The Malthouse Principles

An exciting new frontier in jurisprudence

It is rare, in a constitution as much-discussed as ours, for any even partially-engaged scholar to encounter a genuinely novel theory of how our institutions work. So it was very exciting to be present and involved when Kit Malthouse, Conservative MP and leading supporter of the Assisted Dying Bill (‘Leadbeater Bill’), began developing one in real time.

For readers who haven’t been following the Bill closely, I’ll lay our scene: having persuaded the Commons to pass it on the basis that the Lords would do its now-usual job of fixing all the problems with it, their lordships’ efforts to do that now risk the bill falling (because there’s a lot of work to do, only limited time in which to do it, and Private Members’ Bills must be concluded in one parliamentary session).

Malthouse and his allies thus, having got MPs to vote for the Leadbeater Bill on the basis that it would receive rigorous scrutiny from the peers, have now to persuade the peers to curtail their scrutiny lest they thwart the will of the MPs. And so, the effort is now underway to frame the fate of the Bill as an old-fashioned, 1911-style crisis of British democracy.

The problem is that this is… hard. The idea that the Commons should prevail vis-à-vis the Lords in any and all circumstances would seem, at first glance, to be a childish misunderstanding of how Parliament works. Lord Wolfson, Malthouse’s sparring partner, was advancing the same argument that I made for the Critic over the summer:

It is true that in our constitution it is held that the will of the Commons must ultimately prevail. There are, however, specific mechanisms by which this happens; the most obvious two are the Salisbury Convention, which holds that the peers will not block legislation promised in a government’s manifesto, and the Parliament Act procedure, which allows the Commons to force a bill through against the Lords’ wishes after a delay.

The very existence of these mechanisms ought to be compelling evidence that the upper house is not obliged simply to defer to the lower; were that the case, both would be otiose.

Malthouse, however, is having none of it. Not content to merely talk in general terms (or at least, not only in general terms) about the Commons’ supposed prerogatives, he’s actually spelling out how why Wolfson and I are wrong - and in the process, laying down an extremely novel theory for how we interpret rules.

Exciting stuff, and entirely in keeping with the British constitutional tradition. The Nolan Principles were famously laid down in a letter to the Times; might future first-year public law students one day learn how the Malthouse Principles were first expounded on X?

The pitfall of this, however, is that rules and conventions that arise by such means are seldom, at least at first, clearly codified. So as a service to the future, we’re going to try and isolate the Malthouse Principles. Starting with:

1) The Principle of Zero Inferences

‘Malthousian Literalism’

Orthodox (is it too early to say ‘pre-Malthousian’?) thinkers assume that if a rule is specific, the specificity is important. If a sign says that you can’t do something between particular times, or in particular conditions, it is a reasonable assumption that you can do that thing outwith those conditions. Why else would they be on the sign?

In the case of the fight in the Lords, this presents in the arguments laid out above. There are specific measures - the Salisbury Convention and the Parliament Act procedure - by which the Commons may impose its will on the Lords; both of these have conditions attached. This would strongly suggest that there is no general obligation of deference on the part of the Lords - if there were, all such specific provisions would be redundant. Malthouse disagrees (my emphasis):

“Salisbury concerns deference to a government’s programme, not PMBs. Citing it here rather makes the point. with PMBs, the constitution relies solely on the hierarchy between an elected and an unelected House and I’m genuinely alarmed that anyone thinks that hierarchy is in doubt”

Thus a Malthousian interpretation of the Salisbury Convention (that the Lords will not block government bills that were in the government’s manifesto) holds that it tells us absolutely nothing beyond its own contents; that it applies only to certain bills tells us nothing whatsoever about bills to which it doesn’t apply.

Parliamentary procedure can be somewhat arcane, so it might not be immediately obvious to the reader just how radical this theory - if anything a rare application outside fundamentalist theology of the interpretive principles of Biblical literalism - actually is. So let’s illustrate the point by applying it to another, more everyday set of rules: the opening hours of my local Tesco.

Behold

These are as simple as it gets, which makes things much easier. A conventional reading of this sign is that the shop is open between 7am and 11pm every day of the week. A lay reader might infer that the shop was closed the rest of the time. But a Malthousian literalist would point out that the sign doesn’t actually say that. It merely tells us that the shop is open between 7am and 11pm; of the other eight hours of the day, it would seem to tell us nothing at all.

