In comments to the “lexicon” post the other week, a mate pointed out to me that although I tend to use the phrase “The Judge Over Your Shoulder” to refer to the risk-aversion of public servants who are scared of litigation, this is arguably a travesty of the actual booklet of that name. TJOYS, the civil service guide to making decisions which are robust to judicial review, spends a lot of time on reminding its readers that a central principle of British administrative law is that if statute law gives your organisation the power to make a decision, then you can’t chuck that gift away – you are not allowed to set policies which “bind your discretion”.
On the fact of it, this looks like an excellent rule; a sort of “thou shalt not construct accountability sinks”. But I am sceptical.
Basically “you are not allowed to bind your discretion” reminds me of GK Chesterton’s remark about the slogan “my country right or wrong”. He suggested that this was a bit like saying “my mother, drunk or sober”; although not objectionable in itself, it’s something that you’d never consider making a big deal of unless you had at least a suspicion that things weren’t so great. And similarly, the very prominence of the proscription against accountability sinks in “The Judge Over Your Shoulder” probably ought to be seen as at least weak evidence that the temptation to create them exists.
I think the problem is that by saying “you are not allowed to bind your discretion”, the policymakers are implicitly saying something like “you, the civil servant, are going to carry the can if anyone does”. And that in turn has the threatening implication “and consequently, if you know what it good for you, make sure that there is no can to be carried”. In some other civil service training material, this is given a positive spin; make sure that the systems you create to industrialise your decision making are designed properly, so they don’t create edge cases, anomalies or repulsive consequences:
“Ministers need to know they have the support of the officials with whom they work most closely, without in any way detracting from the Civil Service Code of Honesty, Objectivity, Integrity, and Impartiality. This is neatly demonstrated in Yes Minister, in an exchange between Jim Hacker and Bernard, his Principal Private Secretary:
“You mean that when the chips are down, you'll be on my side, not Sir Humphrey's?”
“Minister, it is my job to see that the chips stay up!”
But it’s more likely in my view that the real lesson taken away from TJOYS is a sort of dark pattern; that civil servants will read “you cannot bind your discretion” and take away the message “when you construct accountability sinks, make sure you’re sneaky about it”. For example, set up the accountability sink to create a paper trail, so that every stage has a minute recording your taking the decision, but doing so on the best possible evidence, with anything that might have complicated matters just not being recorded. In fact, set up systems to prevent potentially difficult information from getting throough to you. Make the complaints process obscure or difficult. Make sure that any adverse consequences of the system are likely to fall mainly on people who are not good at filing complaints. You can build accountability sinks as deep and robust as you need while paying lip service to the principle of “no binding discretion”, and it’s very hard to catch on that this is being done, if you’re careful.
And in the final analysis, you can incorporate the judge over your shoulder into the system itself. As any parent of a child with special educational needs in the UK is aware, the primary means by which local authorities reconcile their legal obligations with their available resources is “rationing through litigation”. Being taken to court and losing is unpleasant, but you get used to it. And once it’s lost its stigma in terms of career outcomes for the officials involved, the POSIWID principle takes over. It turns out that if things have got so screwed up that you end up only providing a necessary service to people with the time and resources to get a court order, not only can you create a system that binds your discretion, but the judge over your shoulder will stop looking over your shoulder and muck in to help you do so.
I am instantly attracted to the horrifying explanatory power of "rationing by litigation" - that is precisely what's going on with SEND and EHCPs, thanks for that. And it is a neat (for evil values of 'neat') accountability sink manoeuvre by central government to have stripped local government of income and income-generating power while leaving them with a statutory responsibility that is growing rapidly in cost.
Much to think on, but the general principle that people should be able to challenge administrative decisions by arguing that the administrators had the power to act on the relevant reasons but opted not to seems sound to me. The paper trail is only going to get the administrators so far, particularly where the decision is manifestly non-responsive to things that ought to count. So much is going to depend on how deferential judges are prepared to be to the executing and, conversely, how willing to call out obvious bs.