affiliated to the International Association of Constitutional Law
Along with moaning about the weather, queuing is generally regarded as part and parcel of life in Britain. Next month’s Olympics look set to provide ample opportunities for both in London. At least there are now fewer bendy buses: my experience of the No 25 was that their multiple exists/entrances caused a breakdown of social conventions about whose turn it was to get on first, even among those of us who believe that queuing is fair.
Queuing is a fact of life in various public law settings. Queues can be a highly potent element in public and political accountability systems, performing roles as triggers and yardsticks. Recently, unacceptable waiting times at the UK Border control points at Heathrow led to questions in Parliament, extensive discussion in the news media, tweets from Joan Collins to the Home Secretary, and hopefully some action in the beleaguered Border Agency. Queuing also provides an accountability measure for access to NHS accident and emergency treatment: a couple of weeks ago, the King’s Fund reported a 26 per cent increase in the number of patients – that’s over 250,000 –waiting more than four hours in A&E (though the good news was that the NHS met its target to discharge 95 per cent of patients within four hours).
Queuing can also be valuable in other ways. I have heard it said that a benefit of the antiquated division system in the UK Parliament (where MPs and peers vote by leaving the chamber and queue to move through the “ayes” and “noes” lobbies) is preferable to electronic voting at seats because it provides opportunities for legislators to have quick words with each other, helpful in the day-to-day conduct of political business.
The question that is troubling me is: in what circumstances is it acceptable for someone to jump a queue in a public law context? I have in mind situations where a public authority has an effective monopoly on the provision of a service or the right to regulate. Border control, issuing passports, and the determination of planning permission are examples. (In Britain, there are many situations where a relatively wealthy and well-informed person may choose to avoid a queue by seeking an alternative to government service provision in the market place – for instance, private health care instead of the NHS or arbitration instead of the courts – but that is a rather different situation to the one I have in mind).
As with so much in life, money (for those who have it) provides one set of possible options for queue mitigation.
A person queuing could try to flash the cash: to pay a public official to be allowed to move forward, out of one’s normal turn. In some jurisdictions, a payment to officials to have a decision made, or one’s case move forward in a court docket, is unexceptional. By most international comparisons, payments of this sort are thankfully uncommon in Britain. A tactic of offering a public law decision-maker a wodge of £20 notes in a brown envelop or an invitation to an exclusive golf-club followed by a slap-up lunch and a trip to a lap dancing club, if detected, will bring the Bribery Act 2010 into play, with criminal consequences. So, to state the obvious, corrupt practices are not acceptable ways of jumping a queue.
Payments to avoid or reduce queuing time in some situations are, however, lawful. Well-heeled travellers with business or first class tickets are welcomed at a “fast track” queue for UK Border control at several major British airports. The even-better-heeled may shell out for a “concierge service”, with an escort from the plane to a private and presumably very queue-less lounge for processing by a UK Border officer. These practices feel wrong to me (and I say that as a frequent flyer who sometimes pays over the odds to turn left when I get on a plane). Even if I were sure that airlines and concierge services paid a handsome fee to the UK Border Agency to recoup the costs of officials, plus more, it would still feel wrong.
In chapter 1 of his new book, The Moral Limits of Markets: What Money Can’t Buy (which I’m currently reading), Michael Sandel seems to strike a phlegmatic tone. The demise of the queue for those who are willing and able to pay, he writes, “at airports and amusements parks, at Shakespeare festivals and congressional hearings, in call centers and doctors’ offices, on freeways and in national parks – are recent developments, scarcely imaginable three decades ago. The demise of the queue in these domains may seem a quaint concern”.
As public lawyers, I think we should apply particular kinds of distinctions to queues, and take a principled approach to when queue jumping can and cannot legitimately take place. To my mind, buying a right to speedier decision-making by officers of the state at the UK Border at an airport is not the same as buying a Fastrack ticket for Alton Towers. Two features of the border control scenario should make us reluctant to allow preferential treatment to be bought and sold. One is that border control is a core activity of the state. The second is that it entangles (and I put it no higher than that) human rights: the corralling of passengers is a denial of liberty for governmental purposes, even if it does not register on the ECHR article 5 Richter scale; and the right to return to one’s country is also, for many passengers, in issue. The first come, first served fairness principle that underpins queuing ought to be main consideration, though other factors such as the desirability of showing special concern for frail, elderly or disabled people might also be included in a new one-size-fits-all egalitarian regime. So I’ve come to the conclusion that supermodels, sports stars, pop singers I haven’t heard of and some I have, captains of industry and the odd university vice-chancellor should queue shoulder to shoulder with everyone else. Speedier and more private decisions should not be bought and sold by the state.
This approach – of deprecating paid-for queue jumping for core state activities affecting human rights and fundamental freedoms – is not confined to the UK Border control. I’d argue that the three-tier passport renewal service (standard £77, fast track £112 and premium £129) also falls foul of the rule I’m advocating. With their newfound freedoms under the Localism Act 2011, it should not surprise us if paid-for queue jumping crops up in an increasingly wide range of situations in regulation and service provision by local authorities; and the need for other cash-strapped public authorities to “do more, with less” will see the phenomenon of paid-for queue jumping mushroom. What next: VIP lanes in polling stations on election days?
As the Prime Minister tells us, there are some situations in which “we are all in this together”.
Andrew Le Sueur is co-convenor of the UK Constitutional Law Group.