We have thus isolated the first Malthouse Principle: a rule tells us only about that to which it applies, nothing about anything to which it doesn’t. But it leaves us wanting, adrift in a world of incomplete instructions. We know when shops are open, but not when (or if) they close; that we may not park here between 10am and 2pm, but not what is permissable the rest of the time; that children who aren’t this tall may not ride the rollercoaster, but not if taller children may; which bills the Lords should not impede, but not which (if any) they can.

This is a very confusing world in which to live. Fortunately, we have a second principle to guide us:

2) The Principle of Effected Generality

‘Malthousian Redundancy’

A good rule of thumb for public law is that narrow (or ‘thin’) interpretations of anything are for pedants and reactionaries; if you want to make a positive case for something - and don’t want to go the long way round and actually legislate for it - that usually requires a broad (or ‘thick’) interpretation of some rule or other. As Malthouse is not merely trying to refute Wolfson’s case but to make his own, merely establishing that the existence of specific rules tells us nothing about anything beyond them would not serve his purpose. And so we get the second principle (again, my emphasis):

“You’re asking primacy to be absolute in order to exist, but constitutional principles are hierarchical not binary. They require only that, at the point of ultimate conflict, the mandate of the Commons takes precedence. Statutory and conventional limits simply give effect to that.”

This is where Malthouse takes his opponents’ strongest argument head on. Who says the specifics of a rule must be important because otherwise they’d be redundant? What if they’re just redundant?

In a Malthousian interpretation, a specific rule - or numerous specific rules - are simply giving effect - albeit an unhelpfully confusing and partial effect - to a general rule. If the Salisbury Convention holds that the Lords should not block government bills that were promised in the government’s election manifesto, that is simply an expression of a general rule that it should not block any bills at all.

This has the happy effect of once again completing all the signs in our lives. Let us apply this new principle to our earlier example:

Behold again

Under the Principle of Zero Inferences, we could be confident that this Tesco was open between 7am and 11pm every day of the week, but had no evidence either way as to its status between 11pm and 7am. But if we apply the Principle of Effected Generality, we can surmise that this sign is simply giving effect to the underlying principle of public access to the shop, and thus that it is always open.

But having finally secured two dots, we can begin the work of joining them - and here we run into problems.

The Malthouse Paradoxes

For starters, our two principles conflict! The first avoids the unhelpful orthodox implications of a specific rule (broadly, that that which is not forbidden is permitted) by claiming that nothing can be inferred from a rule beyond its strict contents, but the second is employed to cite specific rules as evidence of a broader one - a leap that requires just such a forbidden inference, and leaves one once again having to make the unpromising case that the specifics of a rule are redundant rather than important.

Unpromising, of course, because very few people who draw up rules seem to do so on a Malthousian basis. Generally speaking, those who arrive at a shop outside its opening hours will find it shut, and people over a minimum height get to ride rollercoasters. Perhaps Malthousian interpretation is a specialised, technical discipline suited only to legislation - but it doesn’t appear to apply to law any more than anywhere else. Indeed, as any lawyer (or their accountant) will tell you, legislation is, both in terms of production and content, a field where the specifics are extremely important.

It must be the urgent task for the first generation of Malthousians to identify the necessary Third Principle - the one which adequately explains both why the first two principles don’t actually conflict, and why either of them apply in this case when they appear to apply in no other cases. Because until then, attempts to apply the technique will continue to appear to outside observers as a clumsy attempt to disguise as reasoned conclusions what are, in fact, simply un-evidenced assertions.

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P.S. Further consultation with the original text yields only more confusions. For example, in the above-quoted post Malthouse alleges that Wolfson is “asking primacy to be absolute in order to exist”, but in fact that is Malthouse’s position, as he expands in another post:

A neat rhetorical move, but constitutionally upside down. The Lords’ limits exist because the primacy of the elected House must be insulated from an unelected chamber, not because that primacy is in doubt. The settlement works to prevent precisely the scenario you imply.

This not only expounds again the Principle of Effected Generality (that specific limits on the Lords are evidence of general limits on the Lords), but argues that this must be the case because were it not, the primacy of the Commons would be “in doubt” - in other words, that “in order to exist”, said primacy must be “absolute”.