How Language Works in Politics

The Impact of Vague Legislation on Policy

Williams, Matthew, Matthew Williams

• Publisher: Bristol University Press
• Year: 2018
• eBook ISBN: 9781529200232
• Edition: 1
• Topic: Politics & International Relations
• Subtopic: Political Process
• Index: Politics & International Relations

There were more colons used in legislation in 2015 than there were words enacted in 1900. Using analysis from machine readings of all legislation enacted between 1900 and 2015, this book discusses the social impact of increasingly elastic legislative language on the contemporary workings of the British constitution.

The hot-button debates of our time — from immigration to European integration, to the creeping power of judges — have, at their core, battles over what policy instructions are authoritative.

The book encourages readers to connect the dots of British statecraft, and to understand how, exactly, public demands are transferred into laws that are then implemented with greater and lesser degrees of success. Crucially, it shows that vague legislation has a tremendous impact on policy delivery, disproportionately affecting the weakest, in areas including immigration, homelessness and anti-discrimination.

Part One: Language and politics in the UK

ONE

Introduction: how language works in politics

there is one thing more, about which the Society has been most sollicitous; and that is, the manner of their Discourse: which, unless they had been very watchful … had been soon eaten out, by the luxury and redundance of speech. The ill effects of this superfluity of talking, have already overwhelm’d most other Arts and Professions; insomuch, that when I consider the means of happy living, and the causes of their corruption, I can hardly forbear recanting what I said before; and concluding, that eloquence ought to be banish’d out of all civil Societies, as a thing fatal to Peace and good Manners.

Sprat 1722 [1667]: 1111

Bishop Sprat, just quoted, laid praise on the young Royal Society for its plain use of language. He went so far as to say that ‘eloquence ought to be banish’d out of all civil Societies’. By eloquence, he meant language that sounds intelligent but fails to communicate any clear messages. The problem with eloquence is that only the individuals using the language fully understand what has been said. It is an exclusive form of communication. It is communication that works for those with the power and prestige to avoid searching analysis of what they have actually said. Put baldly, eloquence is language that does not work as a general medium of communication. It works instead as a means of bamboozling an audience, or intimidating them into silent approval.

This book asks as its principal question: how does language work in politics? In addition, and by extension, what impact does language have on the effectiveness of policy? The particular language interrogated in these pages is parliamentary legislation. This language is not prone to eloquence in the manner described by Sprat, but legislation can and does contain parts of speech that similarly fail to communicate clear meaning. The principal answers offered in these pages are: first, that legislative language has undergone major changes in form and function since 1900; and, second, that it increasingly takes a form that does not work at communicating clear policy instructions, with the implication of this second point being that indeterminate language in legislation undermines effective policy delivery. The book offers the first computer-assisted analysis of all 41.5 million words of parliamentary legislation enacted from 1900 to 2015. Findings show that changes in the language of legislation have had significant policy and social impacts. Particular findings include the observation that conjunctions in immigration law make the government more likely to lose court battles. It will also be shown that loose adjectives such as ‘vulnerable’ in homelessness law have led to thousands of individuals being denied housing assistance. There is even evidence in these pages that high numbers of adjectives in a national constitution are correlated with poor economic performance, as well as corruption. Other chapters look at how indeterminacy can be attenuated with, among other things, human rights law. These laws provide a sort of policy dictionary capable of inserting meaning into otherwise meaningless legislation. However, even these instruments have not filled the gaps in Britain’s legislative language. This language of the sovereign Parliament is therefore a variable that affects policy outcomes, and the effects of language are, in part, independent of the forces that created it. When meaning cannot be carried by legislation, it does not strictly work as a form of discourse. Instead, it creates partial meaning and waits to be adapted by individuals responding to events.

From logic to analogic

Fans of crisp radio quality have welcomed ‘the digital switchover’. Simple binary strings of data replaced rich-textured, yet distortion-prone, analogue radio. However, the language of politics has been making the opposite move. In the past, legislation was dominated by simple ‘if A, then B’ logical propositions. However, the language of legislation increasingly requires more reasoning by analogy to be meaningful. Analogic reasoning is the construction of meaning through comparison of real-world cases. A rule constructed by analogic reasoning is achieved in a process familiar to common law judges: of ensuring that like cases are treated alike. The problem is that analogic reasoning is, like its radio counterpart, prone to distortion. The language used to allow for the comparison of cases will typically be indeterminate. It is language that is both incomplete and subject to qualification. Unlike ‘If A, then B’ binary connections, it is instructions framed in the manner of: ‘if A, in accordance with B-like factors, then C pertains, provided that D or E are satisfied’. Legislation increasingly does not, therefore, offer a determinate rule of law. This has implications for the implementation of policy, as well as the accountability of policy executives. It is these effects of indeterminate legislative language that are the principal subjects of this book.

