Planning Law and the Descent into Complexity

One of the main themes of this blog in recent months is that a precondition of reform is simplification of Planning Law. Hence my proposed draft single planning act.

The Deputy Senior Presiding Judge Sir Charles Haddon Cave has made a speech on this issue.

“English Law and Decent into Complexity”

The Rule of Law requires that the law is simple, clear and accessible. Yet English law has in become increasingly more complex, unclear and inaccessible. As modern life becomes more complex and challenging, we should pause and reflect whether this increasingly complexity is the right direction and what it means for fairness and access to justice. 

the law seems to have grown like ‘Topsy’ : the algorithms and manifestations of the law have multiplied exponentially and become ever more complex and voluminous. The fact is, we labour under the heavy yoke of a lot of law and a lot of dense, complex law at that. Does the law really have to become more complex as the world becomes more complex? Or should we…move in the opposite direction towards simplicity? I venture to suggest that the more complex modern life becomes, the more important it is constantly to strive to simplify the law…

The American political scientist, Professor Steven Teles, coined the term “kludgeocracy” to describe the
complexity and over-regulation of modern American government. A “kludge” is defined by the Oxford English Dictionary as “an ill-assorted collection of parts assembled to fulfil a particular purpose”…

There is also, an admirable culture of counsel of perfection which had pervaded the
development of English law – mostly to its great benefit, namely, a desire to devise laws,
rules and exceptions that cover all potential scenarios and achieve uber-consistency and
predictability. But this can, sometimes, be self-defeating and lead in practice to
difficulty, obfuscation and uncertainty. As Arthur Conan Doyle said, “A counsel of
perfection is easy at a study table”21. As Voltaire said, “Perfect is the enemy of the
good”. Sometimes, the perfect can simply mean lawyers endlessly arguing amongst
themselves in their own Tower of Babel. Sometimes, the pragmatic and workmanlike is
better than the legally perfect, as well as of more use to society in the long run. Anyway,
enough of all that…

.Complex legislation comes in principally in two forms. The first is outdated legislation drafted in another era which is badly in need of reform for the modern age, … The second is legislation which is
born complex and then repeatedly amended to make it even more unintelligible….

Sometimes, to be fair to us judges, we are simply having to deal with the myriad of points
and citation of authorities thrown up by counsel. Without raising a cut-throat defence,
can I echo the words of Sir Stephen Irwin: “The excessively long and complex skeleton
argument is a curse”.65 Sometimes hunting in a skeleton for the real point in the case
hidden amongst many is like “Where’s Wally?”.