Author: David Allen Green

The crown at a constitutional crossroads – my Prospect column this month

5th May 2021

My column at Prospect magazine this month is about the monarchy.

Please click here to read it – and leave any comments below.

In particular, I would be interested in any views on my broad point that – regardless of the succession – the monarchy is likely to have to change anyway, as the current model was very much a response to the specific (and challenging) conditions of the mid-twentieth century.

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The British Museum, looted artefacts, and the law

 4th May 2021

This post is prompted by an outstanding and thought-provoking book about museums.

The book is The Whole Picture: The colonial story of the art in our museums & why we need to talk about it by Alice Procter (Amazon page here – but do order from your local bookseller if you can).

Two thoughts that the book provoked for me were about the British Museum.

This post sets out those two thoughts and where those thoughts then led me.

*

The first thought was a recollection of this eloquent and plausible 2004 justification by the museum’s then director Neil MacGregor of the museum’s position relating to controversial items in its collection. 

The passage in that piece that struck me at the time and has stayed with me was this about the founding of the museum back in 1753 (and I have broken up the paragraphs for flow):

‘To ensure that the collection would be held for the benefit of citizens, and not the purposes of the crown, Parliament hit upon a solution of extraordinary ingenuity and brilliance.

‘They borrowed from private family law the notion of the trust. The decision that the museum would be run not as a department of state, but by trustees had – and still has – crucial implications.

‘Trustee ownership confers duties rather than rights. Trustees must derive no benefit for themselves, but hold the collection exclusively for the advantage of the beneficiaries.

‘The collection cannot be sold off.

‘The museum was set firmly outside the commercial realm, a position epitomised by the principle of free admission.

‘Even more astonishingly, it was in large measure removed from the political realm.

‘Trustees are not allowed by law merely to follow government orders: they have to act as they judge best in the interest of beneficiaries, including, crucially, future and unborn beneficiaries.

‘Who are the beneficiaries for whom the trustees hold the collection?

‘Startlingly, they are not just the citizens of Britain.

‘The British Museum was from the beginning a trust where the objects would be held “for the use of learned and studious men [in 1753 they were mostly men], both native and foreign”.

‘In his will, Sloane had declared his desire that his collection should be preserved “for the improvement, knowledge and information of all persons”.

‘The rest of the world has rights to use and study the collection on the same footing as British citizens.’

*

I have often thought about that passage.

It is convincing as far as it goes – once an item is part of the collection it is safeguarded and retained for the benefit of all.

But.

There was something missing.

*

Here we come to the second thought provoked by the book.

This is a legal principle – known to lawyers and also normal people – which is known in its Latin form nemo dat quod non habet.

In plain language: a person cannot have a greater property right (‘title’) in a thing than the person who provides them with the thing.

So if I provide you with a thing – but I do not own it to begin with – then you will not own it either.

Applied to the British Museum, it seemed to me that it was all very well the British Museum boasting of how well an item in its collection will be looked after under the terms of its trust – but that was no answer if the original acquisition was unsound.

Nemo dat quod non habet – or garbage in, garbage out in legalese.

*

So with these two thoughts I then wondered: what is the position in respect of an artefact in the British Museum if the acquisition was tainted?

That, for example, the person providing the item had stolen it?

And this query led me to the British Museum Act 1963 and the 2005 case of the Attorney General vs the British Museum.

In essence, once an item is part of the British Museum collection, the 1963 Act provides only only a narrow basis for the trustees to ‘dispose’ of the items.

This narrow basis is primarily set out in section 5 of the 1963 Act.

(There is also an exception for transferring an item to another museum – and there is an exception for the return of human remains.)

*

So unless an item in the collection is within the scope of section 5 of the Act then, in effect, the trustees of the British Museum cannot at law give back the item – regardless of the circumstances of its acquisition.

What this meant in practice was illustrated in the 2005 case.

The museum had purchased after the second world war four items that has been looted by the Nazis from their owner.

The issue before the court was whether there was implicit exception to the terms of the British Museum trust in respect of when there would be a moral obligation to return the items.