However, what politics underlie indeterminate law? Specific propositions are detailed in the following paragraphs, as well as in later chapters. As an introductory summary, the politics of indeterminacy are a function of demands for and supplies of public policies moving out of kilter, the causes of which were at first historical, then ideological. With the end of the Second World War, Britain enjoyed moral and global superiority, but material enfeeblement. Domestic expectations for lavish public services were aroused by the Beveridge Report and subsequent state expansions into health care and social insurance. Yet, the British government lurched from crisis to crisis when attempting to manage transnational economic forces, without sufficient means.

In this context, indeterminate law offered both intrinsic and functional utilities. Intrinsically, indeterminate law is politically cheaper, in the sense of requiring less detailed ex ante deliberation, and admitting less ex post accountability. The meaning of indeterminate words can be fixed on a later date by ministers without incessant resort to Parliament for approval. Hence, functionally, indeterminate law appears to be better suited to squaring the circles of having so many demands with seriously constrained and uncertain material and political supplies. In addition, crucially, indeterminacy was facilitated by the Westminster Model. Britain’s Parliament, with its unimpeachable sovereignty, is stewarded in its sovereign acts by governments that can utilise whips, standing orders and dissolution to cajole. In any country with procedural and substantive constraints on producing legislation, such degrees of indeterminacy would be significantly more difficult to extract from a legislature.

As mentioned, indeterminacy is a function of both demand and supply. It is not simply the case that the British public do not know what they want, or what is possible to achieve. Put technically, goal ambiguity in public policy is not a sufficient explanation for indeterminate legal language (Rainey and Jung 2015). Also at work has been the deliberate withholding of clarity for ideological reasons. In particular, Thatcherite disapproval of rationalist philosophies, and the lauding of pragmatism, spurred even greater resort to indeterminate expressions of sovereign will in the 1980s. Furthermore, it was not only Thatcherite politicians who disapproved of shared consciousness, expressed in plainly worded agreements. Unions, civic organisations, political parties of various hue and even religions became, after the 1960s, inured to individualist axioms. Coordinated interpretations of reality were replaced by authoritarian interpretations, and individual expressionism. Put differently, all perspectives are deemed valuable, but only those backed by material and political power will get anywhere.

At root, the politics of indeterminacy are more led by structure than agency, in that while individuals have at times chosen to be unclear, this was largely in response to the perceived requirements of context. Hence, the changing demography of Parliament is likely to have had an impact, with turnover to neophyte MPs and the increased diversity of members. However, for the most part, lawmakers are bounded in their rationality. It seems unlikely that they were acting malevolently or irrationally. Instead, politicians are bounded, in particular, by time, scarce resources, media interest, electoral cycles and globalisation. So, it is not that politicians were unclear as to what should be done, but that they were more unclear on how, and with what resources. Hence, indeterminacy derives more from supply-side constraints than demand-side ambivalence. This explains the significant inter-party consistency in moves towards indeterminacy, albeit that there are some interesting patterns revealed in Chapter Three, with Conservatives more inclined to craft indeterminate powers and Labour preferring indeterminate duties.

At root, sovereignty depends on a degree of clarity. Absolute power cannot work absolutely if it is only partially communicated. Legal texts need, therefore, to guide interpretations of context, subtext and intertextuality. That legal texts have increasingly failed to so guide is fitting with Britain’s penchants for pragmatic and ideologically unburdened government. However, as will be argued and demonstrated, widespread indeterminacy in law creates ineffective and anti-pragmatic governance. Besides the effects on policy, there are wider implications for democratic theory as Parliament has increasingly failed to make its voice heard. Sovereignty has partly returned to its pre-democratic default of executive dominance, broad unaccountable discretion and heightened secrecy. The social consequences are similarly alarming. Might is right as the weakest lose disproportionately in battles over the meanings of words. It is little wonder that the legal profession has grown enormously in size, servicing, for the most part, those citizens with the material means to assert their preferred interpretations of indeterminate law.

