument must be achieved by the text of the instrument made in the proper way and not by later editorial adjustments made by civil servants.

5.6The default assumption for the correction of errors in subordinate legislation is that an amending instrument should be used (subject to the limited exceptions in paragraphs 3.10 to 3.13 above).

Accessibility to the law

5.7Documents 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. Details of where both electronic and hard copies of such documents are available should be given in the instrument itself.

5.8It is important that Departments remind their drafting lawyers of the importance the Committee attaches to legislative accessibility and update any internal guidance to the extent that this has not already been done.

Published: 12 June 2018