Firstly, what is a “legal register”?
Before answering the the question “when does a company need a legal register? “It is important to ask the question “what is a legal register?” In understanding what a legal register is, one needs to distinguish between a legal register and a legal library, both phrases are commonly used and often confused.
A legal library is either an electronic or hard copy of different Acts, By-laws and Regulations that are populated to a designated website, intranet or housed in a hard copy library.
A legal register on the other hand is a legal library that is organised into the specific legal provisions applicable to a specific company for specific operating units/sites or for a company as a whole. It is a general interpretation of the applicable legal provisions, which states, in layman’s terms, what the company has to do to meet the specific requirement set out in each specific section, subsection, paragraph and subparagraph. It is thus not only a copy of the relevant legislation and other legal requirements, but also an identification of which legal provisions apply in which set of conditions, and the interpretation of the identified legal provisions.
A legal register thus contains a smaller volume of legislation and other legal requirements than a legal library, but far richer meta-data, which empowers greatly improved search and interpretation for the user.
Legal registers are often used in the domains of environment and health and safety (together “EHS”) as well as energy, food safety, information security and quality. An EHS legal register is a legal register that contains all EHS legal provisions applicable to a specific company and its business units/sites. This blog will focus on EHS legal registers. However, the the reasoning is equally applicable to the legal registers of other domains.
A good EHS legal register is kept up to date:
- daily, as the applicable legal provisions change
- annually, on review of how the operational activities and other attributes of each business unit/site of the company have changed.
Notifications of changes in the applicable legal provisions should be communicated, daily, to the people within the company who are tasked with maintaining compliance with EHS law at the company, on a business unit or site-specific basis.
A good EHS legal register is also comprehensive (has all of the applicable legal provisions included) but also includes legal provisions restricted only to the scope of the operations of the company.
A good legal register has rich meta-data appended to each applicable legal provision and rich search capabilities in order to assist the users of the legal register to find the legal provisions relevant to a particular legal query they may have, exactly at the users moment of relevance.
When does a company need a legal register for its operations?
This question may be broken down into sub-questions. They are:
Question 1: Legally, does any company need EHS legal registers?
Question 2: In terms of ISO 14001 or OHSAS 18001 or the IFC EHS Guidelines (the “EHS Management Standards”), does any company need EHS legal registers?
Question 3: For other reasons, does any company need EHS legal registers?
Question 4: Thus, when does a company need EHS legal registers?
Question 1: Legally, when does a company need a legal register?
The answer to question 1, which could also be read “is there a legal requirement that obliges any company to use EHS legal registers”, is simple. The answer is no; there is no law which obliges this.
Question 2: In terms of the EHS Management System Standards, when does a company need a legal register?
The answer to question 2, namely “In terms of the EHS Management Standards, does a company need EHS legal registers?” is also no.
However, the answer to question 2 is not as clear-cut as the answer to question 1. There are a number of provisions in the EHS Management Standards that deal with “legal and other requirements”. For example clause 4.3.2 of OHSAS 18001 (very similar to ISO 14001):
“The organisation shall establish, implement and maintain in a procedure(s) for identifying and accessing the legal and other requirements that are applicable to it.
The organisation shall ensure that these applicable legal requirements and other requirements to which the organisation subscribes are taken into account in establishing, implementing and maintaining its OH & S management system.
The organisation shall keep this information up-to-date.
The organisation shall communicate relevant information on legal and other requirements to persons working under the control of the organisation, and other relevant interested parties.”
Thus, although the term “legal register” or “legislation register” is not used, these requirements need to be met should any company wish to continue managing its environmental and occupational health and safety (“EHS”) domain through management systems aligned with the EHS Management Standards or be certified by ISO 14001 and/or OHSAS 18001.
The requirements of the EHS Management Standards mean that operational risks need to be identified to be managed and linked to the legal requirements. Thus, in terms of the EHS Management Standards, operational risk is required to be linked to legal risks. What is the best way to do this? There are some very cumbersome and time-consuming ways employed by companies to meet these requirements. Good EHS legal registers, properly deployed within a company, can easily be linked to Risk Assessments to ensure a correct list of all legal provisions is permanently linked to each operational risk.
Not all legal registers are created equal. Legal registers have evolved from paper, to CD, to web, to the semantic web (“Web 2.0”).
Different providers of legal registers vary according to whether the legal register will:
- simply “tick a box” (enable the site to pass its EHS Management Standard audits) or be genuinely useful;
- be intimidating to use or be user-friendly;
- require legal training and years of experience to find the correct answer, or have the
- answer quickly available to the user at her moment of relevance;
- be updated quarterly (or even less frequently) on a non-site specific basis, or be updated in real-time, on a site specific basis, with daily change notifications sent when applicable; and/or
- provide too much, too little, or just the right amount of information.