Before proceeding further, an illustration is needed. The following excerpt from section 189 of the Housing Act 1996 exemplifies modern legislative language. This extract describes the concept of priority in homelessness law:

(1) The following have a priority need for accommodation –

(a) a pregnant woman or a person with whom she resides or might reasonably be expected to reside;

(b) a person with whom dependent children reside or might reasonably be expected to reside;

(c) a person who is vulnerable as a result of old age, mental illness or handicap or physical disability or other special reason, or with whom such a person resides or might reasonably be expected to reside;

(d) a person who is homeless or threatened with homelessness as a result of an emergency such as flood, fire or other disaster.

(2) The Secretary of State may by order –

(a) specify further descriptions of persons as having a priority need for accommodation, and (b) amend or repeal any part of subsection (1).

The meaning of these subsections is indeterminate. First, adverbs and adjectives pepper the text. The Secretary of State, being the subject of these sentences, must determine their meaning. Words such as ‘reasonably’, ‘vulnerable’ and ‘special’ have little meaning until considered relative to a yardstick. No yardstick is provided in the legislation itself, and so must therefore be, in part, asserted by the Secretary of State and, in part, extrapolated from context. Second, with regard to the object of these sentences (a housing applicant), conditional conjunctions keep the meaning of priority pliable. The conjunction ‘or’, for instance, is used 11 times. ‘Or’ therefore accounts for nearly 10% of all words in the excerpt, and it allows the text to be adapted to varied circumstances, and individuals. Specifically, ‘or’ conjoins disparate conditions, such as ‘physical disability or other special reason’. Third, the use of auxiliary modal verbs enables broad interpretations, with ‘might’ and ‘may’ being used instead of ‘will’ or ‘shall’. Finally, enabling verbs in these subsections allow the Secretary of State (and National Assembly for Wales) to ‘amend or repeal any part’ of the subsection.

So, what has Parliament actually said here? The underlying philosophy is reasonably clear: housing allocations are to be prioritised to those most in need. However, specific details on how this philosophy is to be executed have been omitted. This language contrasts to the clarity of a precursor law from 1900, the Housing of the Working Classes Act:

1. Where any council, other than a rural district council, have adopted Part Three of the Housing of the Working Classes Act, 1890 (in this Act referred to as ‘the principal Act’), they may, for supplying the needs of their district, establish or acquire lodging houses for the working classes under that Part outside their district.

2. Adoption of Part Three of the Act by rural district council …

(2) In giving or withholding their consent under this section, the county council shall have regard –

(a) to the area for which it is proposed to adopt the said Part; and

(b) to the necessity for accommodation for the housing of the working classes in that area; and

(c) to the probability of such accommodation being provided without the adoption of the said Part; and

(d) to the liability which will be incurred by the rates, and to the question whether it is, under all the circumstances, prudent for the district council to adopt the said Part.

This language – as with all language – still depends on context and individual discretion to be meaningful. However, there is significantly less latitude granted to policy executives. A narrow range of possible interpretations has been established by Parliament. Put simply, it establishes more obligation than discretion. This can be inferred from the language. There are fewer adjectives and adverbs in the 1900 Act, with ‘prudent’ a lone counter-example.2 Other potentially indeterminate parts of speech are couched as nouns, with ‘the probability’ and ‘the liability’. These nouns are marginally more objective than would be their adjectival equivalents: ‘probable’ and ‘liable’. The differences between ‘probable’ and ‘probability’ may be marginal, but are arguably significant. The former suggests a hunch, whereas the latter denotes a more precise evaluation. There are also fewer conjunctions in the 1900 Act. Furthermore, the whole section is rooted to the determinate modal verb ‘shall’, rather than ‘may’. If we boil it down to something akin to a line of computer code it reads: ‘the county council shall have regard … to the area … the necessity … the probability … and the liability’. This compares starkly to the 1986 Act and its adaptable encoding:

The following have a priority need … a pregnant woman or … or might … a person who is vulnerable … or … or … or … or … or might … a person who is homeless or … or … The Secretary of State may … specify … amend or repeal.

What we see in the 1996 Act is language that requires significant post-enactment interpretation to be meaningful. This interpretation will be dominated by the government and its agents. Especial importance will be placed on how powerful policy executives analyse changeable circumstances. The 1900 Act, by contrast, offers greater clarity. Its language would also have required interpretation, but the range of plausible interpretations is narrower. However, as will be demonstrated in Chapter Two, language in legislation increasingly relies on indeterminate parts of speech. In the wo...

Table of contents

• Cover
• Title Page
• Copyright
• Dedication
• Contents
• List of figures and tables
• Preface
• Part One: Language and politics in the UK
• Part Two: The social impact of Parliament’s use of language
• Part Three: Fixing the code
• Appendix
• References