‘1(1) The Prime Minister may notify, under Article 50(2) of the Treaty on European Union, the United Kingdom’s intention to withdraw from the EU.
(2) This section has effect despite any provision made by or under the European Communities Act 1972 or any other enactment.’
The only language used whose meaning could be contested is the modal verb ‘may’. As in: ‘The Prime Minister may notify’. As it happens we know the Prime Minister will give notification before the end of March. But the law technically allows her to escape this commitment if gripped by a sudden change of heart. This is unlikely. But the modal verb ‘may’ is not always so innocuous. Section 28 of the Digital Economy Act 2010 swapped modal verbs in existing law:
‘(2) In subsection (1) for “must do all that they can to” substitute “may”…
(4) Accordingly, in the heading of the section, for “Duty” substitute “Power”.’
As this legislation lays bare, switching must to may changes a duty to a power. And executive powers are the subject of public concern, parliamentary scrutiny and judicial review. Former leader of the Conservative Party, Michael Howard, came against the sharp end of ‘may’ when he was Home Secretary. It was in a lawsuit brought by the Fire Brigades Union. At issue was section 171 of the Criminal Justice Act 1988:
‘(1) Subject to the following provisions of this section, this Act shall come into force on such day as the Secretary of State may by order made by statutory instrument appoint and different days may be appointed in pursuance of this subsection for different provisions or different purposes of the same provision.’
Specifically, the Home Secretary had been empowered to create a compensation scheme for victims of violent crime. The problem is that he did not want to. An older non-statutory scheme of ex gratia payments to victims of violent assaults was preferred by the Home Secretary, who thereby chose to interpret ‘may’ as ‘may not’. The Appellate Committee of the House of Lords disagreed. Thereby pulling the court into public policy making. As per Lord Mustill (1):
‘To avoid a vacuum in which the citizen would be left without protection against a misuse of executive powers the courts have had no option but to occupy the dead ground in a manner, and in areas of public life, which could not have been foreseen 30 years ago.’
Misuse of executive power was, in this case, non-use of executive power. But one can imagine ‘may’ creating a variety of uncertainties as to the ‘whens?’, the ‘whys?’ and the ‘how fars?’ of power. Lord Mustill points to a fundamental change in British law when he argues the case would not have been imaginable in the 1960s. The change he alludes to has been so slow and subtle as to be barely perceptible. It is by taking a long view and using the latest machine reading technology that a pattern of linguistic change emerges. It will not be a surprise to readers that the European Union (Notification of Withdrawal) Act 2017 is unusual. But then what is the usual use of language for the sovereign Parliament in the twenty-first century?
My new article in Political Quarterly shows that, besides an astonishing increase in the volume of legislation enacted, the language used increasingly relies on parts of speech that enable discretion and are adaptable to unforeseen circumstances. In terms of volume, having surveyed all 191,080 pages of legislation enacted between 1900 and 2015, a clear pattern emerges. Fewer laws are enacted of much greater length. Just 198 pages of legislation were enrolled in 1900, covering sixty-three separate Acts. In 2015, there were 2,428 pages of legislation enacted in thirty-seven Acts. The average statute was just three pages long in 1900, and sixty-six pages long in 2015. Of course, size is not everything, as the EU Act 2017 will no doubt demonstrate. But besides changes in scale, there have also been changes in language. In 2015, 18% of all sections enacted relied on the modal verb ‘may’, where in 1900 it was just 4%. And besides the verbs used, the sovereign in 2015 relied on significantly more adjectives and adverbs (62%) as compared to 1900 (30%). Adjectives such as ‘reasonable’, ‘vulnerable’ and even ‘conducive’ require interpretation. This interpretative necessity will typically favour the powerful. If, for example, an immigrant needs to prove that their deportation is not, in fact, ‘conducive to the public good’ (as per s. 3(5)(a) of the Immigration Act 1971) it will be their word against the Home Secretary’s.
And, finally, there has also been an extraordinary increase in the use of conditional conjunctions in parliamentary legislation (73% in 2015, up from 31% in 1900). Conjoining indeterminate conditions in law will also create latitude, again largely to the advantage of those able to fight for their preferred interpretations in court. The Equality Act 2010 demonstrates the potential elasticising effect of adjectives, adverbs and conditional conjunctions:
‘159(1) This section applies if a person reasonably thinks that –
(a) persons who share a protected characteristic suffer a disadvantage connected to the characteristic, or
(b) participation in an activity by persons who share a protected characteristic is disproportionately low.’
So the EU Act 2017 is highly unusual, in terms of its length, its use of language, and, of course, its content. Given one ambition of the Act is to retake sovereignty from the EU, it is timely to consider how sovereignty actually operates in the twenty-first century. What we see are not clear instructions handed down by a self-possessed sovereign, but indeterminate delegation to the government and private citizens. If Britain is to take back control, perhaps more attention is needed not only on what the sovereign may say, but how.
(1) R v Secretary of State for the Home Department ex parte Fire Brigades Union