Legislation: keep it simple and to the point
Consumers could do without having to wade through War and Peace to find a law’s purpose and context
WHEN parliament makes new laws it should focus on the purpose it wants to achieve in the real world. We are told by the courts that we must interpret the words of a law having regard to its purpose and context. That should be the starting point, not the end result of legislation.
Take, for instance, the Protection of Personal Information Act that will soon be thrust on the business world consisting of 115 sections, plus a long schedule plus regulations yet to appear. The purpose of that legislation is to see that personal information is not used for a purpose for which consent was not given (such as direct marketing) and to ensure that personal information held by anyone is not, without consent, revealed to people who will use it to the detriment of the owner of that information.
The context of the law is a world in which hardly anything is private. In the age of Facebook and other social networks and Google and other search engines it is overkill to make it unlawful to keep someone’s name and address in your e-mail system when you no longer really need it and have the information regulator chase you down.
But for the fact that we have to match our privacy legislation to that in foreign jurisdictions, all we really need (and all they really need overseas) is legislation that says you must not use any personal information for a reason which the owner has not consented to; and if you have the personal information of third parties, keep it private and secure. That does not need a law 115 sections long.
The laws relating to financial advisers is contained in a handbook which runs to two large volumes. What it deals with is the fact that anybody acting as an agent for another in providing financial services should not take excessive or secret earnings and must not allow themselves to have their own interests conflict with those of the client. There is now so much legislation governing these financial advisory services that the essentials are often overlooked. And can you think of any real social impact that the Consumer Protection Act with all its subordinate legislation (about 500 pages in my copy) has had in the real world?
Our insurance laws are starting to get it right. These laws are focusing on the real purpose of insurance legislation, namely to treat customers fairly. Let’s hope that any future insurance market conduct legislation deals with those principles without confusing overelaboration.
We used to have the 1992 Corruption Act that consisted of five sections including the short title. Now we have the Prevention and Combating of Corrupt Activities Act, 2004. It runs to 37 sections and the title and preamble are almost as long as the previous act. Corruption, like the proverbial elephant (in or out of the room), is something that you recognise as soon as it arrives without having it defined in 20 sections of legislation.
The courts, after all, had no difficulty in putting Schabir Shaik in jail under the short 1992 act. And it is hard to think of anyone jailed under the long 2004 version.
We need detailed legislation dealing with complex entities like companies. But when it comes to laws affecting the day-to-day activities of ordinary people, it would help the consumers (that is, you and I) as well as the goods and services providers (that is, also you and I) if the laws could focus on the bull’s-eye so that we can all easily know who is the target and where the arrows are coming from.
Patrick Bracher (@PBracher1) is a director at Norton Rose Fulbright.