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Thursday, 19 February 2009

Hiding The Law Is No Defence


Bizarre, but true: the most frustrating thing about providing legal advice is actually finding the law. I'm not just talking about judgments, but also the statutes and regulations that burst out of Westminster like confetti at a wedding. It would be interesting to measure the cost of this inaccessibility, because it seems likely to be one of those nasty, unseen root causes of a lot of other problems, not the least of which could be higher legal bills, delay and the exorbitant cost of legal information services.

One impact was highlighted recently in a case in which HM Revenue & Customs inadvertently misled the Court of Criminal Appeal, no less, as to the relevant regulations in force until the "11th hour", when a Revenue lawyer spotted the problem while researching another case. Other cases may have been decided on the wrong regulations.

Given the law is ultimately there for our protection, it won't be much help if it's hidden.

The Free Legal Web initiative recommends 3 ways to improve the situation:
"Firstly, let’s improve access to existing legislation. This is the task OPSI have and it is one which FreeLegalWeb is addressing. But this is applying sticking plaster to the wounds.
So, let’s improve legislation via new legislation! The Leader of the House of Commons is on the case, describing the several ways in which the Government is simplifying and consolidating legislation. But that does not address the huge corpus of remaining existing fragmented legislation.
The third way we can improve access to legislation will be by far the most effective and it does not appear yet to have attracted any public discussion - and that is to improve the legislative drafting process. Legislation is drafted by the Office of Parliamentary Counsel and it is therefore to the OPC that we should look for the answer. To do their job in preparing amending legislation OPC need to work from a consolidated version of the current legislation. Why cannot that be made available to us?"
Indeed.

But I also think we could escalate the issue on the demand side of the equation. Representatives of consumers, SME's and large corporates alike should be demanding ready access to the statutes and regulations that govern our affairs. That should include not only the likes of the CBI and FSB, but also public sector representatives like BERR (doesn't "better regulation" include better access to it?). Even industry-specific bodies could get in on the act (excuse the pun) . The FLA would do well to insist that the Consumer Credit Act and regulations, fully annotated as endlessly amended, should be freely available online in all its ugly glory. And any self-respecting public information provider should be making the same demands - not only the likes of Which? but also DirectGov and Consumer Direct.

While it's perhaps not the sort of grandiose issue that The Great And The Good relish as a chance to strut their stuff on the dais at the Guildhall, it's actually the sort of "small" or "administrative" issue that needs their extra careful attention. As Ghost Dog famously recalled:
"Among the maxims on Lord Naoshige's wall, there was this one: "Matters of great concern should be treated lightly." Master Ittei commented, "Matters of small concern should be treated seriously."
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