‘Digital-by-design’ rule for 3,000 in-force acts – report

The Law Reform Commission (LRC) has today published a report on the accessibility of legislation in the digital age, with a focus on the need to make legislation-as-amended more easily available online.

The report makes a wide range of recommendations as to how legislation – in particular acts of the Oireachtas, which constitute the main source of law in the State – can be made available online in a more consolidated and comprehensive way.

Over 3,000 acts are in force (of which 1,000 are pre-1922 acts from before the State was established).

Amended format

The vast majority of these acts have been amended many times, but they are not all available in their up-to-date, as-amended format.

The LRC says this is not satisfactory from a number of perspectives, including:

• The constitutional or rule of law perspective – it is vital that all citizens have access to the law as it currently stands,
• The economic and digital policy perspective – improving online access to legislation is consistent with the State’s policy on reducing the cost of doing business,
• The ‘digital by design’ policy, including GovTech, which involves applying emerging technologies such as advanced data processing to improve the delivery of public services.

The report notes that there have been significant improvements in recent years in making legislation in its enacted form available free online, including on the electronic Irish Statute Book (the eISB), managed by the Office of the Attorney General, and on the Legislative Observatory of the Houses of the Oireachtas.

Tracks

The LRC also tracks all amendments to all acts (through the Legislation Directory), which is also available through the eISB.

The report also points out that, over the years, a number of areas of law have been brought together in single consolidation and reforming acts. These include:

• Taxes Consolidation Act 1997,
• Social Welfare Consolidation Act 2005,
• Land and Conveyancing Law Reform Act 2009 and,
• Consumer Insurance Contracts Act 2019.

In addition, the LRC maintains and updates administrative consolidations, called revised acts, of over 380 acts on its website.

These include all textually amended acts enacted since 2005, and over 100 much-used acts enacted before 2005.

Today’s report seeks to build on these significant improvements by proposing additional methods to make more legislation, whether as enacted or in its amended form, available online in this digital age.

It examines how other countries have addressed these problems, for example:

• Enactment of comprehensive codes of legislation, such as the legislative codes in the United States, where all federal law can be found online under 54 subject-headings, called Titles, of the United States Code: one of its best-known is Title 11, the bankruptcy code,
• Consolidation of priority areas of legislation, such as in New Zealand and Wales, where planned programmes of consolidation must be presented to their parliaments.

The LRC recommends that the New Zealand and Welsh approaches are best suited to Ireland at present, although the development of comprehensive codes of legislation, such as those in the US, should remain a possible long-term goal.

Key recommendations

The report therefore recommends that a more structured approach to the consolidation of acts, and of revised acts, be put in place. 

• There should be planned programmes of consolidation of acts, which should be organised over defined time periods of five years,
• The planned programmes should be overseen by a multi-agency group, the Accessibility and Consolidation of Legislation Group (ACLG).

Inclusion

The following areas should be considered for inclusion in the first planned programme of consolidations:

• Road traffic legislation,
• Employment legislation,
• Gambling control legislation,
• Sale of alcohol legislation,
• Monuments and archaeological heritage legislation,
• Consumer protection legislation,
• Landlord and tenant legislation.

The LRC itself should, in collaboration with the proposed ACLG, continue to prepare planned programmes of revised acts.

Electronic Irish Statute Book

The online version of legislation on the electronic Irish Statute Book (eISB), which is the principal source of legislative data in the State, should be given presumptive official status (as has already occurred in many other European states and for EU law), provided that the online version is accompanied by a qualified electronic signature that complies with the 2014 EU Regulation on the mutual recognition of electronic identification and signatures (the eIDAS Regulation).

Information and Communications Technology (ICT) should also be used to its full potential in making legislation more accessible online: this should include:

• Linking relevant information with the actual text of legislation, including
• Background reports,
• Regulatory impact analyses (RIAs),
• Pre-legislative and post-legislative scrutiny reports by the Oireachtas,
• Relevant case law from the courts.

Finally, the proposed ACLG should prepare and publish guidance on legislative policy standards.

The report also provides some examples of the current difficulties in finding legislation, for example, the up-to-date road traffic law, including the law on drink-driving.

For example – the Road Traffic Act 1961 was an important consolidating act intended to bring together the main provisions on road traffic law.

Road traffic code

However, since the 1961 Act was enacted there have been more than 20 road traffic acts as well as provisions in other acts that now form what might loosely be called the “road traffic code.”

This makes it extremely difficult to ascertain what the law on road traffic is at any given time. Users also have to examine over 900 statutory instruments made under these acts to get a complete picture of the road traffic code.

Drink-driving

It is difficult to trace the current position concerning the offences related to drink-driving, probably the offences on the statute book most subject to legal challenges and appeals (because a conviction carries automatic disqualification from driving).

The complexity of the law in this area was criticised in one of the last judgments delivered in the Supreme Court by the late Mr Justice Adrian Hardiman in Oates v Browne [2016] IESC 7, in which he said that the law had been repeatedly amended in a piecemeal manner to the point that this area of the statute book had become “positively misleading”. 

Further detail can be found in the report.