An interesting aspect of domestic law-making is what I think of as the “invisible provisions”. Here is an example which finally made it off the statute books recently.
If, prior to the last week, you went to the Data Protection Act 1998 page on legislation dot gov dot uk, and opened the “latest version”, you would get the words:
Act repealed (except s. 62, Sch. 15 paras. 13, 15, 16, 18, 19) (25.5.2018) by Data Protection Act 2018 (c. 12), s. 212(1), Sch. 19 para. 44 (with ss. 117, 209, 210, Sch. 20 paras. 2-9, 17-25, 27-46, 53, 54, 58); S.I. 2018/625, reg. 2(1)(g)
Straightforward, then? It’s all been repealed (except for some minor provisions dealing with consumer credit and interpretation of Northern Ireland access to medical records law). And “repealed” means, “no longer in force”, yes? Well, not necessarily.
Because, what you wouldn’t see anywhere on the legislation pages for the 1998 Act, is paragraph 58 of Schedule 20 to the Data Protection Act 2018 (the Act that repealed the 1998 Act), where you will see “The repeal of a provision of the 1998 Act does not affect its operation for the purposes of the Privacy and Electronic Communications (EC Directive) Regulations 2003”.
So, even though the enforcement provisions of the 1998 Act were repealed, that repeal did not affect their operation for the purposes of enforcing PECR. They remained in effect even though they were repealed.
The commencement of section 115 of the Data (Use and Access) Act 2025 finally takes PECR enforcement away from the 1998 Act.
There are myriad examples of this. Take the Freedom of Information Act 2000. Nothing in its own provisions would suggest that its enforcement provisions also apply to the Environmental Information Regulations 2004. To understand that point, you have to refer to the Regulations themselves, which say “The enforcement and appeals provisions of the Act shall apply for the purposes of these Regulations as they apply for the purposes of the Act”.
How is one meant to know if an invisible provision is affecting a statute or other instrument? The simple answer is, you will only know if you know, or if you undertake sufficiently diligent research. Some have access to expensive legal research tools, but that’s not a luxury open to all.
All I can say is that it is a potential pitfall to be aware of, for anyone advising on the law.
The views in this post (and indeed most posts on blog) are my personal ones, and do not represent the views of any organisation I am involved with.
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