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Time to Clear the Forest


[published in The Times Law Section 25th July 2000]
 

“Ignorance of the law excuses no man.”  John Selden’s seventeenth century aphorism that every citizen was deemed to know the law always was a fiction.  Now it is a fantasy of Wagnerian proportions.

 

The quantity and complexity of modern legislation and the number of reported cases mean that even lawyers know only a small part of the law.  Last year Parliament passed 35 Public Acts comprising 1,461 sections and 173 schedules. It approved 3,491 statutory instruments.   It was a relatively light year.  In 1996 the comparable figures were 62 Public Acts comprising 2,752 sections and 235 schedules.  The 1998 Current Law Yearbook, which summarises court decisions which may form precedents, noted approximately 3,750 cases reported over that twelve month period.  The response of many solicitors and barristers has been to specialise and to turn away work in areas in which they do not consider themselves experts.  That is not something that ordinary citizens can do.  Often they cannot choose which areas of law affect their lives.


At the same time, changes in the provision of legal aid and the increasing cost of instructing solicitors privately mean that many people do not have access to competent legal help. Professor John Baldwin has said that "large chunks of the business of the county courts are now being disposed of without the participation of lawyers" (Monitoring the Rise of the Small Claims Limit, LCD, December 1997, page 5).  In many district judges' lists, the litigant in person is the norm not the exception.  Professor Baldwin found that over two-thirds of litigants in small claims were unrepresented and that over one-third of litigants in open court trials with a value of less than £3,000 appeared without lawyers. 


Housing law is one example – an important one which affects the daily lives of all those who let or rent residential accommodation. It is particularly complicated. For example, there are at least eight different types of residential tenancy.  It is difficult for lawyers who do not specialise in the field to understand, and probably incomprehensible to landlords and tenants without legal training. It has developed piece meal over the centuries since feudal times - an amalgam of common law and statute.


The Encyclopedia of Housing Law contains the statutes, regulations and government circulars which deal with security of tenure, repairing obligations and homelessness. Its five volumes take up twenty-two inches on the bookshelf and weigh almost thirty pounds.  The four volumes of Woodfall on Landlord and Tenant take up over eighteen inches.  The Housing Act 1996 which, in a piecemeal fashion, tinkered with most areas of housing law, comprises 233 sections and nineteen schedules.  Most, but not all, of its provisions have been brought into force by eleven separate commencement orders.  Since the Act received the Royal Assent, Parliament has approved at least thirty-five statutory instruments which have added to and, in theory, clarified its provisions.   The 2000 edition of Civil Procedure (the “White Book” or lawyers’ Bible when it comes to litigation procedure) contains a housing law section with sixteen other major statutes, including the Rent Act 1977 (156 sections and 25 schedules), the Housing Act 1985 (625 sections and 24 schedules) and the Housing Act 1988 (141 sections and 18 schedules).


The number of reported cases is huge.  Many of them are old, decided against the background of a very different society. More than half of the cases referred to in the text of Hill and Redman’s Law of Landlord and Tenant date from the nineteenth century or earlier.  Centuries of case law have added to the complexity and uncertainty of the law, rather than reducing it. 


The law on homelessness (whether local housing authorities are legally obliged to house homeless people) ought to be simple.  Homeless single parents who turn up on the door-steps of housing departments on Friday nights ought to know whether they will be provided with accommodation without first having to consult lawyers.  Yet the table of cases in Andrew Arden and Caroline Hunter's excellent book Homelessness and Allocations lists over 370 cases decided by the higher courts which are relevant to what are now the 59 sections of Parts VI and VII of the 1996 Act.


The law reporters have been just as prolific in other areas of housing law.  The case law is occasionally found in the mainstream law reports, but more frequently in specialist law reports such as the Estates Gazette, the Housing Law Reports, the Property and Compensation Reports and Butterworth's Local Government Reports.  Few county court libraries or solicitors’ offices have these reports.


The problem is not a shortage of answers to the questions that landlords, tenants and homeless people pose.  It is rather that there are too many answers, too many learned articles, too many text books, too many reported cases, insufficient time to read them and, dare one admit it, too few brain cells to retain what has been read.  It is the equivalent of expecting a football commentator to be able to name and describe not just every footballer who has played for each club in the four main football divisions this season, but also in each of the seasons since the Second World War.