So, the question then becomes “what is the best manner to meet the requirements of the EHS Management Standards?” The industry best-practice answer to this question is “through the correct deployment of an advanced, automated and user-friendly legal register.” Whether one calls it a “legal register” or not, where technology can be used to speed up and reduce the costs of understanding a company’s legal obligations and ensuring that the obligations are met, such a platform should be used.
Question 3: For other reasons, when does a company need a legal register?
In the same way that the law does not mandate, for example, bookkeeping software to be used, or management systems do not require computers to be used, there are sound reasons to use both these innovations in order to increase efficiency and accuracy, reduce human error, and ultimately drive costs down when it comes to empowering business units/sites and responsible individuals to know, understand, and comply with their legal obligations.
This question stands outside of the other two questions and is always relevant, even if a company were to make the strategic decision not to align its management systems with international standards.
A legal register is a tool for managing a business problem, which arises from the complexity of the applicable legal provisions and management standard requirements, coupled with the complexity of the company’s operational activities (the “Business Problem of Complex Legal Obligations”). Whether a company needs a legal register or not, is not a legal question but instead, a business strategy question. “Is a legal register the best tool to address the Business Problem of Complex Legal Obligations?”
The question may be phrased, “what is the best way to ensure that this company’s employees at each business unit/site know what the legal obligations (and legal risks) are for any given topic or operational risk?”
Legal registers in general are not necessarily the correct solution to the Business Problem of Complex Legal Obligations. As stated above, not all legal registers are created equal. Indeed, paper-based legal registers and those that rely on software but are poorly organised and presented, may leave the user in the same or even a worse position: intimidated by the sheer volume of body of knowledge and its complexity, unable to use the legal register and address the Business Problem of Complex Legal Obligations.
Thus, a good legal register, which solves the Business Problem of Complex Legal Obligations, should be presented on a legal register platform that:
- automates as much as possible and takes the “heavy lifting” off the shoulders of in-house legal so that their expensive skills may be better deployed in the company;
- removes the complexity from knowing what the legal obligations are, at all levels of the company;
- allows users to handle the vast body of legal knowledge by knowing the answers to specific questions in “bite size” answers at the touch of a button, with the option to read more;
- is updated in real-time up as the applicable legal obligations change;
- is supported technically and by people knowledgeable in the applicable legal and operational domains, so that user queries can be addressed immediately; and
- is seamlessly linked to each operational risk and delivers the up to date answer about which law applies to any given line (risk item) in a risk register on the click of a mouse.
Another complimentary solution for addressing the Business Problem of Complex Legal Obligations may be training and examination of employees to ensure that employees know what legal obligations apply for any given topic, from national and general law to specific by-laws and regulations, including when those obligations change, at all times, as well as the associated offences and penalties. This solution however, will never be a complete solution and is costly if utilised frequently. In-house legal counsel may be inundated with questions that take much time to research and answer, questions that a good legal register can answer at the touch of a button. Unintended consequences will result, such as employees asking incorrect or unhelpful questions because of the sheer time taken to research the important questions.
From user statistics from the Standards & Legal Platform, it should also be noted that the employees of companies, working on the ground (at the sites) are using the Standards & Legal Platform frequently. In a 90-day period, an average of 18 separate logins per business unit/site by users (sample of 160 sites) is observed. Also, an average of 224 pieces of applicable EHS legislation is also noted per site, which gives rise to an average of approximately 4,000 applicable EHS legal provisions applicable per site.
Question 4: Thus, when does a company need a legal register?
When a company has complex operations, which give rise to material EHS operational risks, that company is then faced with the Business Problem of Complex Legal Obligations.
When a company is faced with the Business Problem of Complex Legal Obligations, a good legal register is the best solution. Because not all legal registers are created equal, and thus some legal registers are not “good,” it is crucial that a company employ a good legal register to address the Business Problem of Complex Legal Obligations. The attributes of a good legal register are set out under question 2 above.
A company will find it most efficient and effective to deploy a good EHS legal register on a business unit/site-specific basis, when:
- that company has complex operational activities, which give rise to material EHS operational risks and where that company is thus presented with the Business Problem of Complex Legal Obligations; and/or
- when that company has aligned its EHS management systems to the requirements of the EHS Management Standards, or is preparing for certification.
Finally, there are a number of fairly common misconceptions about legal registers, which, if held, create an impression that legal registers are not the best solution to the Business Problem of Complex Legal Obligations. Read about these misconceptions here.