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Statutes in limbo: the campaign is not won until the law has been brought fully into effect

21 May 2013 4 Comments

Statutes e1369131820346 150x150 Statutes in limbo: the campaign is not won until the law has been brought fully into effectRESO/Rex Features
By Will Macgregor

The passing of the Defamation Act 2013 was the cause of great celebration among campaigners for libel reform. This post is not concerned with the legal and social merits of that piece of legislation, which questions I will leave for more learned correspondents. No, amid all the excitement, and prompted by posts on Twitter from @JackofKent and @HalsburysStats, I was struck, as is my wont, by a seemingly minor and technical point of statute law. This post therefore concerns a more general point about the coming into force of Acts of Parliament.

The difference between a statute being passed and actually coming into force is not well understood outside the legal community. This is perfectly understandable since, on the face of it, the passing of an Act by Parliament would appear to be the end of the matter. Instinctively one would assume that, Parliament having exercised its will, any reform of the law contained in a new Act would immediately have effect. But, as every law student knows, this is not necessarily so. In fact, in most cases the date on which a new Act comes into force is delayed by months or, as we shall see in some cases, years. In the meantime, the new statute exists in a strange state of limbo, both part of the statute book, yet of no legal effect.

The principle of delaying the commencement of a new statute is perfectly sound. The idea is that the legal and wider community is given time to understand and prepare for the changes in the law. It also gives government departments and other bodies time to prepare or change their systems and processes in order to administer the revised law. (One might naively wonder whether such things oughtn’t to have been thought about *before* the legislation was passed, but no matter.)

Most statutes will therefore contain a provision delaying commencement by one, two or three months, to a specific date in the future, or, most commonly, to a “date to be appointed by [the Minister] by order”. So in most cases Parliament delegates the power to bring a statute into force (and give it legal effect) to the executive. A surprising fact.

This is the case with the Defamation Act 2013, which, barring some technical interpretation and transitional provisions, comes into force “on such day as the Secretary of State may by order appoint” (with equivalent powers for the Scottish Ministers in relation to certain sections of the Act that extend to Scotland).

How long might libel reform campaigners have to wait to see commencement of the new Act, then? A point of reference is the previous Defamation Act (of 1996). That Act was passed on 4 July 1996. Section 19 provided that some provisions of the Act came into force on that date, that some others came into force two months later (4 September 1996), but that most would come into force on such day as may be appointed by the Lord Chancellor and Secretary of State.

As it happened there was a bit of a wait. In England and Wales those remaining provisions weren’t brought fully into force until February 2000, some three and a half years after royal assent. Scotland had a longer wait, with the remaining provisions not being brought fully into force until March 2001. Northern Ireland, extraordinarily, had to wait until January 2010 to see the Act fully in force.

Of course this doesn’t mean that the Defamation Act 2013 won’t be brought into force promptly, within a few months of its passing. But it illustrates the point that commencement can take a very long time. It also raises the interesting question as to whether a determined Minister (or succession of Ministers) could frustrate the will of Parliament and delay commencement indefinitely.  The answer appears to be yes.

The most famous (and perhaps egregious) example is the Easter Act 1928, passed to fix the date of Easter in the calendar year as “the first Sunday after the second Saturday in April”. This Act is still, at the date of writing, awaiting commencement. An extraordinary delay of almost 85 years. Admittedly, the Act does place an additional requirement that, before making an order bringing it into force, “regard shall be had to any opinion officially expressed by any Church or other Christian body”. This opinion, as I understand it, has always and will continue to be unfavourable, and no Minister has felt strongly enough to pursue commencement. But the point remains that Parliament expressed its will that the Easter Act be passed in 1928, and its will has effectively been frustrated for almost a century. One has to assume that Parliament does not pass Acts expecting them to have no effect. It is frankly bizarre that the Easter Act has been left on the statute book in limbo for this length of time.

