Has a cull of senior parliamentary counsel bequeathed poorly drafted legislation?

The new Consumer Rights Act is said to be the biggest shake-up of consumer law in a generation.

It clarifies consumers’ rights to refunds for faulty goods and for digital content and services. The main elements of a contract must now be transparent and prominent instead of merely legible. After one failed repair, there is a right to a refund or price reduction.

All this I learn from the websites of two leading consumer associations — Which? and Citizens Advice. And I find from a briefing paper issued to business clients by a leading solicitors’ firm that traders who provide misleading information can now be sued for breach of contract, which is easier for consumers to prove than misrepresentation.

How much of this could I have discovered from the statute itself? You might think that a law intended to help consumers would be written in a way they could understand.

First impressions are encouraging. The act’s 101 sections are divided into parts and chapters. These have friendly headings such as ‘what goods contracts are covered?’ and ‘what statutory rights are there under a goods contract?’.

But I am thrown by the very first subsection of section 1. It tells me that part 1 of the act applies ‘where there is an agreement between a trader and a consumer… if the agreement is a contract’. A contract, it adds, can be written, oral or implied from the parties’ conduct. But what constitutes a contract? On this, the act is silent. I have to dredge my memory for what I was taught long ago about ‘offer’, ‘acceptance’ and ‘consideration’. Except in Scotland, of course, where consideration is not required so long as the parties intended to be bound.

The definitions in sections 2 and 3 of the 2015 act seem clear enough. But section 4 makes me wish I had paid more attention to those contract lectures. ‘Ownership of goods,’ it says, ‘means the general property in goods, not merely a special property.’ What’s the difference? And, more to the point, how would a consumer know whether a trader was an absolute owner?

Section 4 continues: ‘For the time when ownership of goods is transferred, see in particular the following provisions of the Sale of Goods Act 1979’. The first such provision is that ‘goods must be ascertained’. Eh? I look up the 1979 act, only to find that ‘ascertained’ is not defined. Nor was it defined in the 1893 act, which the 1979 act replaced. But the ever-helpful Westlaw UK database refers me to what an appeal judge thought it ‘probably’ meant in 1926.

What should we make of that instruction to ‘see in particular’? I am all in favour of chatty statutes but either we need to see the earlier legislation or we do not. And what is meant by ‘but see’, used elsewhere in the act? Is it the same as ‘subject to’ or just another signpost?

For help, I turned to Andrew Burrows, professor of the law of England at Oxford, a fellow of All Souls and formerly one of the law commissioners responsible for advising the government on contract law reform. Burrows was elected president of the Society of Legal Scholars last Thursday, the day the Consumer Rights Act came into force, and took the opportunity to describe the way part 1 of the act was drafted as ‘the antithesis of clarity’. It was difficult to follow because there were so many cross-references to other sections and to earlier legislation.

And it needlessly introduced new terminology for existing concepts, leading to doubts over whether the meaning had changed.

Burrows, who will lead 3,000 legal academics during the coming year, said that even lawyers and judges struggled to understand some new legislation these days. Statutes are drafted by highly specialist Whitehall lawyers. But, to cut costs, many of the most experienced drafters had  been encouraged to leave.

‘Since approximately 2011,’ Burrows reported, ‘it would appear that the number of senior parliamentary counsel has been halved from about 16 to eight. Even in an age of austerity, some may think it obvious that this is not a sensible way to proceed and will inevitably lead to inferior quality legislation.’

Could this be true? The Office of the Parliamentary Counsel (OPC) went through a ‘restructure’ in 2010/11, a Cabinet Office spokesperson told me. ‘As a result, and from continuing efforts since then to ensure that the office delivers value for money, the OPC’s headcount now is 25% lower than it was in 2010, and its cost to the taxpayer has been reduced from £12.5m to £8.6m a year.’

But, the spokesperson insisted, ‘the OPC is committed to the highest standards in drafting legislation and the quality remains high’.

Read the Consumer Rights Act 2015; and you be the judge.