The calamity of complex laws

During my 26 years at the bar and 24 on the bench, changes were naturally to be to be expected. One might have hoped these would have been for the better, but in one vital respect there has been failure. A nation based on the rule of law and access to justice can legitimately expect that its laws might become easier to understand, and its remedies easier to obtain. The reverse has been the case.

In many areas of importance to ordinary people, legislation is nearly impossible to understand, and often difficult for lawyers. Simply getting to trial now requires negotiation of a complex reticulation of procedural difficulties. Costs are greatly increased, legal aid greatly reduced and rights are often without effective remedy.

In Lonsdale v Howard [2007] 1WLR 2055 HL, I tried a case involving a shoe salesman’s right to compensation on termination of his contract. How was this to be calculated under the Commercial Agents regulations? 

The problem went from the Oxford County court to the House of Lords (happily with the result I first thought of). So poorly drafted were the regulations that it took nine judges to decide that £5,000 was an appropriate figure.

The Data Protection Act has been another cause of great frustration, described by the then Lord Chief Justice in 2000 as “virtually impenetrable”. Housing and consumer credit law are often almost incomprehensible. 

This calamity of complexity has spread to crime. Lord Phillips in R v The Governor of HMP Drake Hall [2010] 1WLR 1743 described the interpretation of a caliginous sentencing provision as “hell”. For many years, circuit judges were wittily lectured to by a Cambridge academic about the possible meanings of conflicting provisions of the criminal law, lest the bench could not unravel them unaided.

We laughed, but it was absurd that it should have been necessary.

A pathological objection to simplicity has developed. Take civil procedure: Lord Woolf was asked how the Supreme Court rules might be reformed for simplicity, speed and economy. He said they should be made “shorter and more accessible”.

In his 1996 report, he wrote that reducing the amount of material in them was “obviously desirable” and “it was important to reduce complexity and make the system more amenable to actual users and more acceptable to ordinary citizens”.

We all looked forward to a world where litigation would indeed be simple, cheap and quick, but as the new rules began to emerge it was evident they were not shorter or simpler at all – they were precisely the opposite.

The final edition of the old (1997) White Book ran to 3,993 pages and, by April 2018 (when I gave up looking) there were 6,488 pages. Lord Woolf had identified practice directions as a source of unsatisfactory complexity, yet those drafting the new Civil Procedure Rules attached prolix directions to every rule.

So clear were the new ‘simplified’ rules that over 150 pages of guidance were produced, so that they might be understood.

In 2003, the Court of Appeal noted the emergence of this “cumbrous and confusing three tier hierarchy of rules and guidance”, but nothing was done to correct it. The Judicial College, in a 2018 paper, said litigants in person were effectively now operating in a “foreign language”, but still nothing has been done to rectify this flagrant and inexplicable betrayal of the mandate to simplify.

This ‘reform’ of civil procedure has produced predictably disastrous results. For 18 years as a district court judge I watched (and helped) people – often dealing with threats to their homes, children or livelihoods – struggle with the complexities of the CPR.

Nobody expects people to treat their own illness, and legal problems are often far more serious and complex than medical ones. Yet governments appear content for people to try to use a legal system in which they cannot understand the law, manage the procedure or afford legal assistance. It was not like this when I was called to the bar.

HH Charles Harris QC is a retired county court judge and author of Trial & Error: A judge's experiences, in the law and out of it (Mereo Books 2019)