What if there is no law?

Whitehall. 1986. Friday afternoon.

It is an impossibly slow day and a government lawyer in the Office of the Parliamentary Counsel is trying to complete an urgent drafting task on an Act of Parliament.

Mid-afternoon, he’s almost done except for a few definitions. He’s tired and wants to go home. He dashes off the following definition, throws on his coat, and heads home:

“outer space” includes the moon and other celestial bodies

So there you go.

The totality of existence, including all stars, galaxies and planets; the contents of intergalactic space: cold dark matter, warm dark matter and hot dark matter; black holes, white holes and worm holes; a liberal dusting of Higgs Bosons: all shoehorned into a snappy sentence of just 9 words and a handful of apostrophes in the superbly named Outer Space Act 1986.

God bless that lawyer. Who needs Stephen Hawking or Albert Einstein when faced with such legal genius?

What about the poor moon though, tagged on as a mere legislative afterthought? Doesn’t it deserve its own standalone definition given the amount of hard work it puts in everyday—everyday—sloshing water in gargantuan quantities around the planet? Are the tides not good enough? Well, when you are a lawyer in the mid-1980s and you are rushing home to settle down in front of the telly with a cold glass of Blue Nun, then clearly the answer is ‘no’.

This does bring to the fore how often the law is a blunt instrument or ‘missing in action’, whether it be in areas of great technical complexity or in lovely, shiny new industries. How can it legislate for what it doesn’t know? How can it future-proof legislation?

Did Parliamentary Counsel in 1986 consider the likelihood of space tourism in 2014? Should he have? If he actually did so, would the definition of ‘outer space’ have been much more detailed? Does outer space start at 80kms above sea level, as our American friends assert, or 100kms above sea level, as argued by Australia (among others)? Why wasn’t this specified? Why does it matter? (Hint: below the 80kms-100kms line space tourists do not fulfil one of the criteria of being an astronaut according to international law.)

Many of the same uncertainties are also currently affecting regulation of the Internet. John Naughton in a recent article in the Observer amusingly noted that:

watching the legal system deal with the internet is like watching somebody trying to drive a car by looking only in the rear-view mirror

The law is so often behind what is truly happening in reality.

Take cloud technology, data protection and big data. Then there are the more specific concerns of many cutting-edge businesses. Is selling by Twitter hashtags feasible given how distance selling regulations work? How does Bitcoin work and are there any tax implications?

And then there are new technologies such as wearable computers with their snazzy optical head-mounted displays such as Google glass (not banned by the DVLA—yet).

The challenge—I mustn’t say ‘problem’—is typically that businesses see a multitude of opportunities opening up as technology moves on at a pace, but the law is having a cucumber sandwich, nice cup of tea and discussing whether failure to wear a top hat outside should continue to be a criminal offence.

So what should businesses do when the law has not caught up? What if there is an outstanding business opportunity which simply cannot be ignored?

Here's a few thoughts from our team:

  • seek guidance from commercially astute, specialised and experienced lawyers and experts in the field (or indeed both). Particular care obviously needs to be taken if you want to do something and criminal sanctions potentially apply
  • undertake focussed and comprehensive research, work out the risk and manage it. What is the worst case scenario?
  • be flexible. Matters might change quickly
  • document why certain decisions were made so that you have evidence should the worst happen. Did the business do its best to understand the laws that apply or might apply? Did it act reasonably?
  • accept that sometimes the law is messy, inconsistent or non-existent
  • lobby governments, regulators and any relevant stakeholders, where appropriate. If the law is an ass, tell somebody that it is, and
  • do some horizon scanning. The law may be about to change. Don't get caught out!

As always, if you have any thoughts or experience about starting a business venture in an area where the law just says 'meh' or 'dunno', do let us know on the form below. We'd love to hear from you.

In the meantime, I am going to think long and hard about booking on Virgin Galactic. Only $250,000 (about £155,000) and 'deposits are refundable'. I wonder if Sir Richard takes Nectar points?

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