Future law, Sally Mewies - ThinkHouse September 2010

David Lowe: New law is a big challenge for any in-house lawyer. Sally Mewies is going to talk to us about key trends. So Sally, as lawyers surely our role is just to focus on the existing laws and the problems thrown up by that?

Sally Mewies: No. Wouldn't it be easy if that were the case! Clearly, we've got a dual role. We need to help our clients understand the law; apply the law as it stands today. The big role for in-house lawyers, of course, is looking forward, seeing what's coming down the track, getting the business prepared for those changes they may need to implement, notifying the board about that if it's going to have a material impact on the business. And, I see us playing a key role in that area; in terms of helping clients, advising them on new laws, potential regulation, new cases. The whole lot really.

David Lowe: You touched on data, what about freedom of information?

Sally Mewies: Yes freedom of information. Again, sitting alongside this idea of increasable liberties is this whole concept of transparency, open government, so likely to be an extension of the Freedom of Information Act, whereby we get more information about what government is doing. This might actually extend to private sectors, who are dealing with public sector businesses. So again greater transparency around what's going on there.

And then this whole issue of less regulation, easier to do business, and repealing of all of that regulation. And I don't know if you've heard about this thing about 'one in, one out'? So where there's a piece of legislation that's going to be promulgated, if it has an impact or a cost to business you have to find another piece of legislation that you remove or repeal before that one can go forward: So this 'one in, one out' concept. It will be interesting to see how that actually works out in the end, because it sounds a bit oversimplified.

David Lowe: Let's talk about Europe. What about the trends in Europe?

Sally Mewies: Coming out of Europe, two things that I think are interesting to some of our clients. One is around consumer law: so trying to sort of streamline all of the consumer laws; bring them together to make them easier and clearer and simpler; some greater protection for consumers around misrepresentation.

And then again on the European contract law side. It must be 15 years ago that the European Commission started talking about introducing a European contract law to make life a lot easier for businesses coming in from outside of Europe, to contract, and that still is on the agenda.

David Lowe: What do you think about European contract law?

Sally Mewies: I think it's probably 10 years since this was first mooted, and everybody thinks it's a really good idea. But actually trying to get it into practice and produce something that's workable, and isn't another sort of cumbersome structure coming out of Europe, I think is really quite hard.

But I do think it's challenging for businesses outside of Europe, coming into Europe and trying to contract on terms that are clear and simple, because, as you know, every single jurisdiction has a slightly different view of contract law, and that is hard.

David Lowe: I've read somewhere, Sally, that one of the options is perhaps to create a new European legal system into which people can opt in and therefore leaving historical systems behind. What do you think of that?

Sally Mewies: I think there are a number of options that are floating around. One is just to have clauses, a bit like Incoterms actually, having clauses that you can use and slot into a contract to deal with certain aspects of contract law, right over to a whole civil code that wouldn't just deal with contract law but would deal with property law, tax - so you'd actually be adopting a civil code, a bit around the American style, and you'll be using that completely. So you've got a whole range of different options there.

David Lowe: If you were an in-house lawyer in a business operating across Europe, consumer facing, what would be the key themes that you would be monitoring?

Sally Mewies: It is quite difficult for businesses to get it right in different jurisdictions. So one of the things that I would certainly be campaigning hard for is to try and get some uniformity across all of those areas. And that's definitely something that the European Commission has been looking at.

And again I think around regulation on the contract law side, I think that's interesting, and I think I'd certainly be watching out for it, but it still feels to me like it's a long way off.

David Lowe: So Sally, if I was an in-house lawyer I'd be feeling pretty overwhelmed. Coalition government, new laws in Europe, Equality Act. What should I be focusing on?

Sally Mewies: You have to keep an eye on the consumer side of things and the regulation around that, if you're a consumer business and it's relevant to you. And clearly you have to keep an eye on the employment side as well. But switching your focus back to the UK, I think I would just, at this stage, understand the changes, understand the philosophy of the new government, i.e. this move away from authoritarian state to more civil liberty and the kind of big society versus big government; so the power going down to local councils, and look to see what opportunities there may be for your business in relation to that because there could well be some.

David Lowe: So as an in-house lawyer the job isn't just about making sure the company's compliant. This must throw up opportunities as well. Can an in-house lawyer make a contribution on that?

Sally Mewies: If you're a private sector company that's working in the health sector, then it's going to be important to understand the changes that have been suggested around that right now, because there will be opportunities. And I think that's true in lots of aspects of government. So if you're a supplier into government, then you can see that you need to get your head round what's going on and you need to be monitoring that carefully.

My sense is that if you're a private sector business working in the private sector it's less relevant, although obviously it's worth looking to see what opportunities there might be around some of those things.