The judge – the very head of the court of chancery and equity – held that the trustees did not have the power to do this, even if they wanted to do so (which they plainly did).

Any application of the principle of nemo dat quod non habet appears to have been precluded by operation of the Limitation Acts.

The judge did indicate in passing that if title in the items had not passed on acquisition then the items would not have (technically) formed part of the collection of the first place and thereby the terms of the trust and section 5 would not apply.

But it would presumably be out of time for title in respect of a 1945 acquisition to be contested sixty years later.

Happily, there was a (fascinating) recommendation by the (wonderfully named) Spoliation Advisory Panel that the heirs to the person whose art had been looted be compensated by an ex gratia payment.

And since the 2005 case, there is now the Holocaust (Return of Cultural Objects) Act 2009 that provides a statutory basis for the return of items looted by the Nazis.

*

For items looted by the Nazis, therefore, the legal position is now that the loot can be returned – even if it is part of the collection.

But what of items looted by others at other times and other places – why should the unfairness caused by only one manner of theft be addressed?

To its credit (to an extent) the British Museum is open that this is an issue.

On its press page, it has links to explanations as to its positions in respect of what it calls ‘contested items’.

(It also has a page setting out how it has settled the Nazi loot claims.)

The impression that the British Museum is no doubt seeking to promote with these pages is that it is taking the issues seriously and is sensitive to grievances.

But.

The attempt to give this impression is not convincing.

This is partly because the leadership of the museum is still wedded to the notion that the terms of the trust gives it some elevated status that means the grubby question of acquisition is not relevant.

In 2018, the current chair of the British Museum trustees wrote the Guardian in almost identical terms to those employed by MacGregor in 2005:

‘In what was one of the great acts of the Enlightenment, in 1753 parliament established the British Museum as a trust, the first of its kind in the world, which was to be run independently of politics and of parliament. This autonomy has been central to its scholarship and public purpose for the past 265 years. […]

‘Trustees today have three broad responsibilities: to conserve and enhance the collections for ever; to generate new knowledge, especially by supporting the kind of research that is only possible in a large encyclopaedic museum; and to make the collections accessible to the whole world. They work with colleagues across the UK and around the world to share knowledge and objects from their collections as widely as possible. But they don’t see the objects for which they are responsible as negotiating chips in a political debate.’

But again, this go-to ‘trust’ defence says nothing to the issue of how the items were acquired.

*

In 2019 one trustee resigned, and she gave as one of her reasons (which is broken up for flow):

‘In November 2018, a French report commissioned by President Macron recommended the full restitution of looted African artworks.

‘It burst open the debate over the repatriation of cultural artefacts. Museums, state officials, journalists and public intellectuals in various countries have stepped up to the discussion.

‘The British Museum, born and bred in empire and colonial practice, is coming under scrutiny. And yet it hardly speaks.

‘It is in a unique position to lead a conversation about the relationship of South to North, about common ground and human legacies and the bonds of history.

‘Its task should be to help us all to imagine a better world, and – along the way – to demonstrate the usefulness of museums.

‘This would go some way towards making the case for keeping its collection in London.

‘But its credibility would depend on the museum taking a clear position as an ally of coming generations.’

*

It is correct that the provisions of the 1963 Act prevent the trustees from giving away or giving back items in its collection.

And the operation of the Limitation Act means that, as the chair of the spoliation panel said in one report, the position of the museum is legally impregnable. 

Nemo dat quod non habet may well be a principle of law – but it is subject to statutory bars and exclusions.

But.

As with the items looted by the Nazis, where there is a will there is a way.

Legislation may be required – similar to the 2009 legislation for holocaust items.

And even without legislation, the position of the museum – but-for-the-legislation – could be made more clear – as it was in the 2005 case above.

But instead the impression one gains from reading around the subject is that the museum hides behind terms of the 1963 Act – that it is an excuse not for thinking seriously about the issue.

For even if the Limitation Acts rob the principle of nemo dat quod non habet from having practical legal consequences, it still has the full force of a moral imperative.

