Rapid process for interpretation of new laws

Proposed new mechanism for clarifying unclear regulation and legislation.

The ARC’s campaign is to persuade government to adopt a new procedure enabling interested parties to seek a rapid judicial interpretation of the meaning of laws.

For the last decade it has become common practice for governments to issue legislation and then in some cases issue guidance to clarify the intention. However, the legislation itself is not always clear and guidance can unwittingly misinterpret it. In some cases the legislation may not reflect the intention behind it, which perhaps is better reflected in the guidance.

There can be no better example for the recruitment industry than the Agency Workers Regulations (AWR). Problems of interpretation exist in many areas, and the guidance does not provide a full answer.

Currently the only way of establishing the true meaning of legislation is for there either to be a case brought by an affected party, for example to an employment tribunal, or for an application to be made to the Supreme Court for a declaration or a judicial review. Costs in employment tribunals are often not recoverable. Current applications to the Supreme Court require solicitors and barristers to be involved and attend a hearing before a single judge. Costs can easily exceed £30k to £40k, a significant amount likely to deter most from making applications under this route. Yet in the absence of proper interpretation and a ruling, all parties affected are prejudiced.

Both methods are invasive, expensive and potentially unfair in circumstances where it may have been possible for the legislation to have been made clearer in the first place. Should businesses and individuals have to pick up the bill? Should Government not take responsibility in this area?

The solution to this problem, to facilitate a clear interpretation which can be relied upon, is to have the ability to apply for a court ruling at a reasonable cost without needing to set up a test or even real contentious case. Supreme Court rulings have a binding effect which determines meaning for the benefit of lower courts. Accordingly if there were a quick process for applying to the Supreme Court in writing for a ruling, cutting out the main cost of a hearing and at least some need for legal counsel to be involved, for a fee sufficient to cover the Court costs, this would enable businesses and individuals to challenge meaning and achieve a binding result at low cost.

The benefits ARC says would be obvious to those who rely on interpretation of laws for the formulation of their business strategies, would avoid claims being made based on misinterpretation, and would provide a much need clarity for all. The cost savings to the recruitment industry under the AWR, for example, would be significant.

Similar processes exist in many other countries including France and Canada.

What can you do to help us? Join ARC and support this campaign.