Law in chaos

John Ozimek in the Register:

The common assumption is that “ignorance of the law is no excuse” – but if a recent case in the Court of Appeal is anything to go by, even highly paid officers of the court are finding it increasingly difficult to know what the law says on any given matter.

Late last year, an appeal in R. v. Chambers [2008] EWCA Crim 2467 was halted at the 11th hour when it turned out that the regulation which the defendant was appealing and under which he had previously been found guilty had in fact been superseded by new law… some seven years previously.

This only came to light when a draft judgment on the case was passed to a lawyer at Revenue and Customs, who spotted the error and instantly alerted the court. …

Echoing recent comments by Lord Phillips, head honcho in our legal system, Lord Justice Toulson blamed this chaos on four factors – first, that “the majority of legislation passed today is secondary legislation”. That is, it is not passed directly by parliament, but is the result of Ministers laying regulations before parliament (statutory instruments).

Then, “the volume of legislation has increased very greatly over the last 40 years”. In 2005 alone, there were “2868 pages of new Public General Acts and approximately 13,000 pages of new Statutory Instruments” – to which should be added another 5,000 pages of European Directives and Regulations, plus the outpourings of our new devolved assemblies.

Thirdly: “On many subjects the legislation cannot be found in a single place, but in a patchwork of primary and secondary legislation.” And finally, “there is no comprehensive statute law database with hyperlinks which would enable an intelligent person, by using a search engine, to find out all the legislation on a particular topic”. …

Incidentally there was a letter to the Telegraph in November 08 that read,

SIR – I am a young barrister based in Nottingham. This week, I received my brand new 2009 edition of Archbold, the leading criminal law text, used by nearly all advocates and judges in English and Welsh court rooms.
Having taken my new barrister’s bible out of its box, I cast an eye over the preface to this year’s edition: “It has been a recurring theme of the preface to this work that there is far too much criminal legislation. The willingness of the Labour Government to continue its practice of legislating by trial and error has shown no signs of abating even in its eleventh year in office… The state of the criminal statute book is a disgrace. The Criminal Justice and Immigration Act 2008 is the usual hotchpotch of measures, with no theme, with much of the detail tucked away from close scrutiny in the schedules, and consisting in large part of textual amendment to earlier legislation. Much of the amendment is by way of undoing this Government’s earlier legislation.” 

Coincidentally in the same paper there was this letter:

Sir – In a letter to Lord Laming, asking him to review child protection measures following the death of Baby P, the Secretary of State for Children, Schools and Families, Ed Balls, wrote obscurely: “What are the key barriers, including in the legal process, that may impede efficient and effective work with children and families and that may be preventing good safeguarding practice from becoming standard practice everywhere?”
I also found this heading on a flowchart produced by Mr Balls’s department: “LSCB [Local Safeguarding Children Boards] objectives pursued through LSCB functions help produce outputs that contribute to overall outcomes.”
In contrast to this turgid jargon, the clear prose of Lord Laming’s report into the death in 2000 of Victoria Climbié stated: “The problem is less about the ability of staff to read and understand guidelines, and more about the huge and dense nature of the material provided for them. The test is simply one of ensuring the material actually helps staff do their job.”
I would urge anyone interested to study the torrent of government guidelines since Victoria’s tragic death. If the material was “huge and dense” then, it is immeasurably more so now. 

If the experts cannot understand it, what hope for the layman?

(this by the way infringes the rule of law, in the sense that the law shouldn’t change too frequently and it should be understandable by a reasonable person.)

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