Legislation – always playing catchup?
Posted on 29th Dec 2015 in Points of Law
When the Incorporated Council of Law Reporting (ICLR) was set up in 1865 its Objects of Association included the publication, not only of case law, but also statutes. As ICLR celebrates 150 years of providing reliable, accurate reporting of legal information, Paul Magrath looks at how its approach to legislation has changed, and the unending task of keeping it up to date.
The evolution of law
People think of the common law as something always evolving, the fittest rules being replicated through case by case mutation to adapt themselves to new and different circumstances. Well, statute law is also evolving in its way. Existing provisions are always being amended by later ones. For case law, we can use the Cases Judicially Considered section of our printed Consolidated Index (aka the Red Index), or check the Citator+ facility on ICLR Online, to see whether the status of a precedent has been affected. Has it been reversed by a higher court, or overruled in a later case? Or is it still good law, affirmed on appeal, and applied elsewhere?
Likewise, if we need to check whether a section in a statute is still in force as enacted, or has been amended or repealed, we could use a printed Table of Effects, or consult a consolidated edition such as Halsbury’s Statutes. Until comparatively recently, however, the only online platforms capable of providing a fully consolidated service were securely – and expensively – behind a paywall. The official printed publications by HMSO (now TSO) and until recently an authorised version published by ICLR only contained the statutes in their original unamended form. You had to use a table of effects to jigsaw together the amended version.
A statute law database
The launch of the Statute Law Database in 2006 was a (long overdue) revolution in the provision of free public legal information. It managed to get the current statutes (those still wholly or partially in force since 1991) online quite quickly, but the task of incorporating all the subsequent repeals and amendments was slow and cumbersome. Until recently, editors could incorporate up to 10,000 amendments each year, but the government would produce 15,000 new ones in the same period! It was like painting the Forth Rail Bridge with a toothbrush.
It was only after the service was taken over by the National Archives in 2010, and relaunched as www.legislation.gov.uk under a team of editors and developers led by John Sheridan, that the service was able to even approach the goal of maintaining an up to date edition of the Statute Book.
The process of consolidation
Earlier this year I spent some time learning how this process is done and actually carried out some of the amendments myself. It was fascinating. Instead of approaching the task of consolidation as a single process involving the research and incorporation of each amendment in turn from start to finish, the new system developed by John Sheridan’s team now divides the task into two separate processes.
The first process involves capturing from each new or later piece of legislation all the effects it may have on earlier legislation. All these effects are fed into a database. The second process involves taking each Act in turn, and accessing the database to export a table of effects for that statute. These can then be quickly incorporated all in one go, even if there are successive amendments creating a series of different versions over time. This means it is possible to display the version of a statute as it existed at different points in time (a feature which has been in place since the days of the SLD but which did not often have the data in place to support it.)
The second process is much easier, and can be performed by editors after a relatively short training. In my case, I spent three days at the National Archives in its idyllic landscaped grounds near Kew Gardens under the tutelage of Clare Allison, Expert Participation Manager, who masterminded the development of the new editorial system. By the middle of the second day, I was able to undertake amendments by myself. The statutes allocated to me would have a list of amendments to be carried out for particular points in time. The actual editing is done in XML using an editor called Xmetal, which is similar to the Arbortext editor we use for XML editing at ICLR. The text to be inserted or substituted can be copied and pasted from amending document. Each amendment is accompanied by a footnote indicating its source and date. The whole thing is really not that complicated. But you will be relieved to know that each amendment is checked by another, more senior editor, just to make sure!
In case you wondered, the statutes for whose amendments (or some of them) I can be held personally liable were the Hovercraft Act 1968, the Coinage Act 1971 and the Protection of Wrecks Act 1973. It is very satisfying to see the last of these, at least, displayed on legislation.gov with a green banner announcing that “There are currently no known outstanding effects” to it. These green banners are increasingly replacing the pink warnings of outstanding effects not yet incorporated.
Legislation and ICLR
The reason why I was so interested to engage with this process at first hand was that in July this year (a beta version was on display at this year’s BIALL conference in June), ICLR launched its legislation service, using the National Archives’ API (application program interface) – which they welcomed us doing, it being part of their remit to provide open data for reuse by publishers such as ICLR. So you can now search and retrieve statutes and statutory instruments within ICLR Online. We know that users are anxious about the up-to-dateness of the statutes on legislation.gov.uk and we want to reassure users that the process of painting that Forth Bridge is now being conducted with a great big paint roller, and the National Archives hope to complete the job by the end of the year.
So watch this space. And look out for more developments on ICLR Online in the new year.
Paul Magrath is Head of Product Development and Online Content at ICLR. A version of this article first appeared in the British and Irish Association of Law Librarians (BIALL) Newsletter in November 2015.