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(MxA)x(O/T)=E&S: a formula for successful in house lawyers

24 June 2015

E=MC2 is one of the most famous equations in history. WikiHow helpfully explains that the formula describes how Mass can be turned into Energy, and vice versa.

After the Conservatives won an outright majority on 7 May, two heavy masses landed on my desk – the Conservative Manifesto and then, shortly afterwards, the explanatory notes accompanying the Queen's Speech which specify which parts of the Manifesto the Conservatives intend to pass into law.

While foxes reading the explanatory notes may be relieved at the current absence of a proposal for a free vote on reinstating the hunt, almost all other proposals are being pressed ahead with. 

The John Major government struggled to pass legislation with a majority of 21 so it is likely that, with a majority of 12 Cameron's "minor majority" may be troubled on some bills.  It is also likely that; with only around a quarter of the House of Lords being Conservative; many of the bills will have a rough parliamentary passage. However the Salisbury Doctrine means that, ultimately, any bill mentioned in the Manifesto will be allowed to pass into law – albeit after having been mauled by the Lords in many cases.

So while the headlines are clear and substantial, the detail is likely often to be ambiguous, late changing and sometimes awkward as a result of compromised drafting.

A Mass of Ambiguous law.  What a great way to sap our energy and to create traps and risks for our businesses.  Or, perhaps, it is an opportunity to create energy and success for ourselves, for our teams, and for our companies over the current five year term and beyond.

So perhaps in house lawyers need our own Mass/Energy Formula: (MxA)x(O/T)=E&S. Or, in plain English, (as most of us have had to learn to live with maths rather than loving it): when faced by a Mass of Law (M) multiplied by a lot of Ambiguity (A), your Energy (E) & Success (S) levels will be determined by how effectively you maximise the Opportunities (O) that you can find for you, for your team and for your business from that Mass of Ambiguity; and minimise the Threats (T)!

This is the first of three blogs that I have been asked to write by RPC to examine how this formula works when applied to the Queen's Speech and why it matters to you to understand these points now while you may still have some time to negotiate budget and resources with your CEO and CFO which are adequate to deal with what is coming.

In this this Blog I will look at the reasons why the M and A are both likely to be large. In the second Blog I will look at the Opportunities that are presented; and in the third the Threats.

Mass and Ambiguity 

As mentioned above, there is a lot of primary legislation to come and it is, largely, going to be built on top of existing legislation – the Cities and Local Government Devolution Bill cites 11 pieces of primary legislation alone that it will sit on top of.

It is also likely that many of the Acts are then going to spawn secondary legislation: Statutory Instruments, regulations, rules and guidance which will emerge from central government, local government, delegated bodies and regulators.

Additionally, some law may end up being repeatedly updated or adapted over the term as new and partially conflicting legislation is made during the latter parts of the term – particularly on devolution and, potentially, as a consequence  of renegotiating EU powers or opting out of the EU altogether.

This means that if the legislation is well thought through then it may not arrive that quickly (eg the British Bill of Human Rights which is already being put to the back of the list); and if it is done quickly then it may not be that well thought through – especially as increasing amounts of it are going to be emerging from new national and regional legislatures which are acquiring new powers and so also potentially learning new legislative and regulatory drafting competencies within financially stretched public bodies.

Unavoidable complexity

The result is that there is likely to be a lot of unavoidable complexity in understanding and applying the new laws to business life and a lot more geographic variation within the UK and even within England than there has been in the recent past as you will have, in an increasing number of respects, to treat Scotland, Wales, London, the areas inside Manchester's M60 ring road etc. as different places from "residual England".

And, if the term "residual" sounds as unappealing to you as it does to me, then does this mean that there will be future waves of partial devolution in prospect by the end of the next term? I saw a T Shirt recently with the logo "The People's Republic of Cornwall" – many a true word spoken in jest?!

Another important thing to consider is that there may be unexpected sources of effects– not everything only “does what it says on the tin”.   For example, the immigration bill may contain a “skills levy” on non EU migrant workers to pay for some of the costs of compulsory training for 18-21 year olds; the Extremism Bill is likely to contain new checks for staff who can work with children; the Housing Bill looks likely to move more planning decisions to “simpler and faster neighbourhood planning systems”; the Enterprise Bill does not just promise to cut £10bn of red tape but also to reform business rates and create a conciliation service to deal with small business and payments disputes…

…in other words thoughtful, proactive monitoring is likely to be needed, not just reactive reliance on briefings in known core topic areas.

So it is clear that our Mass x Ambiguity score is large. In my next blog I will look at the Opportunities that this presents….