In my last couple of posts, The Rule of Law and Lawful Revolution, I explored the possibility of a Constitutional Parliament1 enshrining a set of fundamental legal principles with which all legislation and all government activity would need to be compatible.
For that to happen we need to establish what set of principles would:
be necessary to create a coherent, stable constitutional framework; and
stand a good chance of being approved by ordinary members of the public elected to a Constitutional Parliament.
To my mind, fundamental principles are not like ordinary points of law whose very existence depends on an existing legal framework and therefore need to be established through debate; rather, they are natural features of the moral landscape — we either recognise them as general rules, or we don't. Recognising them undoubtedly throws open a host of questions which will need debate, but the act of recognition is simply a matter of perception. Fundamental constitutional principles must therefore be sufficiently obvious that an overwhelming majority would recognise them.
Previous posts have discussed some of the principles I think deserve to be enshrined (and I intend to bring them all together in a summary post before long). Here I’m going to explore a fundamental principle of governance which, as far as I know, has never been formally stated and seems to be widely ignored: that, as a general rule, agents of the state should not themselves be the cause, through the application of policy, of harm or mischief which, in the normal course of events, it would be the state's responsibility to prevent, mitigate or remedy.
Caveat Iudicator
In the judicial sphere (which is where I first became aware of it) this principle has two implications: indirectly, it affects how the courts should judge the actions of official bodies; and, more directly, it affects how the courts themselves should determine cases which they cannot in good conscience decide purely on the evidence and reasoning presented to them.
My impression is that, currently, when a court feels that the arguments are evenly balanced, it will base its decision either on prejudice – e.g. favouring arguments put forward by established authorities – or on an essentially arbitrary rule such as caveat emptor. Inevitably, in some cases, this will lead the courts themselves to create injustice where, if they had not been involved, there would have been none. It seems to me that, in such circumstances, courts should fall back on the question of whether a particular judgment would leave their own hands clean. In other words, as a general rule, courts should, as a matter of policy, risk failing to remedy an injustice or prevent a mischief, rather than risk being the cause of one.
This principle came to my attention in the late nineties, when I had cause to wonder what justification there was for caveat emptor to be applied in a credit transaction, and how the maxim became part of British law2. I realised then that there were quite likely other areas of law where the courts, in striving to be consistent, followed essentially arbitrary rules. In light of that, I have for several years advocated reforms aimed at improving the integrity of the law (as discussed in my essay, The Fog of Law) but, until recently, I hadn't given much thought to the broader implications. Over the last few years, though, I’ve come to suspect that some important cases might have been decided differently if the courts had been properly conscious of the general principle.
Caveat Gubernator
In recent years, the Government has taken major decisions – to leave the European Union precipitously, following the 2016 referendum; and to suspend the normal functioning of society when Covid emerged – which rested on highly controversial scientific or quasi-scientific evidence3. Legal challenges pointing to contrary evidence were dismissed by the courts, who accepted the argument that, where there were conflicting expert opinions, the Government was entitled to choose which one to base a decision on.
In some circumstances the necessity of taking a decision makes this argument reasonable. In adopting that policy with discretionary decisions, though, the courts risk transferring administrative decisions into the realm of politics — effectively giving the Government carte blanche to implement any policy that they can find suitably qualified experts to endorse.
It’s not always easy distinguishing between necessary and discretionary decisions, but I find that an analogy with road junctions helps:
Necessary decisions can be likened to coming up to a T-junction, where the existing road ends and it’s necessary to turn either left or right; a decision has to be taken, and can only be taken on the basis of information available at that time — in such circumstances, a policymaker has no choice but to choose what advice to believe.
Discretionary decisions are more akin to approaching a side road: there is an opportunity to turn off but there is no positive need for any decision to be taken because there’s a clear default of continuing on the existing road — in those circumstances any decision to change direction needs to be justified by clear evidence that the result will not be harmful.
The question of whether an issue falls within the sphere of law or of politics is also not always obvious. It is clear, though, that a decision which would be unlawful if it went against undivided expert opinion cannot fall within the sphere of politics and must therefore be decided on apolitical grounds, even when expert opinion is divided. There is a need, therefore, for a rule governing circumstances where there is no consensus among relevant experts.
From this perspective, it is only when there is a compelling reason for a decision to be taken, at this particular juncture, that the Government has a right to rely on advice from one set of experts, and disregard contradictory advice from others.
In any other circumstances, I suggest, in the absence of an explicit overriding legislative mandate, any policy decision that can reasonably be expected to cause nett harm to particular individuals or groups (who are not themselves significantly contributing to whatever problem the policy is intended to address) should be regarded by the courts as a breach of the policy-maker’s authority.
