Legislation passed by Parliament, known as statute law, can be very complicated. Many statutes are incomprehensible and inaccessible to those untrained in how to read and interpret legislation. The website www.legislation.gov.uk has already taken steps in order to improve public access to the law. The website is a national archive of legal and public records. The government often provides explanatory notes in order to concisely explain the measures that are covered by the legislation although these tend to simply repeat the same complex terminology found in the act itself.
In 2002, the government, recognising the importance of educating students about the law and politics, introduced Citizenship to the National Curriculum. Citizenship is aimed at encouraging students to become responsible citizens who make a positive contribution to society. The syllabus focuses on democracy, parliament, government, the justice system, human rights and the UK’s relations with the wider world. While useful, the syllabus inevitably falls short of equipping students to understand the law and although the subject is currently compulsory for 11-16 year olds, this does not help those who missed its introduction.
Richard Heaton, the permanent secretary at the Cabinet Office, released a report released last week entitled “When Laws Become Too Complex”, which called for legislation to be made easier to understand so that those that find themselves governed by regulations in their working or daily lives may access these with ease:
“We should regard the current degree of difficulty with law as neither inevitable nor acceptable…Most European countries have set up processes to simplify national legislation and established departments dedicated entirely to better regulation and reform of the law… users would like legislation that is simple, accessible, easy to comply with and not unnecessarily burdensome, at present those are not the features of modern legislation”
The report, recognises the improvements that the digital age has made in enabling those who seek legislation to find it, but that once found, it’s incomprehensibility renders it’s accessibility pointless. The language used in legislation has been criticised by the report as “intricate and intimidating”. Heaton, in his position, is also responsible for improving the drafting of bills in order to ensure they are clear and concise:
“The volume of legislation, its piecemeal structure, its level of detail and frequent amendments, and the interaction with common law and European law, mean that even professional users can find law complex, hard to understand and difficult to comply with. Excessive complexity hinders economic activity, creating burdens for individuals, businesses and communities. It obstructs good government. It undermines the rule of law.”
The rule of law, in this instance, is the principle that law must be enforced effectively and conform with certain unwritten, universal principles of fairness, morality, and justice that transcend human legal systems. Coupling this with the principle, Ignorantia juris non excusat – that ignorance of the law is no excuse (the latin phrasing only serves to emphasise the entrenched complexity in our legal system), means that everyone is subject to laws even if they are unaware of the provisions.
Kristztina Morvai, now an MEP for Hungary that works closely with the UN Women’s Rights committee as an advocate for Palestinian women’s rights, wrote a paper on the accessibility to justice for human right violations under the European Court of Human Rights (ECHR). This landmark article brought the issue of public legal understanding of the ECHR process to light. Morvai describes claims made by impoverished people, victims of human rights violations that were incapable due to a lack of education to grasp the complex ‘red tape’ and bureaucracy of filing such a claim to the court. Morvai describes her experience of dealing with a particular claim by a woman whose land had been unlawfully annexed:
“My superior instructed me to send a P8 form letter, stating that ‘no public authority can be held responsible for the alleged violation’. Fearing that I would be exposed as ignorant of the Law, I nonetheless risked the question ‘Is this not state action?’ My Superior was not looking as European as he did five minutes earlier. He was angry. ‘We do not need much theory here, Kristztina. We have to do the Law and we have enough work with that.’ I sent the P8 form letter to the applicant. She never came back. A pity she missed her classes on state action at Harvard Law School and therefore did not know how to argue against the P8.”
Recognition that not everyone can afford legal advice is important in a democratic society and with the cuts to legal aid under the current government, the call for a more accessible legal system could not be coming at a more important time. Though, the lack of legal aid can never be fully rectified by the improvement of legal clarity for the general public, it does take steps towards at least providing some help to those who need legal assistance – as long as they are in fact able to help themselves.
Legislation is prolific and some acts of parliament remain unrepealed from as far back as 1267 (notably, the language of these older acts is so outdated that it is almost unfathomable to most). Over the past ten years, the government passed on average around 38 acts per year and since 1983 more than 4,000 criminal offences were created. Secondary legislation, also known as delegated legislation, has also doubled since the 1980s. In a system where ignorance of a crime or law is unaccepted as a defence, access to law and the ability to comprehend its meaning is imperative.
Sometimes law needs to be intricate, to leave law undefined or vague creates problems by increasing the level of interpretation that has to be undertaken by judges by increasing court time and cost as well as poorly informing the public. That said, the problem of overly-complex legislation has confused us for centuries, as Edward VI complains back in the 16th Century:
“I wish that the superfluous and tedious statutes were brought into one sum together, and made more plain and short.”
Yet, the recent push for increased comprehensibility, coupled with the easy access provided by the internet can perhaps make legal eagles of us all.
For further information about this subject, please see:
http://www.guardian.co.uk/law/2013/apr/16/parliamentary-legislation-too-complex-report
https://www.gov.uk/government/publications/when-laws-become-too-complex/when-laws-become-too-complex
If you are interested in issues like this then you might be interested in our Law Summer School (Part Two) running on the 31st July – 4th August