WTF Lawyers

Gang up!!! Get him!!!

Disclaimer: My wife is a lawyer.

Yeah yeah, back of the queue... ;)

Why's that a 'loophole'? The law said that a fine would be paid if you parked on a yellow line, and defined how the yellow line had to be painted. If it wasn't painted properly, there was no fine. That's the problem with anti-loophole general provision clauses - you end up having to define 'loophole'. And one man's loophole is another man's integral part of the law, and so you end up with the uncertainties and ambiguities which the law is supposed to avoid, so that everyone can know what is lawful and what is not.

It's a loophole, because you'd have to be certafiably insane to think that the council's intention in painting a yellow line (even improperly) was anything other than restricting parking. What else could it possibly be? If you don't know what a yellow line is, then you shouldn't be driving; if you do know what a yellow line is then you'd be bonkers to think that its intended purpose has been negated by the fact that it has technically been drawn incorrectly.

I'm aware that this idea is absolutely full of holes and I've chosen a very simplistic example, but I'm sure there are lots of other examples in which a similar test could be reasonably applied.

In that case, get rid of the requirement for the T-section on the end of each line. Job done. If a law is silly then change the law to make it non-silly, rather than relying on a non-silliness law to patch things up.

Fair enough, and we want to avoid arbitrariness, but couldn't we introduce something to avoid loopholes which says effectively "Does the drafting or implementation of the law make clear its intent to a competent, impartial person"?

So let's take as an example the parking loophole which allowed people to get off fines on the basis that the yellow lines weren't terminated in a T-shape. Does the fact that the line isn't terminated in a "T" indicate to a competent, impartial person that it is not intended to restrict parking? Of course not, therefore the loophole should not be available.

Of course this just transfers the arbitrariness problem to the definitions of "competent" and "impartial", but it might solve some problems.

Your example, however, confers an absolute right on government to do what they want, as opposed to a constrained right to do what they want.

After all, who is the government to tell me when and where I can park?

Spot on

Maybe not.

Let us move the discussion of reasonableness of law to something closeer to our hearts, say chaining a bike up.

All Daily Mail readers know what odious and inconsiderate people cyclists are, so there should be a law that bikes cannot be chained up where they are a "hazard" or a "danger" to innocent, law abiding pedestrians.

Now that the law is on the statute books, where can we chain our bikes, and be sure to be lawful? What if some irate pensioner pushes the bike over, and the next passer by cuts their leg?

Not as emotive as, say, Starbucks management charges, but I am not so sure we, as a community, would be happy with such "common sense" approaches to an ever present danger on our streets.

How do loopholes make things more predictable than no loopholes?

eg - Starbucks using licence agreements to shift profits across borders. If the law said 'you pay corporation tax based on genuine profits then Starbucks would know how much to pay 100%, whereas now they are unsure whether they are going to find a loophole closed or determined illegal.

It's to do with being able to interpret and apply the law in a consistent way. The loopholes exist because the law has not (yet) been tightened up sufficiently. I'd far rather live in a state where everything is permitted unless it is specifically prohibited, and where it is up to the lawmakers to ensure that their prohibitions will achieve their policy objectives, than in a state where courts can say "Oh well, we know the law doesn't actually prohibit what you did, but we happen to think that what you did was wrong and so we are going to bend the law in order to convict you", if you get my drift.

I don't know very much about the Starbucks issues - there may already be some scope for HMRC to rule that what they did was not motivated by a proper business rationale other than straight tax avoidance, in which case that is another example of legislation drafted in a way that gives discretion to the executive and introduces uncertainty. On the other hand, if Starbucks were using a legitmate loophole (albeit a morally or reputationally dubious one) then the uncertainty is only over whether Parliament will see fit to change the law, not over what the law currently says.

Your example, however, confers an absolute right on government to do what they want, as opposed to a constrained right to do what they want.

Does it? My knowledge of how legislation works is woeful, but my thinking was that this loophole denial system would be used at the judgement level i.e., they could be applied by the judge/magistrate/jury.

Of course the answer is to close loopholes in the law. Unfortunately they will probably always come up because what is sensible and necessary in drafting a law may change over time.

So a government is formed which is suppoorted by a large number but not a majority of voters. This is usual. This one, however, while popular among 40% of the voters also oppresses a sizeable minority, of which you are one.