Instead of rhapsodising about the heady genius of the 1753 trust, the leadership of the museum should be conscious that nothing about the terms of the trust goes to how the items were acquired.

Of course, specific ‘contested’ items will raise specific concerns and objections.

And there is the possibility that items could leave the collection only to be destroyed or lost to the black market – though this risk should not be over-stated, still less assumed.

But as a general rule, the British Museum and other museums should accept morally (if not legally) that if an item was acquired when those from whom the item was taken did not give permission then, as a matter of principle, the item should be returned.

And if the law does not permit this, then the museum should be unafraid to aver that the law should be changed.

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A short post about some upcoming topics on this blog

3rd May 2021

Today – a bank holiday – has been taken up with dealing with an (ahem) irksome IT problem which, I am happy to now say, has been resolved.

The consequence of that problem is that it is now too late to post on the topic I was intending to post on today.

But instead of not posting at all (and I do like posting once a day if I can), I thought regular readers would like to know what is coming up – and also what I am seeking to move away from blogging about.

Upcoming are:

 – a couple of posts on the legal side of the ‘culture wars’ – premised on the basis of a previous post Suppose the government wanted a culture war and nobody came? – approaching relevant politic-cultural topics not as a combatant but as a commentator

 – a series of posts on the gaps in accountability and transparency in the conduct of the state of the United Kingdom – in respect of the Ombudsman system, the corononial system and public procurement;

 – more posts on issues relating to Black Lives Matter – including a follow-up to the Smiley Culture post and posts on other deaths in custody and whether those infamous ‘lessons’ are ever ‘learned’; and

 – the completion of my series on the Begum case (here and here), which shows the extent of sheer executive power in respect of the position of the individual.

I will also, from time to time, deal with something odd in the news – like Handforth parish council or Colin the Caterpillar – for no better reason than I think it would be amusing and instructive to look at it from a law and policy perspective.

And, of course, I will deal with any more earnest news developments if I can think of anything useful to say.

But.

I am beginning to think that there is little new to say about certain enduring subjects such as the (lack of) honesty of politicians and the limits of the constitution to address the (dire) state of our politics.

The subject remains crucially important – but averring that there are constitutional problems caused by political dishonesty and hyper-partisanship that need practically resolving is repetitive to write and, not doubt, to read.

Unless there is something fresh to say on the (absence of) practical accountability of the prime minister and related topics, I can only offer what I have said before as a given.

Many thanks to you for reading my blog – and an additional thanks to those of you who support it.

Why public inquiries are often an admission that the other elements of the State have failed

2nd May 2021

It is a familiar routine.

Something horrible has happened and somebody is to blame, and so the demand is made that there is a public inquiry.

There is nothing wrong with this demand.

Indeed, this blog yesterday averred that the the inquiry into the Post Office scandal should be placed on a formal basis, with powers to compel evidence.

Similarly, all sensible people want an inquiry started as soon as possible into the government’s handling of the coronavirus pandemic.

There are also many other subjects that would benefit from the focus and dedication of a public inquiry.

But.

Many public inquiries, and most demands for public inquiries, are also implicit admissions of failure.

The admission of failure is that the other elements of the state – primarily the executive, the legislature, and the judiciary – have failed in their roles.

That there has been insufficient control and transparency within the government, and/or that there has been insufficient scrutiny by or accountability to parliament, and/or a sense of general injustice lingering after attempts to litigate specific matters in the courts.

Of course, there are certain discrete issues where inquiries are appropriate and do work which could not have been done otherwise – for example, the Cullen inquiries.

But if the other elements of the state had performed their proper constitutional functions, key issues of transparency and accountability – that are the stuff of many inquiries, and of most demands for them – could be addressed more directly and immediately by elected politicians.

This, I know, is wishful thinking and no doubt the counsel of constitutional perfection – yet each demand for an inquiry is, like the ringing of a bell, often an indication of wider state failure.

Politicians are comforted and protected by this habit of thought – as they can say and nod solemnly that there should be (or may be) an inquiry whenever something goes wrong.

