Category: Legislation and Law-Making

A cabinet free to all – a side note on the “Non Dom” issue in UK politics

11th April 2022

How could it be allowed, I was asked, for someone with a Green Card and who was married to a Non Dom to be a member of the cabinet?

The answer I gave was that – in principle – anyone can sit in the cabinet and be a minister.

This is one of the examples of the flexibility of the constitution of the United Kingdom and its reliance on conventions.

There are some relevant limits – there is a limit on how many paid ministers there can be.

But this does not limit unpaid ministers – or which ministers are invited to attend cabinet.

And there are limits on how many ministers can be paid at each grade:

There is no requirement as to place of birth or nationality.

The former prime minister Andrew Bonar Law was from New Brunswick, which was in Canada by the time he was prime minister.

A more recent prime minister was born in the United States.

(Yes, him.)

And we have had at least two other prime ministers – including the Duke of Wellington – who were born outside the United Kingdom by reason of being born in Ireland before the Act of Union.

There is also no requirement as to usual residence.

In the second world war we had ministers such as Macmillan resident abroad.

And the South African politician Jan Smuts and other Empire ministers were members of a so-called imperial war cabinet in London in the first world war.

Nobody gave any of this a second thought.

Strictly speaking, you do not even have to be a member of parliament (or a lord) to be a minister.

Indeed, technically, ministers are not members of a parliament between the dissolution of an old one and the start of a new one.

(And so the ‘well actually’ answer to the quiz question as who was the last prime minister not to sit in the house of commons is neither Douglas Home nor Salisbury but Johnson in 2019.)

Under Thatcher, the then Solicitor-General for Scotland Peter Fraser once carried on in his office after losing his parliamentary seat in 1987 for two years before becoming a peer, as there were no other Scottish Tory MPs to take the job.

Of course, there is a practical problem of accountability – a minister cannot stand at the front bench unless he or she is a member of either house of parliament.

But in both the commons and the lords it is not unusual to have one minister answering on behalf of another – so not even this practical problem is insurmountable.

By convention cabinet ministers also are or are appointed as privy councillors – but this is not a limitation, as many non-ministers are appointed to be ‘Right Honourable‘.

The ‘Right Honourable” title is sometimes even given to politicians as a consolation prize for not joining the cabinet.

So, in answer to the query mentioned at the start of the post: there is nothing formal stopping anyone being appointed a minister, even to the cabinet.

Even someone who were a Non Dom themselves.

Perhaps there should be formal restrictions: but as it happens, there are not.

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What is SLAPP?

22nd March 2022

Sometimes I give blogposts the wrong titles.

Yesterday, the post here had the title: Is there a SLAPP problem in the English courts?

This is a good – and urgent – question.

The problem was that the post did not answer the question, and instead it set out some preliminary views about SLAPP – that is an acronym for ‘strategic litigation against public participation’.

What I should have done before setting out these preliminary views was to explain SLAPP – and I am sorry I did not do so.

Some people even told me on Twitter that they had to google ‘SLAPP’ so as to understand my post.

This post seeks to remedy the deficiency of yesterday’s post.

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SLAPP is a term to describe the misuse of the litigation process for the purpose of minimising or eliminating public and media scrutiny.

It is an American term and it appears to date from 1996.

There have been, in turn, various anti-SLAPP laws in America.

The reason why SLAPP is now seen as an issue here is a spate of illiberal legal claims brought (or threatened) in the High Court in London which appear to have the ulterior motive of minimising or eliminating public and media scrutiny – in particular scrutiny of various oligarchs and foreign corporations.

The United Kingdom government has just announced that it is considering introducing anti-SLAPP laws here and it has put out the a call for evidence on SLAPP.

The government describes SLAPP as follows:

“The term SLAPPs is commonly used to describe activity that aims to discourage public criticism through an improper use of the legal system. SLAPPs have two key features:

• They target acts of public participation. Public participation can include academic research, journalism and whistle-blowing activity concerned with matters of societal importance, such as illicit finance or corruption.

• They aim to prevent information in the public interest from being published. This can be by threatening or bringing proceedings which often feature excessive claims.”

Another word for this phenomenon is the splendid portmanteau ‘lawfare’.

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Now that I have set out a defintion of the term, do have another look at yesterday’s post – which I have now re-titled.

You will see that I aver that although SLAPP is a pejorative and contested term, it is also a useful term as long as you bear its limitations in mind.

