The Standard Is the Regulation

A regulation is public by definition. It is published, codified, freely available, and a citizen can read exactly what is required of them.

That holds until the regulation says a thing must conform to a standard published elsewhere, at which point the operative requirement leaves the public record entirely.

The rule permitting this is called incorporation by reference. It lets an agency adopt an external document as binding without reprinting it.

The reasoning is practical and hard to argue with. Technical standards run to hundreds of pages of tables, and reproducing them inside a regulation would make the code unusable.

The standards themselves are mostly written by private bodies: committees of engineers and industry representatives who do genuinely expert work over long periods.

That work is funded by selling the resulting document, which is how the organisations exist, and which becomes a problem the moment the document becomes law.

The codified regulations will tell you that an installation must meet a particular standard. They will not tell you what the standard says.

To learn that, you buy it, and the price is set by an organisation with no obligation to consider that the buyer may be complying with a legal requirement rather than pursuing a commercial interest.

The scale is substantial. Thousands of such references sit across the code, covering construction, electrical work, food handling, transport and a great deal else.

The problem is sharpest where the standard is not merely technical but definitional. A rule requiring that a material be of a certain grade means nothing at all until you can read the document that defines the grade.

For a firm with a compliance department this is a line item. For a small operator, a self-builder or a citizen trying to establish what the law requires, it is a wall.

The register publishes the incorporations, and the notice is meaningful only in the sense that it tells you a document exists that you cannot read for free.

The legal position is genuinely unsettled and the arguments on both sides are serious. Nobody may hold a copyright in the law; a private standard is a copyrightable work.

When the second becomes the first, one of those propositions has to yield, and courts have been reluctant to say which in terms broad enough to settle the matter.

There is also a democratic question underneath the access one. A committee that writes a standard destined to become binding is exercising delegated authority, and its membership is determined by who can afford to send people to meetings for years.

The standards bodies make a real argument. Remove the revenue and the committees stop, and the alternative is agencies writing technical standards themselves, which they lack the capacity to do well.

Read-only access has emerged as the compromise, and it is better than nothing. It is also not the same as a document being public.

A right you can inspect but not copy, print, search properly or annotate is a limited right, and it is an odd shape for something that carries criminal or civil liability.

The enacted statutes face no equivalent problem, which sharpens the oddity. The primary law is freely available and the operative detail beneath it is not.

That is not an accusation of capture. It is an observation that expertise and interest are hard to separate in a body funded by the industry whose conduct its documents will govern.

The obvious resolution is that an agency incorporating a standard should acquire the right to publish it, and price that acquisition into the rulemaking as a cost of regulating.

That converts a burden currently borne by every regulated party, unevenly and invisibly, into a single disclosed public cost, which is what a public obligation ought to look like.

It would be resisted by the bodies whose funding model it disrupts, and their concern about who then writes the standards is legitimate and would need answering.

What is harder to defend is the present arrangement, where the answer to a citizen asking what the law requires of them is a purchase order.