Lessons will be given and then learned by having an inquiry – but we will never learn the lesson that perhaps we should be catching problems at an earlier stage of the political process.

How can we shift exercises in transparency and accountability back to earlier in the political process?

To be dealt with parliamentarians, holding the executive to proper account?

There is no easy and obvious answer.

Perhaps we should have an inquiry…

*****

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The Post Office scandal: as the problem was about non-disclosure, then logically an inquiry with powers to compel evidence is required

1st May 2021

The Post Office scandal is being described fairly as one of the most widespread miscarriages of justice in legal history.

One of the fundamental problems that led to this scandal was non-disclosure.

The managers (and presumably the lawyers) knew information about the reliability of their Horizon software but did not disclose it.

Had that information been disclosed then (depending on the timing of the disclosure) prosecutions would not have taken place, or defendants would have been found not guilty, or convictions could have been more speedily appealed.

And so, given this fundamental problem of non-disclosure, it is remarkable that the government’s response is an inquiry that cannot compel the disclosure of evidence.

Just think about it.

The government’s non-statutory inquiry has its own web page and terms of reference.

And if you read through the documents on the page, what is said is fine as far as it goes.

But it does not go far enough.

For example, one of the terms of reference is expressly in respect of obtaining information:

‘[to b]uild upon the findings of Mr Justice Fraser, by obtaining all available relevant evidence from Post Office Ltd, Fujitsu and BEIS to establish a clear account of the implementation and failings of Horizon over its lifecycle’.

Yet, as where there is blame there will be claims, the various entities mentioned will have reason to not disclose anything which could lead to civil or even criminal liability.

They will have engaged lawyers to advise them on their obligations in respect of the disclosure of information for the inquiry – and that advice would give them legal cover to refusals to share information.

And what goes for documentary evidence goes to witness evidence too, as this tweeter well observes:

What we therefore face is one problem that was caused by non-disclosure being followed by another problem caused by a different type of non-disclosure.

There is no good reason why the inquiry into the Post Office scandal does not have statutory powers to compel evidence.

And, given that non-disclosure was at the heart of the miscarriages of justice, every good reason why it should.

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How, in practice, can a prime minister be prevented from lying to the House of Commons?

30th April 2021

The relentless and casual dishonesty of the current prime minister Boris Johnson may still have political or parliamentary consequences.

But just as a thought-exercise, say, would it be a good idea to put the prime minister under oath (or affirmation) at PMQs?

Then, in theory, the prime minister’s mind would concentrate wonderfully, as he would be under some sort of punitive sanction in the event he knowingly said something false.

In this way, the position of the prime minister would be akin to a witness in a legal case, who is under pain of perjury in the event that they do not say the truth.

It is the sort of notion that can appeal to the mind’s eye.

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But.

It would not work easily in practice.

For example: who would determine whether the prime minister is saying something untrue or not?

If the house of commons as a whole, they can do this by motion already – although this will not happen in practice to a prime minister with an overall majority.

And, if not the house of commons as whole, who?

The speaker? A committee? An official?

How would they go about assessing whether there had been a falsehood or not?

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And then there is the deeper – almost categorical – problem.

The prime minister is not providing evidence in answer to parliamentary questions.

This by itself differentiates the prime minister from a witness in legal proceedings.

A prime minster may be asked to give an account of the government’s position – an explanation, rather than a list of facts.

Indeed, any statements of fact are merely incidental to this giving of an account.

A prime minister can thereby provide a full answer to a parliamentary question and not state any fact at all.

Accordingly, the witness-perjury model is not an exact fit.

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But how do you stop a prime minister – or any other minister – from stating untruths at the dispatch box?

Thee polite constitutional fiction is that honorable and right honorable members do not lie in parliament – and that is why they cannot (other than by a parliamentary motion) be accused of lying. 

But this ‘good chaps’ theory is being flouted – brazenly so.

We therefor have a problem without an easy solution.

Putting the prime minister under oath may not work – but what would?

How can – in practice – there be a check and balance to a prime minister lying in the commons – if mere conventions do not matter any more?

