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Wednesday, February 1, 2017

Time to claim the law back from the legal priesthood

The way in which the people’s laws are framed makes them a plaything of the legal classes.
THE VERY last Act passed by the Oireachtas, which is available on the Irish Statute website, is the Petroleum (Exploration and Extraction) Safety Act 2010.
Section 3 of this Act states (please bear with me, for there is a point to this excruciation):
“The Act of 1999 is amended (a) in section 2(1) by inserting the following definition after the definition of “natural gas undertaking”: “ ‘petroleum undertaking’ has the meaning given to it by section 13A(1);” (b) in section 6 by inserting the following after subsection (2): “(3) Proceedings for an offence under Part IIA of this Act committed in any part of – (a) the licensed area (within the meaning of section 13A) to which subparagraph (i) or (ii), or both, of paragraph (a) of the definition of ‘licensed area’ relates, or( b) a designated area, may be taken, and the offence may for all incidental purposes be treated, as having been committed in any place in the State.”, (c) by inserting the following section after section 9K: “Functions of Commission under Part IIA relating to petroleum safety. 9L. – In addition to the functions conferred on it by section 9, the Commission has the functions specified in Part IIA relating to petroleum safety.”, (d) by inserting the following Part after Part II: (and more of the same)”.
Could any normal person understand this? Even someone afflicted with a qualification in law? It is not intended to be intelligible to anybody but legal nerds, who have a vested interest in such intelligibility, for it provides them with an income and a status.
Isn’t there something odd that the laws, by which we govern ourselves, are largely incomprehensible to us, the people, in whose name the laws are enacted? Actually it is even worse than that, for many (most?) of the laws are incomprehensible to the elected representatives who enact them and to whom we subcontract our self-government. Worse still, we have a legal priesthood who divine what it is we have meant by the Acts passed in our name, and what it is our grandfathers and grandmothers meant by the Constitution, enacted 73 years ago. And this priesthood expresses itself in language and at such length that the majority of the self-governing people could not possibly understand.
We supposedly live in a democratic society, in which the people are the sovereign power. Not the government, not the President, not any monarch, nor any priest or cardinal, nor any of the legal priesthood dressed up in Gilbert and Sullivan costumes, or even the ones not so dressed up (the latter are called solicitors and wear dark suits and waistcoats, often with a silk handkerchief flopping out of their top pocket, as a status accessory).
Ten years ago the Law Reform Commission published Report on Statutory Drafting and Interpretation: Plain Language and the Law. It recommended the use of plain language in Acts of the Oireachtas (“sentences should be as close to common English usage as possible”), no sentences being longer than 23 words, and avoidance of Latin or French phrases and words and of other obscure formulations.
They might also have insisted that when a previous Act is being amended, the wording of the previous section is published followed the wording of the proposed amendment, so that any normal person (in this instance “normal person” includes judges and lawyers) can understand clearly what is being done.
Which brings us to judgments of the High Court, and particularly of the Supreme Court. In literary terms, these judgments have got worse since the invention and use of dictation devices. It is obvious that many judgments are dictated, and little effort is made subsequently to edit and make sense of the resultant transcripts.
There was a judgment of the Supreme Court issued a few months ago in a case on whether Portmarnock golf club could be deprived of their drinking licence because they excluded women from membership of the club. One of the judgments in this case, that of Adrian Hardiman, ran to 20,625 words. Had he been required to read the judgment, as used to be the practice on the Supreme Court, it would have taken him almost two hours (at 180 words a minute). It was replete with lengthy extracts from previous judgments of the court, in one instance a lengthy passage repeated verbatim. There were protracted diversions into other areas to accommodate swipes at various targets, including a Canadian judge.
Why is it then that we go along with the codology of the legal mumbo-jumbo in which our laws are enacted and in which our legal priesthood expresses itself at such enormous length? If the laws are ours and the legal priesthood constitutes the interpreters of the law and the Constitution, how is it that it is OK for the laws and the interpretations of them to turn out to be so inaccessible to the sovereign people?
At the heart of this, of course, is a contempt for the populace – the sovereign power – although the formal language defers rhetorically every now and again to the ideal of democracy. The contempt is founded on the presumption that the law actually is the plaything of lawyers.

We should not have it.

Vincent Browne