More recently, Part 2 of the Family Law Act 1996 was enacted to reform matrimonial law, and made provision for the introduction of “no fault” divorce and so-called “information meetings” to encourage reconciliation. After a series of pilot studies, the government of the time decided in 2001 that the reforms were undesirable and unworkable and that they would not bring Pt 2 of the Act into force. They indicated as a result, that that Part would be repealed “once a suitable legislative opportunity occurs”. In fact, that opportunity has still not yet occurred some 12 years later, and the provisions remain on the statute book (although the Children and Families Bill, before Parliament at the time of writing, does finally contain provision for their repeal).

Another recent example  is the “custody plus” provisions of the Criminal Justice Act 2003, which would have ensured that adult custodial sentences of less than 12 months would have consisted of a short period of custody followed by at least six months on licence. These provisions were never brought into force by the government that proposed their enactment because of concerns over their affordability (concerns which one might have expected to have been addressed *prior* to their introduction to Parliament) and were repealed by the following government in December 2012.

This is not to suggest that these particular examples are or were good law or that they deserved to be brought into effect, but to illustrate the point that enactment is not the end of a statute’s journey. There is a further step, commencement, which can take many years, and can in fact be delayed indefinitely.

The point here for those campaigning for libel reform, and indeed for any reformers of the law, is that vigilance must be maintained after enactment. Although the passing of a reforming Act is a major step, the campaign is not won until the law has been brought fully into effect. Ministers must be pressed on their plans for commencement to ensure that implementation is not allowed to drift into years, or even indefinitely.

 

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4 Comments »

  • Finola Moss said:

    A timely warning to guard against destruction of the law by stealth.

    Is there any mechanism to force a government to bring an act into force? And has it ever been used effectively?.If not, this could be a very useful tool for a determined, undemocratic, totalitarian establishment,to prevent changes in the law they do not like.

    If it is not possible to make the law enforceable,democracy would be defeated,and there would be little point to parliament.

  • Jeffrey Shaw, solicitor at Nether Edge Law said:

    I agree. Why not a Statute Law (Repeal of Uncommenced Provisions) Act?
    Every provision enacted over one year earlier but not yet brought into force should be repealed with immediate effect from enactment of the U.P. Act. It might also include a section whereby:
    a. every uncommenced provision comes into force- by operation of law- one year after enactment of the uncommenced provision; and
    b. further such unimplemented provisions could be repealed by SI.

    Keep Statutes Tidy!

  • Mrs Markleham said:

    Finola: There is one famous case I know of where the government was challenged for failing to bring sections of a statute into force. In R v Secretary of State for the Home Department ex parte Fire Brigades Union [1995] 2 AC 513, Parliament had enacted a new criminal injuries compensation scheme in the Criminal Justice Act 1998, with the usual power for the Home Secretary to choose when to make a commencement order. When the Home Sec announced he would not bring it into force at all, but would use his existing powers to create an entirely different (and cheaper) scheme, he was taken to court by way of judicial review, and ultimately lost in the House of Lords. The Lords ruled that the Home Sec had discretion as to when to introduce the statutory scheme and was not under a legal duty to appoint a commencement date, merely to keep the question of time of implementation under consideration.

    However, while the new statutory scheme remained on the statute book (albeit not in force) he could not use his existing powers to create an entirely different scheme. In other words, his options were either to (a) implement the new statutory scheme, (b) carry on with the existing scheme but keep the question of when to implement the new scheme under review, or (c) ask Parliament to repeal the new statutory scheme.

    In short, where Parliament has given a minister the unfettered power to decide when to bring a statute into force, there is no remedy for the minister’s failure to bring the law into force per se, but there is at least some restriction on what the minister can do in the mean time under existing powers.

  • Finola Moss said:

    Thank you Jeffery and Mrs Markelham for these very interesting answers.

    This is certainly a fundamental problem with the law, and it would be very useful if someone could take the time to actually research the sections of Acts that have never been brought into force within say the last 10 years, depending on the legal importance of the issue, and move for an MP to get them in force,as they are the law. .

    It appears a frighteningly easy, and hidden way to avoid democracy and stealthfully craft the law into that which government, rather than parliament want.

    Surely someone should monitor the issue and ensure it does not become a serious abuse of process.