In further posts on this blog I am going to look at some recent cases that have been described as SLAPP cases so as to answer the following questions:

1. Is there really a SLAPP problem in the English courts?

2. If so, what is the nature of that problem?

3. And if it is a problem, is it a problem capable of being solved?

I think it is important to ground any consideration of reform in an understanding of actual examples, else one can end up with a mismatch between proposals and problems.

For such a mismatch is what happened, in my view, with the campaign which led to the Defamation Act 2013, where the eventual legislation that was passed would have done little or nothing in respect of the various poster-cases on which the campaign relied.

(With my old Jack of Kent blog I was part of the early part of that campaign for libel reform, though I had and have concerns about the law that was finally enacted.)

Whether there is an actual SLAPP problem and, if so, whether it can be solved is a key issue for our legal system and how that system impacts on public debate.

I would like this blog – with its posts and excellent commenters – to be part of informing the debate on that issue.

I am sorry my post yesterday was running before it was walking – and I hope this further post has put that right.

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SLAPP and English courts – some preliminary issues

21st March 2022

SLAPP – strategic litigation against public participation – is a new-ish name for an age-old problem.

Here is L. Ron Hubbard in 1955 advocating law suits against those who were using Scientology materials without authorisation:

“The purpose of the suit is to harass and discourage rather than to win. The law can be used very easily to harass, and enough harassment on somebody who is simply on the thin edge anyway, well knowing that he is not authorized, will generally be sufficient to cause his professional decease. If possible, of course, ruin him utterly”

(The Scientologist: a Manual on the Dissemination of Material, page 157)

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SLAPP is, of course, a pejorative term (as this blog recently averred) – but, for want of a better term, is the best name we have got for a certain thing.

The problem with SLAPP being a pejorative term is that, just as one person’s terrorist can be another person’s freedom fighter, one person’s SLAPP case is another person’s legitimate attempt to defend their reputation and/or privacy rights.

Few if any claimants will say expressly that their case is a SLAPP case – not many are as brazen as L. Ron Hubbard.

And it is possible that what one side considers to be a SLAPP case will genuinely not be considered to be a SLAPP case by the other side.

That said, SLAPP as a term has two useful qualities.

First, it is not limited to any one area of law – for example defamation – and so it implicitly recognises that various areas of law can be (mis)used – not only defamation but also misuse of private information, data protection, confidentiality, intellectual property rights, and so on.

Second, it indicates that certain decisions are being made strategically – or at least, tactically (though TLASS is a less handy acronym) – about the purpose to which law is being used.

Another problem, however, with SLAPP as a term is that its American origins may mislead people into thinking all anti-SLAPP legislation is the same.

In fact, much of what constitutes anti-SLAPP reform in the United States is already part of English law, including the ready availability of costs sanctions and early opportunities for meritless cases to be struck out.

There is no single anti-SLAPP reform that fits all jurisdictions.

So as long as the strengths and weaknesses of SLAPP as a term are borne in mind, it is the best description we have got of a certain thing.

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But – what is that thing?

Well.

One thing it usually is not about is the law or procedural rules being broken by lawyers or their clients.

In almost all SLAPP cases, the lawyers are using the laws and court procedures available to them: the issue is the ulterior purpose to which those laws and court procedures is being put.

This is why, in my view, attempts to ‘name and shame’ the lawyers involved are misconceived.

(Though, for completeness, I know and deal with many of those who are involved.)

The lawyers that have so far been publicly named are but a sub-set of the lawyers competent and willing to take on such claims.

And – frankly – you do not need parliamentary privilege to ‘name and shame’ the lawyers: all you need to do is look at the case reports to see who they are, and at their own websites to see how they promote their practices.

I happen to be a media defence lawyer (among other things) – acting for journalists, campaigners, and politicians – and I chose not to act for claimants in these sort of cases, but that is entirely a personal choice.

In my experience of seeing dozens of threatening letters (of varying quality), almost all the threats are within the scope of law and practice as it stands.

And if a threatening letter did not come from one firm, I can imagine pretty much the same sort of letter coming from a dozen other firms.

The problem is with the law and practice, and so – if you sincerely want to solve the problem – that is where the solution will be.

Although therapeutic, ‘naming and shaming’ the lawyers involved is a cul-de-sac.

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Another thing to note is that, in England, SLAPP is not just about costs – even if the amounts involved can be eye-watering.

Yes, London claimant lawyers are expensive – too expensive.

But: American lawyers are expensive too, sometimes even more expensive than English lawyers.

Media lawyers in other jurisdictions are also high-charging and highly paid.

Yet, it is in England that certain cases are brought – and threatened.

This is because the problem with SLAPP cases in London is not just the costs, but how those costs can be easily weaponised as part of of a legal threat.

