John Stirling: Forget the lies and damned lies

Not all of that increase  is new law. There have  been some repeals and consolidations, but the pattern is of increasing regulation.

Add to this increase in UK legislation material from Brussels, every written opinion from the UK courts, the European Court of Justice and the Court of Human Rights,  and the burden of establishing what is current law is getting tougher.

A case once reached the House of Lords before anyone noticed that  the section it turned on had been repealed.  I lose sleep about missing something relevant.

The increasing flow of material creates problems  at two distinct levels.

The first is trivial in comparison to the second. The hours spent looking for the law before the process of interpretation can begin are both unsatisfying and costly.

The volume of material makes consulting a specialist almost inevitable.

Few transactions of any size involve only one lawyer on both sides these days.

While I am grateful for employment, I wonder whether society benefits from this greater spend on advice.

The second is philosophical and it strikes at the validity  of our structures.

We are presumed to know the law.

That premise is no longer valid when even the experts  are struggling to keep up.

Once found, the material is often so dense as to be unknowable.

Last week I had to look at four interlocking EC regulations, two Scottish Parliamentary instruments and commentaries on them by the European Commission and the Scottish ministers.

Still uncertain of the answer, I looked at cases on similarly worded provisions in different pieces of legislation.

The concepts involved  were not particularly arcane but the language used was so lacking in normative content that legal certainty, one of  the foundations of any society, was absent.

I began to have sympathy  for former US Defense Secretary Donald Rumsfeld’s struggle with the known unknowns and the unknown unknowns.

Of course, the courts exist  to generate certainty, at least  on a case by case basis. But for those with limited means, uncertainty generates risk or inaction. That’s bad for society.

We have an adversarial system. It is for the parties to bring out the facts and the law that they consider relevant.

Competence and jurisdiction are always for the judge to police but he or she is forced to consider only the material the parties choose to present. Bad decisions will follow from incomplete law and facts.

Now that the courts themselves can be  subject to review and, in some circumstances, liable in damages if a human right protected by the Human Rights Act is infringed, the adversarial system may no longer be safe enough.

If I’m right that lawyers  and judges are drowning in  the legislative deluge  the courts can’t rest assured  they are making the most “lawful” decision.

That is because it can’t be found, because it’s often not comprehensible and for the reason that the intrusion of human rights is often so subtle it’s difficult for agents, focused on their own client’s interest, to see the points and point them out to the court.

If the information deluge is to continue we may have to move towards an investigative judiciary or the routine appointment of counsel to represent the court’s interest where human rights issues are seen to intrude.

Or, of course, we could pass less legislation and work on doing good with the tools already in hand.

l Statistics are derived from www.legislation.gov.uk/ and www.scottish.parliament.uk/ John Stirling is a solicitor advocate and partner specialising in litigation  and dispute resolution with Gillespie Macandrew

John Stirling: Forget the lies and damned lies – the stats are the concern