Quantity of law is just one part of the problem.  Complexity is another.  It is not simply the length of Acts of Parliament or the number of reported cases – although both these add to complexity.  A major problem is the language used in drafting Acts of Parliament. Professor Phillip Kenny has described the Landlord and Tenant Act 1987 (which, among other things deals with the right of lessees to buy their freeholds) as “a shockingly badly drafted piece of legislation” and “a front-runner in any possible competition for ill-conceived legislation”.  It is though fairly typical of the Acts dealing with housing law passed over the last thirty years.


These problems are well exemplified by the difficulties faced by individual landlords in bringing proceedings under the accelerated possession procedure. This simple procedure was introduced to enable landlords of assured shorthold tenants to obtain possession orders without court hearings.  The procedure merely requires landlords to fill out boxes in simple printed claim forms and to file them at court.  However approximately one third of landlords who bring such claims fail to obtain possession orders under the accelerated procedure.  Their cases have to be treated as ordinary possession claims and listed for hearing, in the main because of their failure to understand and comply with the technicalities of the substantive law.


The purpose of legislation is to regulate the lives of ordinary citizens.  Yet Acts of Parliament are drafted by lawyers, for lawyers.  It is generally accepted now that it is necessary to have lawyers to interpret the law – to translate it from legal language into English, to explain the labyrinthine complexities of the relationship between section 2(1)(a) and paragraph 9(1) of Part 1 of Schedule 1.  The resulting waste (in court time, legal aid expenditure and costs paid by landlords and tenants to their own lawyers and on a party and party basis) is colossal.  In the year 1998-99, despite decreasing eligibility, 14,876 legal aid certificates were issued in landlord and tenant cases, a figure topped only by the number of personal injury and matrimonial certificates.  During the same period 119,839 solicitors’ bills were paid by the Legal Aid Board for legal advice and assistance (now Legal Help) on landlord and tenant and housing problems  (Legal Aid Board Annual Report 1998-99).   The unnecessary complexity of the law is a cause of worry and uncertainty to those directly affected.  There is no doubt that a legal system is failing if it cannot provide definitive answers to simple questions and if routine cases require lengthy legal submissions. 


Housing law has become an impenetrable forest.  The once mighty oaks of the common law are in a sorry state.  Their trunks are old and gnarled.  Branches are missing - some blown away by the gales of change, others crudely lopped-off by the parliamentary draftsmen who have replaced them with dark, fast growing conifers, and, horror of horrors, even occasionally with cupressi leylandii.  Beneath them are the tangled brambles of case law.  There are few paths through the forest, known only to the most skilful lawyers.  Some who enter the forest escape with scratches and torn clothes.  Many become hopelessly lost.


The time has come for root and branch reform of housing law. Lord Woolf, the Lord Chief Justice, who was responsible for the clearly drafted Civil Procedure Rules which have simplified civil court procedure, said

“. . . procedural reform can have only a limited impact on [housing law] . . . reform of the substantive law on housing could do more than anything to reduce cost and delay . . .  the main source of difficulty is the complexity of the substantive law itself. . . . The Department of the Environment should look at this as a matter of urgency.  The Law Commission should be invited to carry out a review of housing law with a view to consolidating the various statutory and other provisions in a clear and straightforward form." (Access to Justice, Final Report, pages 197-9)


It is too late simply to cut out the dead wood.   Previous attempts at consolidation of statutes (most notably the Rent Act 1977 and the Housing Act 1985) have retained and indeed added to all the existing complexity.  The forest should be cleared and replanted with healthy seedlings from the old trees.  All current housing statutes should be repealed and the common law rules of landlord and tenant swept away and replaced by a simple self-contained code setting out the law of renting residential premises. It should be drafted in simple, plain English so that any landlord or tenant would be able to ascertain after a few minutes reading whether or not the occupant would be entitled to stay in the premises. The same kind of “modern” drafting language used in the Civil Procedure Rules should be employed.  Wherever possible unnecessary technicalities should be eliminated. As a new self-contained statutory code, using new terminology, it should state that none of the existing housing case law should be used in construing its meaning. The savings in judicial time and legal costs would be colossal.




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