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How to Spot Guidance that is not really Guidance

Written by Garth Watson
on January 23, 2017

If you've ever been on the hunt for a legal register you'll probably have come across the certain aspects of:

  • Identifing the applicable legal requirements
  • Keeping up to date with changes in legislation and regulation
  • Accessing supporting guidance documents
  • Linking legal requirements to risk assessments

In this series, we "look under the hood" at these aspects of legal registers.

Previously in this blog series, we've answered the question: "what is a Legal Register"? We've had a look at the problem of the "as amended curse" and the need for consolidated, up to date legislation. We've also examined some of the difficulties of identifying applicable legal requirements, and we've shown how keeping up to date with changes to regulation is more easily said than done. 

So, let's have a look at the third one:

Access the relevant legislation and supporting guidance documents

What one really needs is a way to figure out, simply, what the law requires one to do at any place, at any time. There are limits to what legal registers can do. The type of guidance that is typically given by legal register providers (and certainly by those who advocate company wide legal registers, from which a manager must determine "which operations" are subject to "which statutory instruments") is on a topic specific basis.

For example ( in the environmental legal domain for example's sake) you may be able to access an excellent, say three page, overview of the legal position for each of air, waste, water etc. The thing is, this is very similar to the kind of guidance that one would find in a first year university environmental law course reader. It's good, it's true, but it is general, and of little value in answering the question, for any operational site operating in a unique context, "so what must we do?", "what does the law require us to do here?" Each of air, water, and waste, as well as other topics, are broad in nature. There are a myriad of sub-topics, and also, there are a number of operational aspects to which specific legal sections apply.

The second kind of broad guidance that may be offered is "per legal instrument" types of guidance. The thing to be on the look out for here is that this kind of guidance often is not specific enough and it can be a bit cumbersome. Its kind of like the scene in the Castle...

https://www.youtube.com/watch?v=wJuXIq7OazQ

Regulations do not apply in their entirety and thus it is seldom useful to have guidance issued on a regulation by regulation basis. This is useful to lawyers that have hours to figure out which laws apply, but it is of little value to compliance professionals, or managers of management systems, in figuring out what an operation's obligations for a specific risk are. When it comes to specific operational aspects and risks, its almost never that one regulation that applies as a whole, but it is that case that a few sections from "this regulation", and a few from "that regulation" etc. actually apply.

In our final post in our Legal Registers Series [Part 4] we are going to discuss linking legal requirements to risk assessments.

Go to Part 4

 

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