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"One Does Not Simply Identify Applicable Legal Requirements"

Written by Garth Watson
on January 20, 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.

In a previous posts 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.

So, let's dive in and have a look at the first aspect..

Identify the applicable legal requirements

This one is super interesting. To summarise the "as amended curse", If you don't have access to consolidated, up to date, legislation you will struggle to find out what the law actually says, and instead of being able to do your job, you'll be doing the job of a legal librarian or lawyer in figuring out the starting point. To have a fighting chance of being able to identify applicable legal requirements, you must have access to consolidated up to date legislation or use a service provider who has such access.

Be sure to identify the sections, not just the Acts & regulations etc.

The objective of identifying relevant legal requirements is so companies and their employees can know, in simple terms, what the law requires of them. Extracting the simple legal obligations from the large, ever changing body of regulation is much more easily said than done.

Step one is to narrow down the total number of legal instruments on the statute books to those that contain at least one legal obligation that applies to at least one of your operations. This narrowed down list is what some refer to as a legal register. This task though, is a little more complicated than it would appear at first glance. In order to be sure that you have made sure you have all law, you cannot just rely on reading the titles of the statutory instruments. You will actually have to read every single section of every single Act.

If you are responsible for a certain legal domain, for example environmental legal compliance, this task is not easier. This is because there are sneaky sections of law that are environmental in nature, but are hidden in the deep recesses of statutory instruments that are not obviously environmental in nature, either in title or in description.

Step two of achieving the objective of extracting obligations from the list of applicable statutory instruments is to extract the sections and make them available in a simply accessible format, through integration with a management system, to employees.

Of any given statutory instrument that may apply to one or more of your company's operations, (and therefor be on your legal register) only a small fraction of the sections per instrument will be directly applicable. It's not of much use to you, or your company to say Regulation x of 1995 applies to us. The question is, which sections apply of the regulation apply, and what do they mean, for your company's operations, and ultimately, what must you do to comply?

It's one thing to try to figure out which statutory instruments may apply, but it is an altogether different and much more time consuming exercise to figure out, and find which sections of those regulations apply to your company's operations. Your company's legal obligations are obscured in a vast amount of legalese and code that is better navigated by a legal librarian, lawyer or LegalTech platform.

Diverse operations and geographies compound the problem

If you manage the legal compliance for a company group or a company with diverse operations, the applicable legal instruments, and the applicable legal sections within those legal instruments will vary from operation to operation based on the nature of the operations and the locations of the different operation. This complexity is actually too much to be handled in a manual, non-centralised manner.

Having a favourites folder or a separate legal register on an online platform that has access to all law, including amendment Acts or a legal register for each operation that is derived from Excel may help you to pass your management system standard audits, but this will be a very time intensive process and the the chance of having missed out on applicable legal sections, which may have legal liability attached is simply too high.

Most legal registers on the market today are "one size fits all" and rely on you to tailor them and do all of the work set out above. When it comes to legal liability, that is a major risk and one that should not be taken lightly, it should be appropriately handled through the use of the best LegalTech and legally trained compliance professionals together.

To be frank, using a typical legal register approach will end up being a lot more costly to you and your company, both in time and money. The cost of lost working hours and possible liability will exceed the saving you will make using a typical "legal register" method to legal compliance.

In the next post we'll have a look at how to "Keep up to date with changes in legislation and regulation" and dive a little deeper to understand what to look out for when it comes to this.