9th November 2021
The phrase natural justice is rather grand.
When a person avers there has been a breach of natural justice then it sounds that something both bad and important has happened.
Not just a mere commonplace injustice – but a breach of natural justice.
But what does it mean?
And were former member of parliament Owen Paterson and his supporters right to claim there had been a breach of natural justice in his case?
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There is no one fixed definition of natural justice.
Traditionally it had two components.
The first – for which the Latin is nemo iudex in causa sua – is that nobody should be a judge in their own cause.
In practical terms this is the rule against bias – a decision-maker should not have actual or apparent bias in any determination that affects the rights and obligations of others.
The second – for which the Latin is audi alteram partem – is that anyone whose rights and obligations are to be determined shall be allowed to put their case – and to know the case against them.
This rule means that in an adversarial dispute between parties that both sides should be heard, or in an inquisitorial matter, that the person affected can have their say.
It is also now common to say that there is a third component of natural justice: that the tribunal or decision-maker should only make their determination or decision on the evidence put before them and applying the relevant tests.
As you can see, natural justice is about ensuring the integrity of determinations and decisions that affect the legal position of others.
And the reason it is natural is that these are the basic requirements of any determinations and decisions that affect the legal position of others.
Unless there is natural justice then the rest of the case is undermined.
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I thought the above exposition had to be made as I was looking at the report into Owen Paterson (written evidence here),where allegations of breaches of natural justice feature heavily from an early stage, almost as if it were a deliberate litigation strategy.
Perhaps I may write at more length about whether there were breaches of natural justice in the investigation in his case.
Let me know below if that would be of interest.
Bill Cash continually made references to natural justice in his Parliamentary interventions yesterday
Yes, please write further on natural justice and the Paterson case. (Anything you write is worth reading.)
Yes please! I had no idea what the term meant but noticed that it was being used rather frequently.
Your thoughts on the question of whether there were breaches of natural justice in the specific instance of the Paterson issue would be most interesting to read.
Yes. Thank you.
I suspect that claiming a breach of “natural justice” is just a PR ploy by Paterson and his supporters. It is what you do if you can’t claim that there was a breach of the rules of the tribunal that is trying you.
Taking a football analogy, they have had a red card for a foul, and variously claim that they got the ball and not the man, that the referee is biased, that VAR is biased and in the end, that you are allowed to take the man out anyway if you play on their side.
It would be helpful if you were to explore whether the “trial” was fair as well as compliant with the rules set out by parliament.
It certainly would!
Your piece on natural justice was informative for a non lawyer, thanks.
The leading proponent of the “natural justice denied” trope in the debate in Parliament yesterday appeared to be Sir Bill Cash. Even his own side seemed to think he was flogging a dead horse. His perseveration on this point was frankly embarrassing, bordering on pathological.
Many thanks for this (and all your other posts). I was interested to read the phrase ‘natural justice’ being used in the Owen Paterson case and I’d be very interested in a post from you about whether breaches occurred in this case.
I would be fascinated to hear an informed view on this matter. I have my own provisional view based on others’ analyses, but yours would be particularly welcome, given your expertise in the area and the balanced assessments I’ve seen of these matters in your blogs.
Given the attempts by a few Tory MPs in the debate yesterday to argue that Paterson was denied a just process, it would be interesting to have your views.
In yesterday’s Commons debate, Bill Cash, well-known Brexiteer and, I suspect, supporter of Owen Paterson, several times talked of the Standards Committee’s report offending against the principles of natural justice. He referenced Standing Order 150. His particular grudge against the Committee’s report on Owen Paterson was that no investigatory committee was set up. But SO150 says only that such a committee may be set up; it is not compulsory. And nowhere, as far as I can see, does SO150 refer to natural justice. The concept seems ill-defined. Bill Cash was trying to find a way of undermining the Committee’s and clutched at a very thin straw in order to do so.
Yep, I’d read that article.
