Issue 159: 2018 06 21: A Matter Of Discretion

21 June 2018

A Matter Of Discretion

The demands on officialdom.

By John Watson

Everyone will be pleased that Billy Caldwell has got his cannabis-based medication, and if that results in a change in the law (as seems likely to be the case) which enables a similar line taken elsewhere , that too seems to be to the good.  This is not, after all, about the legality of recreational cannabis but about whether the drug should be used to alleviate suffering.  Who would want to prevent that?

So far, so simple, but there is another angle to the story, which is worth considering.  The Home Office were aware of Billy’s predicament long before the papers reached the desk of the Home Secretary but took no action to help.  Perhaps that was because of some internal rigidity or perhaps the granting of special licences of this sort is something which requires a decision at the highest level.  The fact that at the moment Billy gets his medicine pursuant to a temporary 20 day licence (which will presumably have to be renewed regularly) granted to the doctors of the Chelsea and Westminster Hospital, suggests that the Home Office have had to jump through a fair few hoops.  How broad a discretion should they have in such matters?  When should ministers be able to intervene in hard cases and how tightly should this power be controlled?

Dispensing powers, allowing the government to exempt particular citizens from the general law, have always been regarded with suspicion.  That is partly because of their history.  James II used them to exempt Catholic officers from the Test Acts, and the Bill of Rights which followed his abdication limited them specifically.  Such events cast long shadows.  Now, in 2018, more than 300 years later, Parliament jealously protects its control of the executive, restricting the powers given to ministers to act on their own initiative.  That is why there has been a row about the discretion allowed to ministers under the EU Withdrawal Bill (“the Henry VIII clauses”), the government’s rights to make treaties under the Royal Prorogative, the power to go to war without parliamentary sanction.  In each case the fundamental question is the same.  When is it appropriate to allow the executive to make decisions?  When should those decisions be referred to Parliament?

In domestic affairs there is a balance to be struck.  Give the executive too much discretion and democracy is undermined, issues which should be aired in public being decided in dark corners; apart from anything else that increases the risk of favours being done to the government’s friends.  Too little discretion and there is a risk of the civil servants being trapped by the rigidity of their own legislation.  Certainly a fair amount of flexibility is needed to oil the wheels of administration.

For an example of discretion working well, look at the decision last week not to prosecute Sandra Holmes and her son for taking her father, a Parkinson’s sufferer, to Switzerland to end his life in a Dignitas clinic.  Technically that is a criminal effect, presumably assisting suicide, and Ms Holmes must have been relieved when the Crown Prosecution Service ruled that a prosecution was not in the public interest.  She did not expect to be prosecuted, mind you, and the authorities were sympathetic, but nonetheless it was no doubt a worrying time.  Yet it is worth reflecting on how well this system under which the authorities dispense with prosecution in suitable cases actually works.

The public are nervous of allowing people to help others commit suicide because of the obvious risk of abuse.  “You know, granny, you are rather old.  Perhaps it would be better to end it painlessly now and, by the way, can you just check that there is no problem about your will?”  That is the thing which scares people, and however many checks overseen by medical experts are put in the way, that is something which would inevitably happen from time to time.  When the public are nervous, MPs become nervous too and that is why assisting suicide has not become legal in the UK.  Instead we have this rather ad hoc arrangement under which the authorities do not press charges where they are satisfied that motives are entirely compassionate and that the deceased really did want to die.  Those who want to move matters onto a statutory basis say that that operates harshly on those, like Ms Holmes, who want to help a parent commit suicide for the best of all possible reasons.  Is it harsh?  Probably.  Would some statutory test be better?  Not necessarily.

The decision to help someone to commit suicide is a very serious one and it is perhaps not inappropriate that those who take it should run some sort of risk.  The fact that a decision on prosecution will only take place after the deed is done is a help here.  An unscrupulous relative, who would cheerfully rely on a ruling given in advance, might be nervous that his or her work might be seen as self-serving when looked at in retrospect.  An innocent and bold relative, Ms Holmes for example, relies on her fellow citizens supporting her decision.  Yes, there is a period of uncertainty, but provided that discretion is exercised with good judgement and sense, that does not seem too high a price to pay for a system which works.

Of course, the success of the system depends upon the way it is operated and that is generally true with executive discretions in all areas.  To exercise a discretion an official needs judgement and sense.  To apply rules he needs neither.  Provided he can read them he can be as stupid as you like.  That is why the level of delegation acceptable in any legislative system is in direct proportion to the quality of those who are to exercise the delegated powers.  Good quality ministers and civil servants should be able to handle the subtleties of judgement-based decision-making.  If you gave the same discretions to poor quality ones, you would have a mess on your hands.

It is an odd reflection that when the civil service sets its criteria for recruitment it is not just finding people who can work efficiently.  It is setting a framework which will dictate how much discretion should be allowed throughout the British legal system.


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