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Some words of comfort to regular readers

29th April 2021

Regular readers of this blog will be aware that things are not well with the constitution of the United Kingdom, or with law and policy generally.

Regular readers will be braced for bad news – even without this blog’s frequent injunction of ‘brace brace’.

But.

There are, believe it or not, some grounds for optimism.

The grand Cummings-Johnson project of pushing prime ministerial power as far as to could go is close to collapsing.

Cummings has gone, and Johnson has few remaining internal allies in government.

Indeed, Johnson seems quite isolated even within the government.

Other parts of the constitution are still twitching with indications of life.

For example: the house of lords, as with the Overseas Operations Bill, has ensured that certain proposed unpleasant provisions will not be enacted – resulting in a minister departing office.

And although few will have high hopes of various inquiries and investigations into what has and has not happened in Downing Street, at least those inquiries are happening and that they are, to a certain extent, beyond ministerial control.

The illiberal 2016 project does not – necessarily – have easy purchase in 2021.

Constitutionalism may still yet reassert itself.

To mimic Johnson – constitutionalists need not be doomsters and gloomsters.

One day – perhaps soon – the constitution of the United Kingdom will still be there, and Boris Johnson will not be.

Even if it is a close run thing.

 

 

 

Genuine accountability, mock accountability, and the lies of Boris Johnson

28th April 2021

Today’s prime minister’s questions was extraordinary.

On the two issues of the moment the prime minister Boris Johnson was relentlessly unconvincing and evasive.

In respect of the alleged ‘dead pile high’ quote, it is plausible and – according to the media – well-sourced.

In respect of who paid for the Downing Street decorations, the verbal dodges to the simple query of who initially paid for an invoice were painful to watch.

But.

Not many will care.

A significant number of the population will, no doubt, sympathise with the sentiment which the prime minister expressed about lockdown, and more than a few will agree with the actual wording.

Similarly, the question of the refurbishment invoice will not matter to those who do not mind who paid as long as it was not the taxpayer.

Perhaps there will be hard evidence – either compelling on-the-record testimony or even an audio recording – to prove Johnson as a liar.

Yet even then the only surprise would be that he has been so starkly caught out.

The sad, inescapable truth is that Johnson conducts himself as if he is free from accountability.

And the reason he is able to do this is simple: it is because he can.

*

Let us look at the available mechanisms of accountability.

Johnson and his government will avoid, as long as possible, any formal inquiry as to their conduct in respect of the coronavirus pandemic.

The prospect of an electoral commission investigation is difficult to get excited about, given their impotence in respect of the lack of compliance during the referendum.

And Johnson just freely lies to parliament.

The examples – all of which are documented and verifiable – just accumulate.

Almost nobody cares.

We have more internal ‘inquiries’ – which may or may not report, or even be heard from again.

Few people keep track.

And as Fintan O’Toole observes, Johnson is not now even bothering to lie in prose:

‘It’s not when Boris Johnson is lying that you have to have to worry. If he’s lying, that just means he’s still breathing. No, the real danger sign is the gibbering. It’s what he does when he can’t be bothered to think up a lie.’

*

Against this pervasive mendacity, those organs of the state that are able to check and balance the executive are being undermined or removed: the independent civil service, the diplomatic corps, the independent judiciary, and so on.

All because – at last – the United Kingdom now has a prime minister willing – and shameless enough – to exploit to the full the (ahem) opportunities that the prime minister has with a parliamentary majority.

Eventually, of course, Johnson’s hubris will meet nemesis – just as he himself eventually came to meet the costs of the Downing Street refurbishment.

And here we are lucky – for if we had a political leader who was as serious in retaining power as, say, Vladimir Putin, we would have few constraints to look to for checking and balancing power.

Johnson is what we get, however, when politicians stop believing (or affecting to believe in) the ‘good chaps’ theory of the constitution.

Tuttery is insufficient – and the tutting could be three times as loud, and it would still make no difference.

*

There are indications that political and media supporters of Johnson are moving against him.

If so, there could be a mild political crisis and that this may be enough to dislodge Johnson from office.

But this would not be through any application of any constitutional check or the operation of any constitutional balance.

