“Law but not law”

Most legislation today expressly states when it will commence. Commencement might take place on the date of royal assent, at a specified point in the future, or on a future date to be appointed by a minister. It is common for different sections of an act to be brought into force at different times and in different parts of the country, and there is often a delay of two or three months between royal assent and commencement. This gives those affected by the act time to understand any implications and make any necessary arrangements. Delegated legislation almost always specifies an exact date for its own commencement.

But there is a certain amount of legislation on the statute book which has never been brought into force. There are many possible reasons for this—difficulties in implementing the act as intended, differences of approach between the devolved nations, or perhaps a change of policy, minister or even government. There is no legal obligation for a minister to exercise a commencement power but there is an implied duty, and it was established in court in R v Secretary of State for the Home Department, ex p Fire Brigades Union [1995] UKHL 3 that a formal decision never to bring the provisions into force would be unlawful.

1. How much enacted legislation remains uncommenced?

For delegated legislation, there is no straightforward way of knowing. But for acts we can get an estimate of numbers by looking at ‘Is It In Force?’, a volume in the Halsbury’s Laws encyclopedia which contains details of commencements and repeals. A search for the phrase “not yet in force” in this publication returns 480 acts passed between 1960 and 2020 where at least one section or schedule is not yet completely in force.

Possibly the most famous example of legislation that has yet to be commenced is the Easter Act 1928 This act fixes the date of Easter Day as the first Sunday after the second Saturday in April, and it received royal assent on 3 August 1928. The act states, however, that before a commencement order can be drafted, “regard shall be had to any opinion officially expressed by any Church or other Christian body.” There have been attempts by the Christian churches (Catholic, Protestant and Orthodox) to agree a fixed date for Easter, but no unanimous opinion has yet emerged. MPs and peers have repeatedly raised the issue over the decades and some commentators have suggested that the Government could ‘have regard’ to the churches’ opinion simply by noting their position. But in response to a written question in January 2020, the Government said it “has no plans” to bring the legislation into force.

Other legislation yet to be commenced includes:

• The Estate Agents Act 1979 includes a provision to ensure that estate agents satisfy minimum standards of competence. The section has never been commenced. The then Earl of Kinnoull noted at the time that Parliament had been trying to legislate in this area for the past 90 years. As recently as 2018 the Government promised to bring forward a consultation on minimum competency requirements.
• The Disabled Persons (Services, Consultation and Representation) Act 1986 contains provisions for disabled persons to appoint an authorised representative. In 1989, the then Government emphasised that implementation of these sections “would depend on the availability of the necessary resources” and the following year Lord Allen of Abbeydale worried that the sections “will probably never be enforced”. At present—36 years later—the provisions remain uncommenced.
• The Political Parties and Elections Act 2009 contains provisions which would prohibit political parties from accepting a donation of more than £7,500 from an individual who is not resident in the United Kingdom for the purposes of income tax. In 2019, a decade later, several written questions were submitted in the Commons regarding these sections, but the answer was that the proposals were now deemed “unworkable” due to their complex nature. The Government confirmed in March 2022 that there are no current plans for commencement of the sections.
• Much of part 3 of the Digital Economy Act 2017 has not yet been fully commenced. Part 3 deals with age verification for accessing online pornography. There have been repeated questions to the Government over this part of the act, and Lord Morrow tabled a private member’s bill in the 2021–22 session, designed to force part 3’s commencement. The Government has said that, rather than commencing the provisions, it intends to repeal part 3 and instead “deliver these protections through […] wider online harms regulatory proposals”. Governments have the option to seek parliamentary approval to repeal provisions they do not wish to commence. The new proposals are set out in the Online Safety Bill, which at time of writing has (unusually) been sent back to Committee stage in the Commons for further debate.

2. What is the response from parliamentarians?

Members of both Houses regularly take issue with uncommenced legislation. Written and oral questions are frequently asked on the subject, either generally or in relation to specific sections of acts. Commencement orders were also the topic of a question for short debate in the Lords in 2013. In addition, there have been reports from various bodies (such as the Statute Law Society in 1980, the Hansard Society in 1994, and the Lords Standing Committee on Procedure in 1995–6) which have contained suggestions for improvement. But commentators note that at present the only remedy is political—either bringing pressure to bear on ministers or ensuring cast-iron commencement provisions at the drafting stage of the bill.

Sections of acts which are not yet in force are few in comparison to the overall volume of legislation and in many cases deal with technical details. Nevertheless, there are areas of legislation where policy has gone uncommenced. In 2013, Lord Norton of Louth stated that these provisions “occupy the confusing position of being law but not law” and noted that responsibility for ensuring commencement “rests as much with Parliament as with Government”. This sentiment is echoed in Bennion, Bailey and Norbury on Statutory Interpretation, which states “there are plenty of examples of legislation that has remained uncommenced for many years after it is passed. The remedy lies with the legislature”.

3. Read more

• ‘Commencement, duration and retrospection’ in Bennion, Bailey and Norbury on Statutory Interpretation, 2020, chapter 7
• ‘Commencement’ in Craies on Legislation, 2020, chapter 10.1
• Ian McLeod, ‘Why not fix the date of Easter?’, Justice of the Peace, 2009, vol 173, p 232