Bdaily Insider Behind-the-scenes blog from the team at Bdaily.

Good law/bad law - a cry for common sense

by Collyer Bristow

The Good law Initiative (GLI)— has come out of the vision of the Office of the Parliamentary Counsel (OPC). It would like the end users of the law to experience so called good law (wouldn’t we all). We therefore need law that is:-

  • Necessary
  • Clear
  • Coherent
  • Effective and accessible

OPC asked people in government, in parliament and beyond to think about this. I am a corporate lawyer who has been writing and lecturing on these issues for some time. As part of my involvement in this project I was asked

“to say something to a group from the Cabinet Office about the problem of volume and complexity of law (and resulting issues of lack of compliance and enforcement) from the perspective of real life users.”

Here are a few extracts from those discussions:-

“My basic mantra is as follows and it applies to just about every part of the legal system.

I believe we have:-

too much law;

too much bad/complex law;

laws which are unenforceable; and

laws which are unenforced.“

What often tends to be missing from these discussions, I think, is feedback from the 99 per cent of businesses- which are small and medium sized companies. These are companies employing up to 249 people. There are over 4 million of them. They make up about 48 per cent of private sector turnover and employ over 13 million people.“

A couple of examples from clients which go to the heart of issues raised by this initiative.

“The Auto Enrolment for pensions is a nightmare. How the Government can shift the emphasis of this traditionally state run function to the private sector is shocking. The cost to our tiny [about 90 employees] business will be £25,000 in pension contributions but the cost of implementation will be many times that . We have to opt them in to opt them out. I have a foreign workforce – they won’t even understand pensions so that’s another cost (interpreters).”

OR

“The law relating to eligibility for criminal records check is enormously and unnecessarily complex and inaccessible. There are three levels of criminal record check including Standard Disclosure. The relevant Order was amended just once in the years between 1975 and 2001. Since 2001 the English and Welsh version of the Order has been amended by thirteen different statutory instruments.”

This I think is a perfect example of one of the issues which arises in so many instances and is commented on by so many people. An inability by those who produce them to understand the effects of continuous amendments (whether necessary or not is not the point here) on the end users, taxation laws being the obvious example . A connected point is the real difficulty of end users ( most of whom have no legal training) accessing the relevant rules. A so called rolling process of trying to “ fix “ things, for whatever reason by introducing ever more rules, is never helpful.

What is the effect of “ bad law“? Here is one comment “with the added responsibility of ensuring, employment, health and safety and compliance law et al is adhered to, the twenty- something entrepreneur is looking the other way This leaves him and his company open to action from the government, disgruntled employees and the taxman as well as attack from bigger established organisations.”. This is what I call the ostrich approach” I can’t deal with all this stuff, so I will pretend it doesn’t exist”… that certainly brings the law into disrepute.

Often people don’t believe that there is a real reason (rather than a “something must be done reason”) behind the rules. As one client suggested

“..and dare I say it, my very strong suspicion is that the legislation has caused a large proportion of compliance work to become a box ticking task [ and here we only really need to mention as a group “ the banks and the regulators “ , to understand the disastrous effects when regulations are reduced to box-ticking ] with no real thought as to what they are trying to do; good old professionalism is a far more productive way to identify potential problems …..”

Which takes me finally to a question “what is the true reason for of all this law?” Many people would suggest it is how the politicians prove their “worth or value”; perhaps more thought and less rules might be a better option.

Micro–managing the laws relating to business will continue to put a massive financial burden on SMEs and their owners / managers. Laws relating to business should not assume everyone or even most people are “bad”. The bad guys will break the rules anyway and probably, get away with it! This was never intended to start as a cry for common sense in and throughout the legislative process … perhaps it should have been.

For more information contact - Nick.Gould@collyerbristow.com