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Exercise of Reasonable Discretion

Volume 487: debated on Wednesday 4 February 2009

Motion for leave to introduce a Bill (Standing Order No. 23)

I beg to move,

That leave be given to bring in a Bill to provide that public authorities and public servants shall not be subject to any criminal or civil penalty as a result of the exercise of reasonable discretion in the performance of their functions; and for connected purposes.

This Bill is about advancing common sense and fighting bureaucracy. I owe its rather strange long title to my right hon. Friend the Member for North-West Hampshire (Sir George Young), my friend and supporter of the Bill. There is, of course, a mild irony in the title because it is itself an exercise in bureaucratic speak. It resembles my favourite rule in my college library—rule 6, which is that “No one is to mark or deface any book or other property of the library”, alongside which someone had added, very neatly in ink, “Hear, hear”!

The formal intent of the Bill is to indemnify public servants, central government, local government and other public agencies from legal action if they had taken decisions motivated by common sense, whatever the rules strictly said. I shall come on in a few moments to the underlying thought, but at the outset let me first get three potential criticisms out of the way. The first is that what I propose is so self-evidently sensible that it is already part of our law and practice. It is true that there are common-law precedents—as well as modern practices such as that of Her Majesty’s Revenue and Customs, which explicitly uses extra-statutory concessions that go beyond tax law—but however sensible those measures are, they do not establish a general principle or cover every case. A second objection might be that the Bill in some way represents a charter for vexatious litigation and legal challenge, but I would maintain that the legal concept of reasonability is by now well established. My intention is to fight off unnecessary legislation, far from encouraging it.

I imagine that it might suit some opponents of the Bill to paint me as some kind of anarchist, denying the proper function of rules in a modern society. It is, perhaps, rather unlikely that a former inhabitant of the Whips Office would undergo such a deathbed conversion, and I assure the House that I have not—but I think that even the best and most well-honed rule book must be interpreted in the light of the facts, if only because rules often clash with one another.

That brings me to the substance of my case. There probably never was a golden age of balance between sensible rules on the one hand and the wise use of discretion on the other. I generally welcome the growth of judicial review since the second world war as a necessary curb on an over-mighty Executive and arbitrary decision-making processes. Nor is it wrong to ask for greater openness and transparency in our public affairs. However, all that can be taken to extremes, can exceed the bounds of common sense, and can actually harm us.

The House will have noted that there has been a lot of talk about this issue recently, since the idea occurred to me but not, I think, because of that. Indeed, we have legislated, in the Compensation Act 2006, to try to curb the paralysis that threatened, for example, outdoor activities for young people when adult volunteers no longer felt able to take part in them because of implications of liability for reasons of health and safety and so forth. I believe, however, that the “mind your back” culture has seeped much more deeply into our national life, affecting and poisoning the whole of it.

I nearly always respect the writings of Libby Purves. She is eminently sensible. Some months ago, she wrote in an article in The Times:

“We read too many stories about this craven, inhuman, poltroonish cowering behind rules and routines, and about individuals who get into trouble for momentarily breaching them in the name of humanity or sense.”

Retreat into the rules is an excellent bureaucratic bomb shelter. Its private sector equivalent would perhaps be the saying—now, I think, somewhat discredited, and certainly out of fashion—that no executive was ever fired for choosing to buy IBM computers. Incidentally, my Bill could be usefully adapted to include private sector employees engaged in the discharge of their duties, although it is not currently so drafted.

Alongside every petty bureaucratic tyrant who relishes frustrating someone by finding a rule with which to do them down is an even worse and wider set of problems. They include the deterrent effect on decent public employees of the fear that any risk they might take could backfire if it were unsuccessful—if something went wrong—and, at the level of, say, a local planning authority, the fear that any decision, however sensible, might set a precedent for some other proposal.

My final and, I think, my greatest bugbear is the collapse and deformation of public service into a hollow shell of process, and training courses undertaken not so much to improve competition or competence as to cover any threat of litigation. While it is always dangerous to comment on particular cases, I wonder, in the context of this week’s events, how many decisions on school closures were made with an eye to the courts rather than in the interests of children and their families. Frankly, fear of liability seems to have more effectively stopped London this week than ever fear of Hitler did.

My Bill is a simple one. It seeks to rebalance matters by providing a public authority or public official with the defence of exercising “reasonable discretion”. It would support those who back their own professional judgment—and also, perhaps, all those who work hard on our behalf without a professional qualification, but who seek to do the best for their customers and to act both sensibly and responsibly.

By establishing the principle of

“the exercise of reasonable discretion”,

the Bill would strike a blow for a concept whose time has clearly now come. We need in our public life again to achieve what I would describe as a victory for common sense, and I believe this Bill would advance that.

Question put and agreed to.


That Mr. Tim Boswell, James Brokenshire, Mr. Christopher Chope, Mr. David Kidney, Bob Russell and Sir George Young present the Bill.

Mr. Tim Boswell accordingly presented the Bill.

Bill read the First time; to be read a Second time on Friday 6 March and to be printed (Bill 56).