The trahison des clercs
As we read of more and more cases of miscarriages of justice, blunders by the police and prosecutors, astonishing conclusions by enquiries and failures of the democratic process of all kinds, we must wonder whether we have advanced much beyond the world that so provoked Voltaire. Curiously, while condemning the arbitrariness of French justice (letter to d’Argental, 8 May 1734), he expected in England to be able to enjoy “du plus grand avantage que je connaisse, et du plus beau droit de l’humanité, qui est de ne dépendre que des lois et non du caprice des hommes.” It is doubtful if this was true in 1734, even if England was more progressive than ancien régime France. We may have abolished the most barbaric judicial penalties and the UK remains largely free from corruption, but beyond that, have our institutions of redress really progressed? Are we now free from the whims of the individuals who are in a position to decide whether to right wrongs? Is the frequency with which they arrive at a just outcome higher today than in the eighteenth century?
Of course many cases before these tribunals don’t have a single “right” answer. I’m not talking about the fact that people may genuinely take different views about where the just solution lies in the many complex disputes they have to consider. What interests me is why, when a matter isn’t open to such ambiguity, these processes can end up reaching a conclusion that is manifestly unjust, illogical, irrational or plain wrong – a decision often called “Wednesbury unreasonable”, by reference to a 1948 case, one – as Lord Diplock more colourfully expressed it in a later case (GCHQ, 1985) – “so outrageous in its defiance of logic or accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at it.”
Many of us, brought up with an innate sense of fairness and a belief in the application of Voltairean rationality, find that the miscarriage of justice often makes a far deeper wound than the original wrong. Civilisation depends on effective redress mechanisms and their breakdown has disproportionate implications. We are fired up to escalate and expose such injustices, and find our distress compounded when the appeals to higher authority get nowhere. We should perhaps pause to examine just why and how these things happen.
Sometimes of course it’s just down to the lack of intelligence by those entrusted with the judicial role. Everyone will have come across examples of this, particularly in large, civil service-type organisations: I suspect the fear that many right-wing politicians have of “big government” is hardened by these every-day examples of brute stupidity. Several of my personal examples come from dealings with the Financial Ombudsman Service, where some of the caseworkers are simply not very bright (you don’t get Jonathan Sumption for £23,000 a year, and the service is very busy – over a million leaflets are distributed every year to complaining customers, and a fair proportion of these end up with the FOS). In one of my cases the junior adjudicator didn’t understand the arithmetic behind the complaint: in itself that would be insignificant – what was not insignificant was the way in which the whole organisation joined forces to defend the error, performing intellectual gymnastics to try to avoid admitting a minor instance of incompetence. My final summary of the episode for the FOS board ran to nearly 10,000 words.
John Kay, in a recent article in the Financial Times (“A story can be more useful than maths”, 27 February 2013), pointed out that courts of law are more interested in convincing narratives than in statistical evidence. It’s an important insight, with implications in many fields including my own area, art history, where the acceptance of an attribution is far easier when a compelling story can be assembled, explaining the commissioning and subsequent history of a picture, than when one simply appeals to scientific evidence. Kay’s article deserves a longer analysis, but I cite it here because it goes some way to explaining one type of cognitive error in which people with different types of intellect can encounter mutual incomprehension. Daniel Kahneman, in Thinking, fast and slow (2011), has written an exhaustive analysis and classification of these errors.
But the phenomenon which I find increasingly at the root of these miscarriages is the willingness of the intelligent official to reach the decision he wants by narrowing his terms of reference. (This is rather more dangerous than the phenomenon we are all familiar with, where an official to whom we complain lazily writes back simply repeating the policy about which we complained.) A classic example is where forensic evidence is accepted without challenge just because it is “scientific”. Independent complaints commissioners are particularly adept at sticking to their “service standard” review remit, so that where the service level has affected the decision they refuse to act. I cannot discuss specific cases without going into far greater detail, but there are many other examples of this “tick the box” approach to compliance. Sometimes tribunals are genuinely constrained by ultra vires principles, but often there is a dogged refusal to think these issues through.
I have come across a number of particularly insidious examples where an official sees, or thinks he sees, the broader picture, and chooses to make an irrational decision rather than pursue a chain whose direction he doesn’t like. A professional body refuses to hear a complaint because the legislation has a so-called ouster clause that prevents the matter being questioned in a court – even though the investigation is not a court for that purpose. A false document is held not to amount to evidence of dishonesty: had enquiry been made, the inexorable result would be a penalty the authority considered disproportionate. I could add numerous instances, but you will recognise the pattern already. Because these bodies didn’t put the result quite as I have done, they were able to persuade themselves that they were acting properly. They did so not dishonestly, but in bad faith (at least in my view – remember a blog is not due process). The distinction is important (even if there is no difference to the victim): in bad faith it is yourself you deceive.
These are all examples of the whim of individuals trumping the rule of law. Call it the caprice des hommes if you like; or if you prefer it to sound more conspiratorial, the trahison des clercs.
We believe we can guard against whim by multiplying the number of decision takers, but the arithmetic isn’t that simple. Every physicist learns that 100 violins are only 10 times louder than a single instrument. Knowledge may expand with a team, but wisdom does not (at least not in the same proportion). There are obvious reasons for this in hierarchical structures, but although there can be advantages in having a panel of judges, many tribunals, and most committees and boards, are ineffective ways of avoiding arbitrary decisions because of the way in which they are assembled: a dominant individual builds a support team of people whose networking skills are typically greater than their independence of mind (otherwise they wouldn’t have been selected). Paradoxically, such structures are even more prone to delusions of fairness than the single judge.
Nor does the problem disappear as we move up the food chain, from junior adjudicators to planning committee to county court to high court etc., although the intellectual skills normally improve. Whim and high intelligence are not incompatible.
The more we try to guard against this by erecting further controls on decision making, the deeper this type of behaviour can become embedded. The threat of judicial review, or even the exposure of decision-taking processes through Freedom of Information requests, often force officials to cover their tracks and erect more and more intellectual arguments to justify the position they want to take. Whether it is the tax code, accounting standards or the FSA Handbook, we should by now recognise that rules don’t always lead to better behaviour.
What does? It’s not a complete solution, but while we have freedom of speech (one area where Voltaire was absolutely right) we must continue to be vigilant and draw as much attention as possible each time redress is denied by irrationality. Let us tirelessly continue Voltaire’s crusade: “Écrasez l’infâme!”
21 March 2013: By one of those curious coincidences, a few days after the above was written, Lord Sumption himself delivered an interesting judgement in the Supreme Court, Hayes v Willoughby (http://www.supremecourt.gov.uk/decided-cases/docs/UKSC_2012_0010_Judgment.pdf). It is of course well worth reading in full, particularly as it seeks to explain a new distinction between rationality and reasonableness. I confess however that I agree with Lord Reed, dissenting, in finding the distinction too subtle.