David, yes please. The expression ‘natural justice’ will cease to be useful if its meaning becomes hopelessly stretched. If the expression is misused, it should be called out.
Yes please.
I would look forward to that very much.
The current complaint of some Tories is that the rules are unfair, when the real problem is that they aren’t effective. MPs have not given the Commissioner proper powers of investigation and enforcement to do a proper job. So when MPs, for example, it is all too slow and that’s unfair, that seems to be their own fault in not making it effective.
It would be amusing to see if there are any failures of natural justice in the system. We can then assess to what extent these failures arise from matters of design the MPs placed on the system to make it less effective.
As individuals we are, I think, most likely to encounter natural justice if we are part of the admin of a membership organisation like a club or society. So just like the MPs really. I drafted the member’s disciplinary system for a cycling club I have been a company director of for 20 years. The literature suggested that we were at risk of being sued over this if our system failed to meet the test of natural justice, as DAG describes. So that was my aim in drafting it. We have only used it once.
David,
I am just a simple (retired) doctor, but I have been reading your posts and articles since JoK days because the values and thought processes are so clear and relevant to important topical issues.
Please write at more length about the validity of the claims of breaches of natural justice in Owen Patterson’s case.
I must declare that I have a particular interest in natural justice and its assessment, because the complaints management processes of an NHS Trust and the General Medical Council (GMC) not only deny patients the right to respond to their assessment of a complaint, but when explicitly pressed on the matter, deny that audi alteram partem should be granted.
Given human nature, some (perhaps many) complaints are frivolous, insignificant, or vexatious, and organisations ought to have a fair way of reaching a conclusion. But, also given human nature, some decisions will be wrong, and patients ought to have a fair way of rebutting specious or mistaken arguments used to support a wrong decision.
Unless a patient is lucky enough to die or to have the wrong kidney removed, they face nearly insurmountable obstacles to obtaining justice.
I haven’t quite given up in my fight to have the NHS Trust and the GMC improve their complaints systems, so any insights you can provide into all three aspects of natural justice could be very useful.
Thanks for all the brilliant work you do!
Yes as a former lawyer and keen follower of the Tory Westmonster saga ….and your blog posts…. I would be interested in commentary on natural justice as is being invoked in the Paterson matter.
Yes please, it would be of interest to hear more. Not least because this rubs up against the grounds for judicial review.
I was reading parts of that report the other day and it seemed to me that Paterson has been given ample opportunity to make his case (“audi alteram”) at each of the two of the levels of review – the initial investigation by the Parliamentary Commissioner for Standards, and the review by the Committee on Standards. Both of those are patently independent (“nemo judex”). And the facts speak for themselves.
It was much more offensive to natural justice to have Paterson participating in, and his Conservative friends suborning, the third stage of review, in the House of Commons. “Nemo judex” indeed.
Some might say it reflects a process that is inherently political, but that seems to accept that enforcing basic standards of behaviour in public life (paid advocacy in this case, but sexual misconduct, or bullying of staff in others) is a political matter.
It is a different code, but it is absolute madness that the prime minster is the sole judge of whether any minister, himself included, has breached the Ministerial Code.
Perhaps we need some sort of judicial body – a tribunal of standards in public life – to weigh a politician’s heart against a feather. Which brings us back to judicial review.
Do the politicians really want to be put on trial when they are alleged to have breached behavioural standards, and to have to defend themselves in a public court?
A further thought – holders of public office are in many respect civil servants, so should they be subject to similar expectations of behaviour as people working in the civil service, and subject to similar disciplinary measures if they fall short?
Paul Waugh quoting Chris Bryant – “As part of our review of the Code of Conduct and its operation we have decided today we will be commissioning a senior judicial figure to advise us on possible changes to the process…” etc… your post if you do it will be interesting.
Yes. It would be interesting to see these issues of natural justice in the Owen Paterson case explored in greater detail. I look forward to it.
Regards.
I would find it helpful if you were to comment on whether there was a breach of natural justice in the handling of the Paterson case.