For all of Johnson’s sheer and endless casual dishonesty, there has been nothing the constitution could do to stop him.

Even if he was proven to have lied to parliament, that would mean nothing politically if he still had support of the majority of members of parliament.

*

And on a final note.

Usually at this point of this sort of exposition, someone will aver that all this shows the need for a written (that is, codified) constitution.

The universal panacea for every political ill.

But.

A written constitution is as likely to entrench executive power than to limit it.

The problem is not the type of constitution.

The problem is instead a related one: the failure of constituionalism.

And while Johnson’s brazen disregard for constitutional norms is tolerated, there is no point changing the rules of the game, for he would disregard those rules too.

The problem is a political one: and the solution is thereby to show that this conduct means he loses power.

*****

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*****

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Why do prime ministers so often forget Hubris meets Nemesis? And why we should be glad that they do forget.

27th April 2021

The current prime minister Boris Johnson assures us that the public will not be interested in some current scandal.

He may well be right.

Johnson, like almost all those who become prime minister, is an exceptional politician – and one does not climb to the top of the greasy pole if one slips easily.

But – again like many former prime ministers – this political durability and steadfastness is converting into a sense of invincibility and infallibility.

Because a senior politician can survive some setbacks, they come to believe that they will survive all setbacks – that they are immune.

Margaret Thatcher in about 1988 was like this – introducing the poll tax to chants of ‘ten more years’ from delegates at party conference. 

Tony Blair also was like this about the time of the Iraq invasion.

But it never lasts.

Even prime ministers such as Thatcher and Blair, both of whom won three general elections, were unwillingly replaced.

Why is there always this hubris before nemesis?

Why is there this apparent sense that it will turn out different this time?

Part of the answer, of course, lies in politics and personalities – and thereby it is a quality of those who gain and retain political power.

But part of it must also be – at least in the United Kingdom – how insulated a prime minister is from actual accountability.

For a prime minister with a sizeable majority has few restraints on their political freedom of movement.

They can personally change policy and impose it on cabinet; they can force through almost any legislation; they can conduct foreign policy; and they can appoint and sack at will.

Perhaps we should not be surprised that some prime ministers go mad with power, but that they do not go madder.

But such hubris will always meet its nemesis – and what practically brings a prime minister down will often be their arrogance of being untouchable.

And so perhaps the politicians to fear most are not the hubristic ones – for they are merely creating the means of their own political destruction – but the ones that are acutely aware of the fragile nature of power and never forget it.

For they are the scary ones.

Why the Post Office case will not go away – and the wider implications of the case

26th April 2021

Few appeal cases keep on being news a few days after the judgment has been handed down.

The parties, of course, will keep an interest as they decide what, if anything, to do next; lawyers will consider any legal or procedural point of wide import; specialists and experts will take due notice of any significant development.

But general news value of an appeal decision diminishes rapidly, and soon it will be as old news as a football result.

But the Post Office appeal case has been different.

If anything, many people – this blogger included – are taking more of an interest in what happened.

In part this is because of the detailed judgments – and so some relentless investigative journalism.

The more one looks at the case the more worrying the case becomes.

All sorts of professionals – not just the senior managers – appear to have been caught up in the attempt to oppose the exposure of what happened.

And as the eminent blogger on law and legal ethics Richard Moorhead asks over at his blog: where were the lawyers?

Reading carefully this detailed Private Eye piece on the scandal, there are many moments where anyone with an interest in litigation will gasp. 

The easy way of addressing the question of what were the lawyers doing is to aver that lawyers are not decision-makers, they only advise and so on.

But that old stand-by of an excuse does not quite work with issues, such as disclosure of documents and duties to the court, where the decision-making is done by lawyers rather than clients.

Something very wrong happened, and for a long period, and because of the decisions made of many people.

And the wider question becomes: where else are such commercial-legal scandals and cover-ups where there has not been a success in bringing it to light?

Perhaps not ones where there have been a mass of prosecutions, but where there has been co-ordinated attempts to prevent transparency, scrutiny and accountability.

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