London litigation is often not a game of thrones, but a game of costs.

The dynamics of many cases will come down to costs, and how costs consequences can be inflicted and deflected.

And how this happens comes down to the structure and practice of the relevant law.

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But perhaps the biggest difficulty about discussing SLAPP in England is that the discussion can sometimes seem abstract.

SLAPP is a bad thing, and nice people are against bad things.

Let’s boo at SLAPP!

But the challenge is to make any SLAPP reform work practically – to make a difference in actual cases.

There are a number of ways law and practice can be misused, and so any reform needs to be set against actual cases to see if the reform would make any practical difference.

One thing I recall from the campaign which led to the Defamation Act 2013 is that the key case for mobilising support – the misconceived and illiberal claim brought by the British Chiropractic Association against science writer Simon Singh – turned out not to be directly relevant to the legislation that was then passed.

Little in that Act would stop another such case being brought again – and indeed it was the court’s own decision in that case, and not any legislation, that has stopped further similar claims.

There can be a practical disconnect between cases that attract public concerns and the reforms then promoted for dealing with such concerns.

That is why this blog is going to look over the next few days at a ‘data-set’ of SLAPP cases, to see what the actual problems are and to see what, if any, solutions can be put in place to stop similar cases being threatened and brought.

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In the meantime, I would suggest anyone interested in SLAPP, and what practical reforms can be implemented to prevent such cases, look at the following:-

– the transcript of the oral evidence at the foreign affairs select committee on the use of strategic lawsuits against public participation (or watch it here);

– the excellent and comprehensive work by Susan Coughtrie and the Foreign Policy Centre on SLAPPS – including this policy paper;

– this House of Commons library briefing on SLAPP; and

– the UK government’s recent call for evidence on SLAPP.

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Can the period of the current Ombudsman be lawfully extended?

18th March 2022

One of the areas of focus of this blog is what I call the ‘accountability gap’ – that is the lack of genuine accountability in the arrangements of United Kingdom government and public administration.

And one element of this accountability gap is the problem of the ‘Ombudsman’ – the Parliamentary Commissioner for Public Administration.

This is a strange and fairly obscure office and it exists to deal with what is – from a legal perspective – a strange and elusive thing: ‘maladministration’.

(My post on the obscurity of the office is here and my post on the vague concept of maladministration is here.)

It is also an office that is not without its critics – as this link demonstrates.

Part of the problem with the Ombudsman seems to me to be structural – the relevant legislation provides a strange mix of strong powers and a weak sense of purpose.

But some of the problem may be operational – that the PHSO (as it is now known) does not operate as well as it could do, even with its curious legal regime.

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The current Ombudsman has just had his term of office extended – and, as you can imagine, this has not been received well by the critics of the Ombudsman.

The extension is for a further period of two years, which will take his term in office to 2024.

One may doubt whether such an extension is wise – and the recent extension of office of the now-departing Metropolitan police commissioner comes to mind as an unwise extension of office.

I have been, however, asked to look at whether the extension is unlawful.

Here we need to look at section 1 of the Parliamentary Commissioner Act 1967:

We also need to look at last week’s press release:

Curiously there seems no trace on the website of the Cabinet Office of the confirmation, or on the website of the parliamentary committee of such a recommendation – but let us assume that the confirmation and recommendation both actually happened.

And by way of background, the current Ombudsman was appointed in April 2017, and was widely reported that the original appointment was for a five-year term (which must be correct, else there would be no need for an extension).

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So, looking at section 1, what can we ascertain?

Section 1(2A) provides that the Ombudsman is shall hold office until the end of the period for which he or she is appointed.

On the face of it, that would mean the current Ombudsman’s term comes to an end next month, for that was the position of the original appointment.

Section 1(3B) provides that a person cannot be ‘re-appointed’ as Ombudsman.

So if the extension was a re-appointment that would be unlawful under section 1(3B).

And section 1(2B) provides that the period of appointment shall not be no more than seven years in total.

That provision means that if the current Ombudsman served beyond April 2024 then that would certainly be unlawful.

What is not clear on the face of the legislation is what the legal position is if an office holder has an extension beyond his or her original appointment, as long as that extension does not mean more than seven years in total are served.

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In practical terms, it could be argued that by extending the appointment before it expired, then the appointment is simply continuing.

It can also be argued that section 1(2A) does not say or necessarily imply that that an Ombudsman cannot hold office after the period for which he or she is appointed – section 1(2A) only says that they must hold the office until the end of the appointment.

