Making good law gets tougher all the time

Getting laws written years ago to work in today’s changed world is a challenge

We can all point to a law that was probably well-intentioned but doesn’t work in practice. Whether it’s one of the bizarre, outdated prohibitions still on the statute books despite the passage of time, or outlawing something that’s already illegal, they make for great apocryphal stories about the supposed ivory towers of lawmaking and law testing that go on in our parliaments and courts without any reference to the real world we all live in.

But beyond those cautionary tales lies a far more complex challenge – how to make good law. That is, law that works in practice, in real life, for real people.

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It’s a really challenging task. Write too much detail into law and you might make it inflexible, unable to respond to differing or changing circumstances. Too little detail can lead to confusion. If those of us subject to a law or trying to enforce it don’t understand what it means, then how will it work?

It's not as simple as it once was for all documents pertinent to a case to be gathered in one place, says Vicky CrichtonIt's not as simple as it once was for all documents pertinent to a case to be gathered in one place, says Vicky Crichton
It's not as simple as it once was for all documents pertinent to a case to be gathered in one place, says Vicky Crichton

Think about what the word “documents” might mean in a law passed almost 20 years ago. The Legal Profession and Legal Aid (Scotland) Act 2007 defines the documents relevant to a complaint investigation as “all books, accounts, deeds, securities, papers and other documents in the possession or control of the practitioner”. So far, so good. But what if much of that lawyer’s communications with her client are now transacted by email, or increasingly commonly, WhatsApp? Does the complaints body with the power to request those relevant “documents” have the right to see those too?

Exactly that question has been considered as part of revising legislation currently being debated in parliament, and, to make sure, amendments are proposed which say that for the purpose of those powers “references to other documents include references to anything in which information is recorded in any form”.

That clarification is helpful but can only be achieved by amending the legislation as technology use changes.

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An alternative approach would be to avoid specifying exactly what type of documents are included, but that can open up other questions, and where parliament’s intentions are vague or unclear, the courts are often asked to decide what those all-important words are intended to mean.

On Christmas Eve, the Court of Session published its opinion on the appeal of a decision of the Scottish Legal Complaints Commission which rested on the definition of a “complaint” in that same Act. That might seem obvious, but in a complex and detailed piece of legislation – especially one which was amended significantly throughout its parliamentary passage – differing uses of the same term can create uncertainty about what is meant at any given point. Someone has to try to interpret what parliament meant. Firstly, the body holding the power, usually drawing on costly and often conflicting legal advice which might still not deliver a definitive opinion. And ultimately – if asked to do so – the court.

No-one wants the meaning of key terms to be debated 18 years after legislation passed. But anticipating the way abstract ideas need to be translated into operational delivery, and the way complex, contrary and emotional humans will interact with them is a really tough job. As parliament grapples with reform to our founding legislation and, separately, considers the merits of “framework” versus detailed legislation, it’s the real world application that really matters.

Vicky Crichton is Director of Public Policy, Scottish Legal Complaints Commission

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