It seeks to limit your freedom and confiscate your property. It enacts legislation. It does not get the legislation right.

Will you now say that the spirit of the legislation is such that you agree to having your liberty infringed and your property taken?

Law requires consistency. What operates to protect us against bad government may also protect others against good government.

Well I am pretty sure that anything that causes harm has the potential for common law remedies in favour of the transgressor and against the guilty party. When chaining your bike you are either an inconsiderate toss-pot or you have some regard for ped safety.

Were such a law to come in it would be clear that you can park your bike in bike racks, and on public metal railings by wide pavements or squares. But parking them on narrow pavements would be a very bad idea, just as it is now.

I don't think your example is very good at all. The logical extension of your idea is that any law restricting parking of bikes would need to list all approved places, and all banned, and maybe talk about how wide pavements need to be for it to be acceptable to park.

And it would probably be necessary to park you bike in such a way that it could not be knocked over, which is what most sensible people do anyway.

I fear my point did not come across.

The reason commerial laws are detailed and complex, is that they try and formulate solutions for many "what ifs?" The problem with words like "reasonable" is that they need to be defined. My cycle analogy was aimed at showing, that whilst most forum members could not care less if tax regulations for multi-nationals are arbitrary, we would all be uneasy with being prosecuted for locking up our bikes, and falling foul of the "principle" of the offending (and imagined) legislation.

Therefore, tax legislation, aimed at maximising returns, being fair to all parties, and being consistent, must of its nature be wide ranging and complex. Simplistic stances such as "but you know what you should be doing" are more than a trifle naive, and loose sight of the fact that international business, have the choice of where to place themselves, and the amount of tax they pay in any isolated territory.

So let's take as an example the parking loophole which allowed people to get off fines on the basis that the yellow lines weren't terminated in a T-shape. Does the fact that the line isn't terminated in a "T" indicate to a competent, impartial person that it is not intended to restrict parking? Of course not, therefore the loophole should not be available.

Sorry, but you are wrong.
The law specifically defines the form that a yellow line must take, and specifically says that no variation is permissable. The fact that it does this is to enforce a uniformity of road signs and markings such that they can be interpreted by everyone everywhere to mean the same thing, and to allow the user to recognise an official marking or sign from an unofficial one. If they were not, a council in Leeds, for example, might decide to paint a completely different marking to denote a parking restriction and start fining people from Manchester who had no idea what that marking determined. You might think this is a facetious argument, but this sort of situation was common before national type approval of road markings and signs.

In the case of double yellow lines without T-bar terminations, anyone parking on them is not subject to a fine, because * they are not double yellow lines* and as such no offence has occurred and the attempt to impose a fine rightly has no weight in law. In these cases the council was perfectly well informed of the design they must paint, but they neglected to do so. It is incumbent upon them to paint the lines properly.

In that case, get rid of the requirement for the T-section on the end of each line. Job done. If a law is silly then change the law to make it non-silly, rather than relying on a non-silliness law to patch things up.

The T bar is required so that you know that the line terminates, and it hasn't just worn away. This law isn't silly. Councils that fail to paint their lines according to the requirements are.

It's actually an example of a very well-drafted law.
"To impose a restriction on parking, this is exactly what you need to paint in the road" - no loopholes, no grey areas, just something that you'd think would be easy to implement.

..this is to enforce a uniformity of road signs and markings such that they can be interpreted by everyone everywhere to mean the same thing, and to allow the user to recognise an official marking or sign from an unofficial one... You might think this is a facetious argument, but this sort of situation was common before national type approval of road markings and signs.

Not facetious at all, standardisation is absolutely necessary. But I think there's a difference between specified design parameters to maximise functionality and what should be enforceable under law.

In the case of double yellow lines without T-bar terminations, anyone parking on them is not subject to a fine, because * they are not double yellow lines*
What are they then?

The T bar is required so that you know that the line terminates, and it hasn't just worn away.

If the entire line has worn away to the point of near or partial invisibility, fair enough, you cannot be expected to respond to something that you cannot see. But if the T end of the line has worn away (or not been painted) what difference would it make to how the rest of the line should be interpreted?

