Law is confusing
I get very annoyed sometimes about the state of our legislation. It gets more and more difficult to find out what a law actually says, or what you are supposed to do to comply with it.
Most laws now start off with a general Act setting out what is intended. Then various bits of it come into force at different times, depending on when the government has managed to get the necessary structure in place. Backed up by separate regulations which say how whatever-it-is is actually going to work.
So often when reading an act (should you ever want to do such a thing) you can have no idea whether or not it is in force, or exactly how the system will work in practice.
Definitions and cross referencing
Then there is the habit of defining something once and then just referring to it all the time. If is extremely confusing to have to keep referring to other bits of what could be a long statute.
This can also lead to enormous confusion. For example, if there are a lot of definitions, it may be difficult to work out how important the various bits being referred to, are to one another. For example in the recent Court of Appeal decision in the Tiensia case, the Judges strongly criticised the legislation (which contained a lot of this cross referencing) for being so confusing and difficult to understand.
It would be a lot better if the draftsmen, rather than just referring to different sub sections all the time, just said straight out what it is that they mean. Or is this too simple an approach?
Its unjust and unfair
Legislation, our laws, set out what we are supposed to do and how we are supposed to do it. Some laws carry big penalties, or can have serious consequences, if we get them wrong. Isn’t this a bit unfair on people if the legislation is so complicated it is impossible to understand?
If laws are so impenetrable that you need an expensive lawyer to explain them to you (or in extreme cases, a Supreme Court decision to clarify them), then how can ordinary people be expected to comply with them?
The case for plain English
In their (September 2005) guidance on unfair terms in tenancy agreements, the Office of Fair Trading, looked at the requirement for consumer contracts to be in plain English. In particular they criticised long sentences, elaborate definitions and extensive cross references. They warned that such clauses are likely to be found unfair (and therefore unenforceable) if found in a consumer contract.
Its a rare act of Parliament these days which does not have any long sentences, elaborate definitions or cross referencing. I don’t remember seeing any. Not important acts anyway.
Isn’t there a case for treating obscure laws in the same way as obscure contracts? Consumer legislation anyway. What do you think?
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Absolutely. You have been practicing for long and you still find it annoying, then just imagine how general people may feel. A lot of people simply fail to understand the court notice sent to them from their lenders or from the landlords.
Some of the phrases can be interpreted in many ways and can actually have different meanings. There should be a simpler version written in plain English.
We have to be very careful about notices. As a solicitor if I change the standard wording of a notice to make it more readable, that may affect its validity. If my client then loses his possession claim I can be sued for damages.
Solicitors generally only use wording which has been previously approved by a court, because then they know that their client will not lose his case.
Although it is important that the tenant understands a notice, a solicitors main duty is to the client, the landlord (or mortgage company), to make sure that his case is not compromised.
But we solicitors are not the ones who make the laws. We just have to work with them as best we can.