There have been some interesting landlord and tenant decisions coming out of the Court of Appeal recently.
Spencer v.Taylor, Charlambou v. Ng and now Edwards v Kumarasamy.
What these cases all show is that the Court of Appeal (and in particular Lord Justice Lewison) are deciding cases on what the legislation actually says – the words used – rather than what everyone thinks it says.
Or even what the Government says that it says. (For more on this read the excellent article by David Smith in Nearly Legal.)
This is as it should be. The wording of the law IS the law.
However it has caused a lot of problems for landlords, who tend not to read legislation ‘in the raw’ and who depend upon other people’s instructions to guide them as to the correct course of action.
So the fact that those instructions have turned out to be wrong has given them a lot of trouble.
Here are some issues which follow on from this:
1 The unfairness of litigation as a means to interpreting the law
It is not right that our interpretation of the law should depend on people taking cases to the Court of Appeal. Litigation is expensive and stressful for those bringing it, and it is unfair that they should have to do this due to inadequacies in the legislation.
I wonder sometimes whether a litigant should not be entitled to claim his costs back from the government if the sole reason for the case is a deficiency in the drafting of the act in question.
2. The importance of getting it right in the first place
The fact that interpretation is down to examining the words of the legislation throws down a challenge to the draftsmen – to use the right words.
Sadly our legislation is too often a jumble of jargon and cross referencing – making it almost impossible to understand what is being said without having several computer screens open at the same time.
Maybe when laws are being drafted they should get some ‘ordinary people’ to read them and report back on what they think they mean. This could help make them clearer.
3. Dealing with changes over time
Life moves on and we live in a fast changing society. Laws can quickly become out of date.
Witness the Torts (Interference with Goods) Act 1977. This sets out a procedure for people to follow when people are left with goods which do not belong to them – a position landlords often find themselves in when tenants leave things behind.
The act talks about letters being delivered by ‘registered post’ but does not mention emails or texts – which is how most people communicate nowadays. These did not exist in 1977. The act needs updating.
This is one reason why the Law Commission was set up in 1965, as an independent body to continually review, reform and codify the law.
However there is then the problem of the Law Commission’s recommendations not being acted on. As happened with the Renting Homes project in 2006.
4. The fitness of Parliament to make law
This leads on to the whole question of who should make our law. Parliament is our law making machine. However are MPs the best people to do this?
If you read the press, MPs come over as self serving individuals, governed largely by ‘knee jerk’ reactions to furore in the press and the desire to be re-elected. No doubt there is a grain of truth in this somewhere.
For example I am extremely worried about what ‘knee jerk’ laws might be passed as a result of the current housing crisis. The Rent Act of 1977 nearly destroyed the private rented sector in this country (which between the first world war and the early 1990’s, went from about 80% of households to about 8%).
Bringing back long term security of tenure for tenants and rent control would probably do the same again.
And finally
I suppose my conclusions from all this are:
- That we need to have clearer laws
- The the Law Commission is a vital part of the legislative process, and
- That we need to be careful what we ask for
What do you think?
Thoughtful piece Tessa.
I find when training council and housing association teams that there is a lot of misunderstanding on the laws they work with day in day out, especially when it comes to a situation slightly out of the norm.
In homelessness work particularly councils waste so much money picking up people they dont have to whilst turning away those who are legally entitled to a service.
For want of a few grand getting staff fully trained, millions are wasted, literally
Tessa raises some questions which are not easy to answer. We could have an interesting debate about how laws should be drafted and interpreted. The core problem, which in fact I think English law on the whole deals with quite well, is striking a balance between the need to do justice and the desire for certainty. You cannot get away from the fact that simple laws strictly enforced lead to injustice.
I keep telling them over on LandlordZone that legal drafting is trickier than most people think. Perfection in anything other than the simplest text is nigh on impossible. Even so, parliamentary counsel are supposed to be the crème de la crème and at times their drafting is simply not up to scratch. It does not give the appearance of having been peer-reviewed.
There has to be a balance between saying enough and over-elaboration. Some of the recent CA decisions have turned on what has not been said. In the Superstrike case the CA was quite right to hold that a statutory periodic tenancy is a new tenancy. The wording of the HA 1988 is clear on that. However the HA 2004 says nothing about whether a deposit is or is not deemed to be refunded and paid again when there is a new tenancy. Whilst in a discussion over on LLZ I did concede that there was an argument that a deposit could be deemed to have been refunded and repaid I never expected a higher court to endorse it. Whilst I suppose one has to accept that there has to be some merit in an argument accepted by the CA, in this case I wonder how even the most literate and logically-minded non-lawyer was supposed to work out that the law is as the CA says it is from reading the legislation. Applying the officious bystander approach in the Superstrike case would surely have achieved a different result.
I cannot help feeling that the CA has an agenda to send a message to Parliament that it needs to get its drafting right. They could do that by just telling them rather than making decisions which are justifiable only with a good deal of sophistry.