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."

Consumer Protection from Unfair Trading Regs 2008

I've given up my attempt to independently summarise the Consumer Protection from Unfair Trading Regulations 2008 ("CPRs" in the trade), and am simply going to refer you to what the OFT and BERR seem to make of them.

Oh, alright then. To summarise briefly:

• Regulation 3 bans unfair commercial practices - basically anything unacceptable from an objective professional standpoint which is (or is likely to) change an economic decision of the "average" consumer. In other words, because of the practice the consumer buys (or sells) what they would not otherwise have bought (or sold), or fails to cancel a transaction that they would otherwise have cancelled.
• Regulations 5-7 prohibit commercial practices which are misleading (whether by action or omission) or aggressive, and which cause or are likely to cause the average consumer to take a different decision.
• There are 31 practices that are prohibited in all circumstances - regardless of whether or not they actually affect a consumer.
• Oh, and this is all backed by criminal and civil enforcement powers and remedies.
  

Of course, this is fantastic example of EU overkill. There is simply no major consumer problem in the UK that deserves a whole swathe of new regulation which is harmonised with Greece.

Okay, so there are still dodgy traders, but we have TV shows that doorstep those guys for fun.

But some lawyers are getting pretty worked up about these regulations from a compliance standpoint (did I mention the criminal and civil enforcement provisions?). But this misses the wood for the trees. Any consumer-facing business that is reliant on these sorts of practices for its bread and butter has heavy cultural issues to contend with, and these issues could go right to the top of the tree. Cultural change is tough, and it isn't driven from the compliance coal face alone.

Which is why I enjoy advising Web 2.0 businesses - as they are predicated not only on treating consumers fairly, but enabling consumers to ensure that they are treated fairly.

Interesting issues for some eBay power sellers, though, and I guess there may be some old sharks who'll find themselves with a fine or making licence plates.

Lest we forget, there are also changes to the comparative and misleading advertising regulations. Basically, the Business Protection from Misleading Marketing Regulations 2008 ("BPMMRs"):

• prohibit advertising which misleads traders (Reg 3);
• sets out the conditions under which comparative advertising is permitted (Reg 4) - including the condition that the ad must not be misleading either under Reg 3 or the CPRs (see above);
• requires traders and bodies responsible for codes of conduct or monitoring compliance with such codes not to promote misleading advertising and comparative advertising which is not permitted (Reg 5).

And, unlike the rather limp Advertising Standards Association advertising codes, these puppies have teeth - criminal and civil enforcement remedies and nasty accompanying powers.

West End ad agencies will never be the same again.

HM Nanny Bombs in Nuclear Clean-up

HM Nanny is in fine fettle, commanding the nation's workers to get healthy and demanding that kids must wait until they're 18 before hurtling around the country's roads (which will help the ailing job figures, by the way, to the extent that these unreliable teens might dare to drive to work).

These subtleties are what really count in government. After all, three quarters of the country wants the government to tell us how to live our lives in detail.

So, there was no sense in Gordo galavanting on our behalf at the signing ceremony of the EU Constit... er, sorry, "Reform Treaty", when there was a meeting of the House of Commons "liaison committee" to attend.

And if the government can't control the security of people's personal information, then it can at least have a policy of being transparent when they get it wrong. And keep logs of the problems. And undertake investigations. You never know, people might just get sick of hearing about it all and stop bothering to care about their personal security anyway.

And then there is the distraction of targets. And of reports of performance against targets.

We are blinded by the detail.

But just for a laugh, I looked at the Autumn 2007 Performance Report of the Department for Business, Enterprise and Regulatory Reform, or "BERR". That's the department charged with promoting enterprise and cutting red tape, I'll have you know.

Footnote 6 on page 5 gives you an idea where the report is headed:

"Factors affecting performance are only discussed for targets from the current spending review [undertaken in 2004]. The performance on targets from previous spending reviews can no longer be influenced since the period covered by them has ended."

In other words, if they miss the targets, the slate gets wiped clean.

And here's what we got for our tax money spent on promoting enterprise and cutting red tape:

"Of the ten PSA targets from SR04 which BERR is responsible for delivering, five are assessed as on course to be delivered, two are assessed as showing slippage, two are split up and assessed in more detail by sub-target (with most of the sub-targets assessed as on course for each) and one further target is yet to be assessed."

5 out of ten.

But what of the targets "showing slippage"?

Pah! They're only concerned with fuel poverty in vulnerable households, reducing EU trade barriers to help developing countries and nuclear clean-up. "Greater choice and commitment in the workplace" hasn't even been assessed.

I'm sorry, did you say, "nuclear clean-up"?

Ah, yes... Target 9, page 7:

"reduce the civil nuclear liability by 10% by 2010, and establish a safe, innovative and dynamic market for nuclear cleanup by delivering annual 2% efficiency gains from 2006-07; and ensuring successful competitions have been completed for the management of at least 50% of UK nuclear sites by end 2008."

I see. The same government that tells us how to live our lives is also dumping our unencrypted personal data in Iowa and failing to clean up its own nuclear waste.

Somehow, I reckon life could get pretty warm around here during '08.

Better make this New Year's Eve party a big one. Enjoy.