On balance, I think that although the position is not clear, the extension does not look to be unlawful.

Nothing in section 1 expressly prohibits such an extension.

Had section 1(2B) said that the period of appointment shall never be longer than the duration of the original appointment, then such an extension would be unlawful.

But section 1(2B) does not say that – it instead expressly states that the duration should not exceed seven years.

And because there is this express long-stop, I do not think a court would easily imply into the Act an even shorter long-stop as a matter of law.

I also do not think the court would see the extension as a ‘re-appointment’, as it is a continuation of an existing appointment and not the start of a fresh term of office.

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Public law is full of these situations where the legal position is not clear – and it may be that my analysis above is incorrect – and you are welcome to put forward your view below.

But the fact that the extension is (probably) legal does not necessarily mean that it is a good decision.

What may be a legal thing to do is not always the right thing to do.

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The United Kingdom government is rushing through anti-oligarch legislation without proper scrutiny

7th March 2022

Imagine a serious piece of proposed legislation, for serious times.

Imagine that legislation is substantial – a Bill of 64 pages.

Imagine that legislation is complex – 55 clauses and 5 schedules (the latter comprising 11 parts).

Imagine that legislation is coercive – creating at least 12 new criminal offences.

Imagine that legislation confers wide executive powers – with 20 “may by regulations” provisions for Secretary of State to legislate by fiat, including in respect of individual rights.

And now…

…imagine that proposed legislation being forced through all its stages in the House of Commons in a single day.

What could possibly go wrong?

Well.

We will now find out, for this is what is happening today with the Economic Crime (Transparency and Enforcement) Bill.

This significant legislation is being rushed through with almost no opportunity for adequate scrutiny by Members of Parliament – just so the government can be seen be doing something about Oligarchs.

This is not how fundamental legislation should be put in place.

 

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Public interest litigation against public bodies

16th February 2022

There are two ways by which those with public power will act lawfully.

The first is self-restraint: that ministers and officials will act lawfully because, in essence, they want to do so.

The second is by enforcement: that ministers and officials who act unlawfully are open to challenge in the courts and can also face action from the police or other regulatory bodies.

So: if not the first, then the second.

But hopefully the first, which is better for everyone, apart from public law litigators.

The problem is what happens when ministers and officials do not care for self-restraint?

Then we have to go to the second stage, all too quickly.

But then there are new problems.

Who decides, for example, which cases to litigate?

How are those challenges to be financed?

And what if there is nobody in a position to litigate a case?

What is there – ultimately – to stop lawless behaviour by those with public power?

These questions are important – and they are not easy to answer.

One solution is to have non-governmental organisations litigate these cases, in the public interest.

But this brings new problems.

Pressure groups can have their own agendas – and some see litigation as an aid to fundraising and campaigning, rather than a thing in itself.

(When I was legal adviser to a pressure group party to a case that went all the way to the supreme court, I was careful to ensure that there was not a whiff of any ulterior motive and that the focus – correctly – was on the litigation.)

Too many pressure groups litigating elides the distinctions between politics and law.

And some may be tempted to blame the pressure groups.

But.

That is to partly see the problem the wrong way round.

The primary reason why so many non-governmental organisations are litigating is because of problems with those with public power.

The pressure groups in court are (at least) as much a consequence of poor quality policy-making and rule-making by ministers and officials.

In essence: better quality policy and rule-making will mean fewer subsequent legal challenges by pesky pressure groups.

But that would mean ministers and officials facing up to their own failings.

And it so much more easy to blame the pressure groups instead.

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The strange constitutional situation if Johnson lingers on as Prime Minister

4th February 2022

The constitution of the United Kingdom is a strange thing.

As a matter of constitutional theory, it hands a Prime Minister with a substantive majority two powerful weapons: the royal prerogative (and associated patronage, such as appointing and sacking ministers) and the doctrine of parliamentary supremacy.

On the paper page of the textbook, there is little that would check or balance a determined Prime Minister unwilling to play along with conventions.

But.

The constitution of the United Kingdom also spits out Prime Ministers between general elections.

Indeed, since 1982 – forty years – more Prime Ministers have lost office between general elections than because of general elections.

Thatcher (1990), Blair (2007), Cameron (2016) and May (2019) all lost office between general elections, while only Major (1997) and Brown (2010) have lost office at a general election.

And this week just gone, it looked as if the current Prime Minister would also lose office – even though he won a thumping majority in 2019.

There is no doubt that he is politically weak – and the spate of recent Downing Street resignations do not signify anything positive for him.

And it is obvious that a significant number of his own parliamentary party do not want him as Prime Minister.

