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Put away the measuring tape – it’s time for greater codification

12 April 2013 Please leave a comment below

Codification 150x150 Put away the measuring tape – it’s time for greater codificationNils Jorgensen/Rex Features
By Matthew Seys-Llewellyn,

Ever since I was a law student, it has been an annual ritual of the newspapers to buy a copy of the Tolley Tax Handbook and measure how much fatter the tax laws have become. Red tape seems inevitable, regulation grows by half an inch or so each year and business bemoans this lack of simplicity. So why does no-one ask the same thing of statutes and case law? Couldn’t this all be simplified by codification?

In fact calls for greater codification of the law (with a view to stripping out the “useless bits”) have a long history. In 1867 a Royal Commission put some scale to the size of statutory law of the time: “in the quarto edition in ordinary use, known as Ruffhead’s, with its continuations, there are 45 volumes… The contents of these volumes form one mass, without any systematic arrangement, the acts being placed in merely chronological order, according to the date of the enactment”. A quarto is the largest standard size of book, apart from grimoires, and not the easiest thing to navigate without a search tool or knowing the name and year of the relevant Act.

Of course the law of England and Wales is a mixed system, relying on decisions of the common law, statutes and – inevitably – cases interpreting statutes.  Looking back on his efforts in 1886, Sir Mackenzie Chalmers, who had drafted the Bills of Exchange Act 1882, stated that his approach has been to summarise the extensive (but settled) historical decisions of banking and the law merchant and in that process managed to condense down “some 2,500 cases, and 17 statutory enactments” into an Act with 100 sections and two schedules.  Moreover he noted that the law of promissory notes, bills and cheques formed “a well isolated subject”, which gives us an idea of the scale of the effort simplifying the law at large might require!

Broadly, the position today is that there are a number of massive and complicated organising statutes that build away from decided cases to statutory rules. One thinks of the Offences against the Person Act 1861, the Law of Property Act 1925 and the Companies Act 2006 as three examples where a lawyer’s first recourse is the written text of Parliament. And by the same token massive organising statutes such as the Youth Justice and Criminal Evidence Act 1999 that ram together a number of areas of the law in a less than happy mixture.

Today, it is the role of Law Commission, a body established by yet another statute (the Law Commissions Act 1965, as amended) to “review all the law with which they are respectively concerned with a view to its systematic development and reform, including in particular the codification of such law, the elimination of anomalies, the repeal of obsolete and unnecessary enactments, the reduction of the number of separate enactments and generally the simplification and modernisation of the law” (section 3). These recommendations are then passed to Parliament to debate, and are often a fertile source of debate and argument from lawyers working in the field.

Despite this I feel confident in predicting that the physical size of legislation, in paper or petabytes, will continue to increase. What has changed is that like the parable of the blind men with the elephant, lawyers with only one or two specialisms will never see how big the whole of the beast has grown.

Now, if you’ll excuse me, I think I may need a measuring tape…

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