Problems with access to legislation

by Laurie Anstis on March 26, 2013

Put yourself in the position of a litigant in person.

You think you haven’t been allowed enough holiday. You’ve heard that the Working Time Regulations have something to say about holidays, and you send in a claim to the employment tribunal.

Your employer hires lawyers to reply to your claim. In their defence, they talk about how regulations 13A and 15A of the Working Time Regulations 1998 apply to your case.

You don’t know anything about regulations 13A and 15A, but you are willing to have a go at looking them up. Maybe the employer’s lawyers are right. Maybe those regulations mean that your case isn’t as strong as you think it is.

So you go to the official online copy of the Working Time Regulations. But you won’t find regulations 13A and 15A there. That’s because regulations 13A and 15A were only added later as amendments and “UK Statutory Instruments are not carried in their revised form on this site.

Is there anywhere where this legislation is carried in its revised form? Not anywhere I can find outside the costly services of the likes of LexisNexis or Westlaw.

If you are particularly determined, you’ll find that regulation 13A was added by the Working Time (Amendment) Regulations 2007 and that regulation 15A was added by the Working Time (Amendment) Regulations 2001 – but how do you know that they haven’t been changed since those amendments. There is no way of knowing that the 2007 Regulations also made changes to regulation 15A.

It isn’t an easy task to keep track of all the various amendments. That’s one of the reasons why the legal publishers can charge so much for their services. But in an era where the number of litigants in person is expected to increase it would be good if a litigant in person could have ready access to up-to-date versions of the law they were supposed to be using.

[Note: the FAQs on the legislation.gov.uk site say that they aim to provide revised versions of primary legislation, but even that it isn’t necessarily totally up to date. They say “All legislation held on legislation.gov.uk in revised form has been updated with effects of legislation made up to 2002 (except for some effects of 2002 legislation that were not yet in force at the end of 2002). About half of all items of legislation are also up-to-date to the present. The FAQs do hold out the prospect of all primary legislation eventually being up-to-date, but only “selected secondary legislation”.]

4 comments

Very true. But it looks like someone doesn’t want ordinary people to have access to the most basic materials either. If you go to http://www.justice.gov.uk/tribunals/employment/rules-and-legislation you will find the 2004 Tribunal Constitution and Rules of Procedure Regulations, the 2004 Amendment Regulations, the 2005 Amendment (No.2) Regulations and the 2008 Amendment Regulations. What you will not find is a single up to date version of these fundamental materials. How hard could it be?

by Mark Benney on 26 March 2013 at 6:22 pm. #

Although it’s not free, I’ve found in the past that the service from emplaw.co.uk is pretty good – and cheaper than the likes of LexisNexis

by Craig on 27 March 2013 at 9:58 am. #

I am working with The National Archives’ Legislation team on developing their secondary legislation publishing. I’ll email you for input on priorities.

by Nick Holmes on 4 April 2013 at 12:51 pm. #

Interestingly, the EAT page of the Justice website includes a user-friendly amended version of the applicable appeal procedure rules. The number of appeals to the EAT is minuscule compared to the number of claims to ETs on an annual basis – so why cannot there be consistency of approach? It is ironic in some ways because the majority of people consulting the appeal rules are likely to be lawyers capable of working out the amendments for themselves, or indeed with access to other (probably paid-for) resources, whereas the majority of those looking at the ET rules are likely to be non-lawyers.

by Mark Benney on 4 April 2013 at 1:20 pm. #