It's actually an example of a very well-drafted law.
"To impose a restriction on parking, this is exactly what you need to paint in the road" - no loopholes, no grey areas, just something that you'd think would be easy to implement.
Agreed, it should be implemented properly, but it should also be interpreted reasonably (again for a given value of "reasonably" etc etc)

I think road law is actually a situation where the loophole test would uniquely applicable because you are effectively told what you can and can't do in every specific situation. For example, there is no ambiguity over what 20mph means (as opposed to what something like "dangerous" or "threatening" means). The fact that the sign is bent (as long as it's still legible) does not suggest that it means anything other than "your speed must not exceed 20mph".

Sorry, but you are wrong.
The law specifically defines the form that a yellow line must take, and specifically says that no variation is permissable. The fact that it does this is to enforce a uniformity of road signs and markings such that they can be interpreted by everyone everywhere to mean the same thing, and to allow the user to recognise an official marking or sign from an unofficial one. If they were not, a council in Leeds, for example, might decide to paint a completely different marking to denote a parking restriction and start fining people from Manchester who had no idea what that marking determined. You might think this is a facetious argument, but this sort of situation was common before national type approval of road markings and signs.

Yes, it needs to be consistent to be enforceable.

In the case of double yellow lines without T-bar terminations, anyone parking on them is not subject to a fine, because * they are not double yellow lines*

Well, of course they're double yellow lines, they're just not double yellow lines with T-bar terminations. :)

and as such no offence has occurred and the attempt to impose a fine rightly has no weight in law. In these cases the council was perfectly well informed of the design they must paint, but they neglected to do so. It is incumbent upon them to paint the lines properly.

Yes, although I'm pretty sure that I've also read about cases in which people have vandalised such lines to render them unenforceable.

I think road law is actually a situation where the loophole test would uniquely applicable because you are effectively told what you can and can't do in every specific situation. For example, there is no ambiguity over what 20mph means (as opposed to what something like "dangerous" or "threatening" means). The fact that the sign is bent (as long as it's still legible) does not suggest that it means anything other than "your speed must not exceed 20mph".

Without T bars yellow lines are just a bit of paint on the road. The law also serves to make sure councils reinstate yellow lines and other road markings after carriageway maintenance work.

With regard to speed limits, actually, the signage for that is also strictly regulated. 30 mph areas must have signs at each end, pavements and lamp posts at a particular distance. 40, 50 and 60 limits (not NSL) must have repeater signs at particular intervals, etc, or the road becomes an NSL.

Feck, you've gone from lawyers who specialise in getting motorists reduced sentences / no sentence, to Starbucks, then councils, now painting fecking lines on the road.

TTFU and kneecap the lawyers.

Happy place.

End of.

Thank goodness a rational argument is being put forward at last.

Without T bars yellow lines are just a bit of paint on the road. The law also serves to make sure councils reinstate yellow lines and other road markings after carriageway maintenance work.

So we're still going with this are we?

You've made very clear your position with regard to this, and I'm aware that that is how the law stands. But "the law is the law is the law" is not really a very informative or interesting argument. I am not arguing that the law should become arbitrary nor that we should simply ignore the law when it suits us. I am scared of a totalitarian state just as much as anyone else who doesn't own a tinfoil hat.

I am arguing that the law should change, exactly as laws always have. I am arguing that there should be introduced a clause, which allows the most trivial loopholes to be identified and ignored at the point of judgement, rather than later, and that this is done on the basis of how a reasonable person would interpret the situation on the ground. Lots of judgements are based on similar interpretation. For example (IANAlawyer etc.) in self-defence you are allowed to use "reasonable" force, so it has to be decided whether the force you used was reasonable or not.

With regard to speed limits, actually, the signage for that is also strictly regulated. 30 mph areas must have signs at each end, pavements and lamp posts at a particular distance. 40, 50 and 60 limits (not NSL) must have repeater signs at particular intervals, etc, or the road becomes an NSL.
Fair enough, that is a design requirement to make the speed limit clearly visible. Insufficient speed limit signs would be equivalent to a yellow line being faded or patchy due to wear, and I've already said that someone would not be expected to conform to a regulation that they cannot see. Arguing that a yellow line is not a yellow line because it is not terminated properly is like arguing that a speed limit sign is not a speed limit sign because the paint has faded a couple of pantone shades from the original colour.

http://www.bbc.co.uk/news/uk-england-london-21339117