It seems the term ‘natural justice’ is intended to infer qualities superior to plain ‘justice’, a more holy, unsullied and more revered form. Can justice be determined as ‘un-natural’? Please explain. I enjoy reading your posts.
Natural justice is in contrast to human laws. While we can make whatever laws we like, we cannot avoid the principles of natural justice. (So we couldinstead refer to “inhuman law” or “unnatural justice” but both give entirely the wrong impression).
In reality, natural law is broader. For example, it must also encompass the principle of equality before the law (you cannot get justice by selectively enforcing the law against people you dislike).
It would appear that Owen Paterson breached the first principle of natural justice by voting for the Leadsom amendment. It is almost as if the defendant in a criminal case was allowed to sit on the jury judging his own case. But that would be ridiculous.
It certainly would be of interest especially given that Chris Bryant has claimed that Mr Paterson was subject to a “vigorous and fair process”…. Which does (in my mind at least) suggest that he thinks that natural justice has been observed in this case.
Yes please
Yes please. I echo Pete Browning’s remarks above.
An upvote from me on expansion of breached of natural justice.
As a side observation. For a government so keen on natural justice, they seem awfully enthusiastic on being able to mark their own homework.
Yes please. I would welcome your observations. I am pleased that you have provided a link to the report of the Standards Committee and I would encourage people to read it. It is a long read running to 173 pages but much of that is made up of the Independent Commissioner’s report (upon which the Committee is acting).
I was not surprised to read that Nadhim Zahawi said, when challenged, that he had not read “the detail” of the report. I suspect that the same is true of many politicians commenting on it. Although I have no evidence for the proposition I feel absolutely certain that the Prime Minister will not have read any of the detail either.
And that makes me very suspicious of claims that there has been a breach of “natural justice”. It is a fluid and rather ill defined concept and therefore perfect for Mr Paterson and his supporters to argue.
But I have read the report. I found it compelling and well argued. Mr Paterson’s primary complaint seems to be that the “evidence” of his 17 witnesses was not taken into account. And thus there must be some breach of natural justice? Any decision maker has to make a decision about what is material and relevant to the decision they have to make. The Independent Commissioner did that and the Standards Committee found no fault with her on that. Witnesses averring (couldn’t resist) that Mr Paterson was an all round good egg are not providing any evidence relating to the substance of the issues to be determined. So the Commissioner was right to refuse to entertain them and, it seems to me, there was no breach of natural justice. But would be fascinated to read your view.
It’s a yes from me
I would be interested in further comment. One of OP’s complaints was that his “character” witnesses were not heard. This would surely affect the sentence not the finding of guilt/innocence?
The extent to which OP able to present his case -and appeal against the findings – plus any scope/need for improvement welcome from your informed standpoint.
Thank you very much for yet another timely and fascinating comment re natural justice. If you have time and energy, I would indeed be interested to hear your further thoughts on the subject!
Thank you for explaining what ‘natural justice’ means to the legal mind.
One facet of this case puzzles me; an MP accused of such a breach of the rules can apparently take part in a vote of the whole house to determine his/her fate. If I’m correct, this hardly sounds like ‘natural justice’ as you define it — the ‘nemo iudex in causa sua’ bit.
So, yes please, an explanation of whether there were breaches of ‘natural justice’ here.
It would. But I’d much rather know what’s going on with the Post Office tribunal’s suggestion that legal professional privilege might be overruled. Does that mean the tribunal thinks the lawyers were complicit in criminal activity? And isn’t it quite dangerous? Will Priti Patel be tempted to use it against activist Lawyers?
I must concur with the points raised by Michael Power regarding the complaint management process in NHS Trusts and the GMC. Some decisions ARE wrong and patients do not have a fair process of rebuttal.
I would refer Michael, and all your followers who might be interested, to the website PHSOthetruestory.com and also the book of complainant experiences, published last year, “What’s the point of the Ombudsman”.
