In my introduction to this series I gave you the main sources of our legal system
In an ideal world, those three links would be enough to fully inform you about the law. Which in a way they do. But of course, in reality, they don’t.
Unless you have an understanding of how our legal system works, you will not have the skills to interpret that information properly and those links will just confuse you. Even trained lawyers will struggle with some of the law and legal concepts found there.
Our legal system is incredibly complex and it is impossible for any one person to have a complete knowledge.
Why is the law so complex?
Well there are two main reasons:
1: Our law has been developing over many years
Its roots lie far back in the mists of time. When I started my History of Law blog I began with William 1, the Conqueror, but he just built on the legal system that he already found here.
At the time of writing the blog only goes up to the end of the reign of Henry II (at the moment) but even in that relatively short period of time, we are able to see how the law changes over time and adapts itself as our society changes.
And that is the other reason
2: Our society is increasingly complex.
If we lived in a simple society a simple legal system would suffice. But we don’t. We live in a very complex society indeed.
Our law has to cover and regulate many things:
- Land and property – including sale and purchase, leases (long and short), rights over land, and different types of mortgage
- Contracts and business – including sale of goods, shipping law, agency law, and the rules around breach of contract
- Companies – the complex rules that regulate how an ‘artificial person’ can be created, operate and eventually close down
- Intellectual property – the rules that protect people’s rights in ideas, and those things which are not physical possessions
- Health and safety – all that annoying ‘red tape’ which protects people from harm and – which we have seen from the Grenfell tragedy – is so important
And so on
With the best will in the world, any legal system created to regulate such a complex world must be complex itself.
But is it unnecessarily complex?
In my life as a lawyer, I have met some very clever people. And my experience is that the very cleverest are often able to express things very simply.
At the heart of every complex problem there lies a core issue which can, if you have sufficient skill, be set out simply and clearly.
It is the job of a lawyer to do this when advising a client (although many lawyers sadly fall short). It is also, I would suggest, the job of the people who draft our legislation.
If we had clearer legislation – would this not make life simpler and dealing with the law less expensive?
When laws cannot be understood
A classic example of unclear legislation is that regarding tenancy deposits. It has always been hard to follow. There is a lot of cross referencing and the language is unclear.
It is largely because of this, that there has been so much litigation over the interpretation of the wording, plus the law has been amended twice after Judges interpreted the words in a way that had not been intended by the government.
As a result, the law on deposits is incredibly opaque – difficult enough for a lawyer who knows the history of it but almost impossible for the ordinary landlord and tenant.
Who are after all the people actually using the system
Can anything be done about it?
Many of our problems with the law come from unclear drafting. .However, it does not have to be like this.
Legal contracts have also over the years been very difficult especially for consumers to read and understand. However, we now have the Unfair Terms rules (now part of the Consumer Rights Act 2015) and the campaign for plain English.
It is possible to draft a legal document in a way that can be understood. Many legal documents are now written in ‘plain English’ and it makes a terrific difference. I have done this with the Landlord Law tenancy agreements and this is one reason for their popularity.
We should do something similar with our legislation – in particular, legislation aimed at consumers. After all, if something can’t be understood, it can’t be used. Not without expensive legal help.
Brexit to the rescue?
Re-drafting all our laws would be an impossible task. However many laws are going to be scrutinised anyway as a result of Brexit and the repeal legislation. It would be nice if some effort could be made to put them into plain English. And to do this with all consumer related legislation moving forward.
The Law Commission could be used to help with this exercise. It would long term, be money well spent.
However even if we were to magically transform all our laws into Plain English, we would still need lawyers to help us use the system. In the next part, I will be looking at lawyers fees.
Ben Reeve-Lewis says
September 13, 2017 at 10:15 AMI accept all you say above Tessa but the complexity of housing law often seems to create more problems than it solves. Landlords and tenants often have only scant knowledge of laws and regulation but are bound by them when things go even a little bit wrong and for that reason I think housing law could certainly do with some streamlining.
Back in 1999 Lord Wolfe completely reformed the court procedures to allow greater access to justice. He said:-
“Every citizen and business in England and Wales now has the ability to approach our legal system and ask for justice without always needing expert knowledge”.
But then he added…..
“Procedural reform can have only a limited impact on housing law . the main source of difficulty is the complexity of the substantive law itself. . . . The Department of the Environment should look at this as a matter of urgency. The Law Commission should be invited to carry out a review of housing law with a view to consolidating the various statutory and other provisions in a clear and straightforward form.”
As you know it didnt happen and since 1999 things have gotten even more complex