That raises the question of what constitutes ‘a compelling reason for a decision to be taken, at this particular juncture’ — which takes us out of the realm of law (and calls for deeper analysis of what constitutes a legitimate goal for government to pursue – a question I intend to explore in a future essay).
Caveat Legislator
In A Trust of Sovereignty, I argued that Parliament holds sovereignty in trust for the people; and that the sovereignty of a Constitutional Parliament is superior to the sovereignty of a general-purpose parliament.
From this perspective, it follows that the legislative powers of a general-purpose Parliament are not absolute, and need to be exercised in accordance with any principles enshrined by a Constitutional Parliament. From this I would argue that, in a mature society, legislation enacted by Parliament which falls outside the set of explicitly enshrined constitutional principles, can only be valid if it is consistent with a principle that is implicitly enshrined. In other words (if we live in a mature society) implicit in the body of existing statutory law is a set of constitutional principles which have not yet been formally recognised as such.
One of those principles, I suggest, is that anybody engaged in an activity which has the potential to cause significant harm to others has a responsibility to ensure that any such harm is avoided; and this principle is binding on Parliament (whose activities clearly have great potential for causing harm) as much as it is binding on ordinary members of the public. In other words, the existence of laws making it an offence to drive a motor vehicle without due care and attention, imply that it is also an offence to legislate without due care and attention.
That in turn implies that legislators who have caused harm by legislating carelessly might be punished for any harm caused.
Caveat Populus
Having said that, I see no benefit in opening a can of worms which is clearly well past its best-before date. We have laws in order to promote social harmony, rather than to satisfy people’s desire for vengeance4; if we try allocating blame for the misgovernment of recent years, we have to consider how much of it falls on the public at large who, for years, have tolerated a system which is glaringly inadequate.
Discarding that can of worms will, however, require Parliament to acknowledge the inadequacy of the current system — by legislating for constitutional reform to address the most obvious incoherences. If the political establishment itself initiates such reform, I think it could reasonably be argued that the violations of recent years have been inadvertent and should be pardoned. If they resist such reform, however – if they make it necessary for reformers to appeal directly to the King to convene a Constitutional Parliament – then, in my opinion, those violations could reasonably be judged to have been wilful.
In Lawful Revolution, I suggested that the first test of a constitutional crisis is that ‘The system as it currently operates is irredeemably flawed and works against the public interest in important ways’. The misgovernment of recent years is obvious to many people but clearly not to all. So, in future posts, I intend to explore some specific instances where Government and Parliament have caused significant harm through exercising the powers delegated to them without due care and attention.
In A Trust of Sovereignty, I argued that Parliament holds sovereignty in trust for the people; and that the sovereignty of a Constitutional Parliament – i.e. a parliament elected to sit temporarily in order to legislate solely on a specific constitutional issue – is superior to the sovereignty of a general-purpose parliament.
Speculating about how the maxim caveat emptor became dominant in Roman law over caveat venditor, I concluded that it was probably because ancient Rome was a predominantly cash economy: most commercial disputes would have involved a dissatisfied buyer seeking a refund rather than a seller suing for payment that was being withheld — if the seller was dishonest and the judge failed to remedy the situation, blame for the injustice would lie primarily with the seller; but, if the seller was honest and the judge ordered them to refund a dishonest buyer, the blame would lie primarily with the judge.
As I understand it, the maxim was adopted as a fundamental principle of British Common Law in order to provide commerce with a measure of certainty, so that traders could be confident that the outcome of disputes would not depend on which judge heard them. Unfortunately, by applying it equally to cash and credit transactions, the courts have undoubtedly made themselves the cause of injustice and, in some cases, might have made themselves the instrument of fraud.
Some people might wonder how the decision to leave the EU rested on quasi-scientific advice: the short answer is that, if expert opinion had been unanimous in saying that the economic and social effects would have been disastrous, Ministers would not have been able to claim that the decision was anything other than political. Since there were economists and social scientists making plausible arguments that the foreseeable harms would be outweighed by longer-term future benefits, the Government was able to claim that they were acting responsibly — even though the benefits were debatable (and perhaps only visible through rose-tinted glasses*) but some of the harms were indisputable.
* For the record, I myself have a collection of rose-tinted glasses which I’ve often found very useful (though I’ve never had the particular type that allowed one to see the benefits of Brexit).
I say that we have laws in order to promote social harmony, rather than to satisfy people’s desire for vengeance but the law does recognise that such desire is a potential source of disruption which, in many cases, is best satisfied if the law includes some measure of retribution. In those cases the purpose of the retributive element is to maintain harmony through mollifying the desire for vengeance.