The Health and Care Bill currently going through parliament will set the responsibility of HSSIB into law. As the bill stands, HSSIB will have responsibility for investigating systemic complaints and the Ombudsman individual complaints. How is the patient expected to know which category their complaint falls into and which organisation to go to?
Then, add the fact that HSSIB and the Ombudsman are to set a protocol to avoid overlap and the further fact that HSSIB will be added to the list of organisations the Ombudsman will have power to investigate. The ‘dogs dinner’ will be in the bowl.
Natural justice is inevitably denied when the Ombudsman has unbridled power to decide:
whether to investigate in the first place
whether to uphold, partially uphold or dismiss the complaint
the eventual remedy in cases of uphold or partial uphold.
Then, when it is all over and the complainant is unhappy, their only avenue is to go to Judicial Review – a sledgehammer to crack a nut if ever there was one.
It should be no surprise that many complainants avoid the Ombudsman, seeking redress through the courts. The legal fees incurred by NHS Resolution amount to approx £4 Billion per annum with compensation settlements on top.
Keep up your fight for improvement to the NHS complaints management system Michael. You are not alone in your view.
Thanks very much for the pointers David.
It was with a sinking heart that I bookmarked PHSOthetruestory.com and bought the Kindle version of “What’s the point of the Ombudsman”.
What started as a nasty little event involving one doctor and one patient has evolved into a much bigger issue involving the safety of all patients (and healthcare professionals).
I have to take issue with Eric Yendcall’s claim (in the comment that immediately follows your’s) that laws are to protect society and process is to protect individuals. This is very neat, but …
My own experience has taught me too well to see that laws are needed to protect society, individuals and process; that process is needed to protect individuals, society, and laws; and that individuals and society have to work tirelessly and endlessly to get and then protect laws and process.
To make my case, here is one example from a top manager’s letter saying, in elegant bureaucratese, “We are so grateful for your complaint as we learnt so much. Now bu**er off and annoy the PHSO.”
The original text comes with a warning: be aware that the following two sentences may cause emotionally distressing cognitive dissonance unless you are the kind of person who finds Kafka comical.
“As a service user you are integral to the development and improvement of our service and we can only continue to improve our care by listening and talking to our patients about their experiences both positive and negative.
If you are unhappy with this, our final response to your complaint and would like to take the matter further, you can contact the Parliamentary and Health Service Ombudsman.”
There are processes (albeit severely deficient) for making complaints about an event in the NHS. But, I haven’t discovered a process for complaining about processes.
The GMC and the NHS Trust would not answer my question about what it would take for them to review and update their complaints processes.
The CQC (Care Quality Commission) who “monitor, inspect and regulate services to make sure they meet fundamental standards of quality and safety” invite comments on events and solicit concerns from employees about their employer. But, there seems currently to be no route to complain about processes that fail to protect patients. I understand from your comments that the HSSIB is intended to fill this gap. I really hope that I do not need to test the new process.
Being a centre-left conservative of the “commom-sense” variety, not being enamored of the proliferation of new “human rights, I would suggest that natural justice, except for the two principle values given by David which are enshrined in our culture and law, that so called natural justice can be nothing more than what is done is, and is seen to be, fair, both to the individual and to society as a whole. Laws are there fundamentally to protect society not so much the individual. It is fair process which protects the individual.
Searched Hansard for this phrase and, surprise surprise, the last time the phrase was used extensively in the Commons was on the 31st of October 1994. This looks like it was triggered by the cash for questions affair. It was an opposition day debate about the procedures followed by the Committee Of Privileges. The motion was as follows:
“That, in the opinion of this House, the Committee of Privileges should exercise its powers under Standing Order No. 108 so as to secure that when examining witnesses it sits in public, except when for clear and compelling reasons, especially for reasons of natural justice, it is more expedient that press and public should be excluded and all or part of the evidence heard in private.”
Worth a read. Also noticed an MP received a definition of “natural justice” from a lawyer friend which included some Latin.
Yes. An analysis of whether there are credible allegations of breaches would be very interesting.