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Thursday, 26 July 2012

Understanding legislation

For Halsbury's Law Exchange

Thomas Pascoe in the Telegraph gives a familiar layperson’s lament about the amount and complexity of legislation in the United Kingdom. He complains that since the Second World War

Legislation has become more ambiguous and full of clauses, warrants and exemption as time has gone by. This is largely because politicians have incorporated the evasive language of their television appearances into their legislating.

Not only this, but perfectly serviceable 19th to mid-20th century legislation has been repealed and replaced with new laws which recreate the same offences but in a more confusing, less comprehensive manner.

Mr Pascoe is right to say that the substantially increased amount of legislation of the past few decades was at least partially a reaction to the Second World War. Indeed, it might be argued that nothing less than the whole raison d’ĂȘtre of the state itself – and the legal system with it – was fundamentally and irrevocably altered by both
of the world wars, together with the intervening Great Depression.

In 1910 some 25% of state expenditure was on the navy. The welfare state was in its infancy, much of the country lived in abject poverty, industry was wholly privately owned and employment rights protection was minimal to say the least. It was because the state felt no option other than to commit itself to “total war” – where all economic activity was to be directed to the war effort – that it intervened in so many aspects of life that had previously been thought none of its business. The modern regulatory state which is responsible for the enormous amount of legislation and regulation of the present day was thereby born.

The regulatory state was extended by the need to reprise total war in the Second World War, and extended further still by the need to rebuild the country afterwards. Two world wars had left the electorate demanding fundamental changes to society, reflected in the victory of Attlee’s government with its programme of social reforms requiring unprecedented levels of state intervention.

Mr Pascoe is on shakier ground, however, with his proposals as to how the complexity of modern legislation might be remedied. He argues:

It is absolutely crucial that in future laws are drafted in such a way that they make clear to anyone reading what is contained. (...)

Unfortunately, such a measure would require an impartial body to vet the language in which legislation is phrased.

Rather than create even more work for lawyers, I would suggest that we look to the jury system.

If a panel of 12 literate people drawn at random from the population are able to understand a law then it is clearly drafted. If they find it full of ambiguity and evasion then they must send it back for redrafting.

The idea that legislation might be drafted in an unambiguous way readable by any reasonably well educated lay person is not new, but neither is it remotely achievable.

Currently a popular topic is the absurd complexity of the tax system, which gives rise to the loopholes that have been attracting a lot of headlines. Certainly there is a fundamental problem with the tax system, namely the fact that it is used for reasons other than collecting revenue, as I discussed in an earlier blog. But that does not mean Mr Pascoe’s wish for understandable legislation can be achieved.

A few years ago the-then Constitutional Affairs Minister Harriet Harman said that a new bill was “for the first time” being offered in “plain English” as well as the normal legalese. She led the public to believe that the two versions would appear side by side and at long last the public could actually grasp what an Act of Parliament meant without any professional advice.

In fact no such “plain English” version existed. All that happened was that the usual explanatory notes were more extensive than normal. This was no great surprise – imagine the potential for confusion and argument if there were to be two versions of the same Act.

Of course there is always room for improvement in drafting and anyone could come up with historic examples of hopelessly badly drafted sections, or even whole acts. But there are also limits, and it is here that Mr Pascoe’s thesis falls down. Shortly after Ms Harman’s announcement I had the following letter published in the Times (June 17, 2006):

The Constitutional Affairs Minister Harriet Harman seems to have forgotten that legislation is complex because human activity, which it seeks to regulate, is also complex, and as a result law is a specialist subject, just as with architecture or medicine. The only way that a paper on new heart transplant techniques could be rendered intelligible would be if the reader had studied the subject — and was hence no longer a member of “the public” — or if the paper were simplified to the point where it was more or less completely unhelpful to a surgeon.

The example you give of an apparently plain English provision bears this out. You report that the Offences Against the Persons Act 1861 states: “It is an offence to cause a riot.”

Perfectly plain, until someone is charged under the section and it has to be determined what “caused” and “riot” mean in context.

My view has not changed since. There are countless legal terms that contain special meanings, and indeed whole legal concepts that are fictions (constructive trustee, for example) that it would be idle to pretend a layperson could understand – any more than they could fully understand the blueprint for a new office tower or, as I said in the letter, a paper on heart surgery.

Incidentally, much modern regulation is handed down to us by Europe, leaving Parliament little choice in its wording, but Mr Pascoe’s colleagues at the Telegraph usually have a ready answer to that point ...

Monday, 16 July 2012

Combating corruption in a global business environment – HLE panel discussion

Last night Halsbury’s Law Exchange, in partnership with international law firm Eversheds, held its second panel discussion for 2012. The subject was combating bribery and corruption in a global business environment. The panel was chaired by Khawar Qureshi QC. Other panellists were Peter Binning of Corker Binning, Neill Blundell of Eversheds, Susannah Cogman of Herbert Smith LLP, Felicity Gerry of 36 Bedford Row, Ben Rose of Hickman and Rose, and Satnam Tumani of the Serious Fraud Office (SFO).

The event was introduced by the Solicitor General, Edward Garnier QC, who spoke of the current consultation for Deferred Prosecution Agreements (DPAs).

As expected, there was robust and lively debate about the entire process of prosecuting fraud, including whether the SFO had adequate resources, whether it should be targeting more than simply the high end of the corruption scale, whether DPAs were a suitable means of achieving justice, whether the sentencing regime was adequate, and what lessons could be learned from the way in which the United States deals with corporate corruption.

The Solicitor General was keen to emphasise that DPAs were an additional weapon, not a substitute for any existing method of combating crime. He also reiterated the government’s commitment to the SFO.
The event will be uploaded to Youtube in due course, and will be of interest to all who work in this area and indeed anyone engaged in international business.