The Constitution, mice and “yes but”

The word “reasonable” is an enemy: it acts as a codeword opening any decision to challenge. Parliament may think that it is creating wise structures and granting powers to those entrusted with the task, but a structure which has within it “reasonable”, or any one of a number of such tripwire words, is as if the bricks were mortared with porridge.

This is not a subject of grand constitutional reform, but it is what will cause reforms to fail. The pettiest words concealed within an Act or Statutory Instrument can hobble the constitutional intent, so the practices which insert those words are indeed constitutional in their effect, and a consideration of constitutional reform must look at reforming the practices of draftsmen.

Discussion of the topic must sound like a rank about minutiae, but while the intent reformers build mighty edifices, it is these mice which undermine the whole, so if what follows sounds like a rant, so be it.

Taking one popular bugbear as an exemplar: the immigration and nationality rules. The relevant part of the Act of Parliament concerning the grant of British citizenship starts robustly enough, saying that no one is entitled to citizenship unless they have lived in the United Kingdom for three years, and that it is for the Home Secretary to decide whether to grant citizenship. If it went no further then the system might actually be robust. However the wording goes on in a worried tone, and has a “yes but”; the decision must take account of X and Y and Z, that there must be no discrimination of nationality (or the usual list). That was well meant, but it puts such a wide crack in the Home Secretary’s alleged discretion that any decision is turned over to the courts, such that the rule is not “if the Home Secretary is gracious to grant it” as the plain words say but in effect “always grant nationality after three years unless the Home Office has a rock-solid reason against this individual”. Therefore a small proviso has reversed the meaning of the section.

The word “reasonably” is not a convenient throw-away line: it means there must be reasons and reasons that will be examined in court. “In her reasonable discretion” is not “the Home Secretary may decide” but “she must follow a quasi-judicial procedure”.

If a decision shall be made “in all the circumstances of the case”, that is not a fluffing wording: it is an instruction that the decision-maker must be prepared to prove that they looked at all possible relevant considerations, or for any missed point their action will be struck down.

If we broaden our view away from Marsham Street, Acts of Parliament which deal with administrative matters are mountains of pushme-pullyou, granting powers and then taking them away with the same hand. Where politicians express despair at the way courts too readily quash acts done in good faith, the first place they should look is their own practices in authorising them only half-heartedly.

It is not (always) the fault of the judges. If an Act of Parliament leaves the door open, the lawyers will wander in and help themselves to the larder.

All that said, limitations on powers granted are justified. If you give councils the power to close a road, they must be required to tell the residents, and not to block both ends. If they have power to impose parking restrictions, it must be for the purpose of easing congestion, not to raise revenue. Councils have power to decide planning applications, but that power is greatly restrained, so that they must act quasi-judicially, must exercise their power with a liberal mind and for proper reasons and according to expectations, because this goes to the heart of rights of property and enterprise. In that case you must expect planning powers to be exercised with excessive care and to be challenged in court, as they are.

Where a statute does give exercisable power, it is given and its limits are defined to ensure the public benefit, but those entrusted with that power will not be able to exercise it to the full extent it is given, because they must be sure of the legality, after advice from a worried lawyer. That betrays the breadth of the original authorising statute.

Some statutes, as I observed, must be curbed around with limits. In other cases though, vague or cautious wording in an authorising statute can mute the powers it is trying to give. If the Home Secretary is to be empowered to control immigration and to grant or withhold citizenship, the wording must be tight and not subject to provisos, however well meant, in order that she can exercise that power or refuse to exercise it, at her complete discretion.

I will at before too long get on to more meaty constitutional topics. I would urge as an integral step though a brutal review of the drafting practices applied in Westminster and Whitehall.