It would seem less than a majority of the Commons wants him to personally continue as Prime Minister.

Yet: is he constitutionally weak?

Can he hold on, if he is really determined to do so?

The obvious means of his departure would be a no confidence vote by the parliamentary Conservative party.

An alternative means would be – say as with Thatcher – that he realises he has little or no ministerial support and resigns – though this unlikely given the cabinet are perhaps the only ones who will support him.

If there is not a confidence vote by the parliamentary Conservative party – or if there is one, and he wins – then we would be in interesting constitutional territory.

The nearest examples I can think of are the minority administrations of Callaghan (in the period before 1979), Major (in the period up to 1997) and May (2017-2019) – where there were Prime Ministers in office but not with power.

Perhaps like Callaghan and Major he will linger on, even though there was not a majority in the Commons in favour of him personally remaining (as opposed to a majority in the parliamentary Conservative party).

Perhaps there could then be a parliamentary vote of no confidence – but it is difficult to see Conservative MPs risking a general election just to get rid of Johnson as leader.

So: it is not clear what will happen if he lingers on.

What do you think?

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A “nice” parliament?

1st February 2022

Today the speaker of the House of Commons said he would like parliament to be “nice”.

For this, and for insights generally, listen to this clip to the end:

Like courts, parliament is a place for conflict and for those conflicts to be resolved.

And, again like courts, parliament has developed conventions and an etiquette for smoothing the jagged edges of that conflict.

“The honourable member” is the parliamentary equivalent of “my learned friend”.

Courts – at least civil courts – have also rules on when a person can be accused of dishonesty.

It is not an allegation that can be made by a lawyer lightly.

But it is an allegation that can, if there is evidence, be made in certain circumstances.

In parliament an allegation of dishonesty cannot be made – at least in debate.

An allegation of dishonesty has instead to be made in a substantive motion – see the commentary here.

As the historian Robert Saunders avers, this rule against accusing in debate other members of parliament of dishonesty was part of a wider understanding:

So we now have the ridiculous situation where nothing practical can be done to stop the Prime Minister – or any other member of parliament – from being dishonest…

…and if another member of parliament – grandstanding or otherwise) points this out in debate, it is that other member of parliament that is thrown out of the house of commons.

One can understand how the rules of the house of commons came to end up like this.

But that does not make the rules seem any less daft.

The solution, however, is not “niceness”.

Politeness, yes, and decorum and respect – just as courts (usually) have politeness and decorum.

But courts – while usually calm and polite and respectful – are not “nice”.

Courts can be places of horrible and raw human drama and conflict, where often difficult decisions have to be made that will, in turn, often ruin the lives of the parties involved.

To regard them as “nice” is to confuse form with substance.

A parliament also has to deal with often difficult decisions that will ruin – or even end – the lives of people at home and abroad, sometimes millions of people.

A parliament is a place of conflict and high tension – with immense consequences for real people.

As such, like a court, it is sensible to take off the rough edges of conduct and vocabulary, so as to take the heat and aggression out of exchanges.

But the underlying tensions will still be there – and these tensions need to be recognised if they are to be resolved.

Those tensions cannot be cured by “niceness” – and, indeed, a refusal to recognise those tensions risks turning those tensions into contradictions.

And that will not help anybody.

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That Downing Street Christmas Party – the Law, the Policy, and the Politics

8th December 2021

The Downing Street Christmas party story is a good example of an incident that can be looked at in a legal, a policy and a political way.

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The Law

From a legal perspective, it may well be that the infamous party last year at 10 Downing Street was not a breach of the law – at least for the organisers.

The experienced criminal barrister and legal commentator Matthew Scott has provided a detailed legal analysis of the situation over at his blog.

For the reasons he gives it looks as if organising the party may not have been a criminal offence – as long as it took place in the non-residential part of the building.

Less clear – oddly – is the position of the party-goers, and the only person who has read and considered every single coronavirus regulation – the barrister Adam Wagner – avers that those who attended the party may still face the possibility of liability.

Yes, this is rather counter-intuitive – but the law here was and is a mess.

And when the law is a mess, such counter-intuitive situations will happen.

But as Wagner says elsewhere, there is legal unfairness as well as inconsistency:

So, although the metropolitan police are (rightly) considering whether to investigate the Downing Street party as a breach of the law, it looks as if any prosecutions or fines may be unlikely – unless there are admissions.

This is more by luck than judgement, as one suspects nobody in Downing Street knew or cared about the legal position at the time.

They would have partied anyway, as they see legal rules as being for other people.

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Policy

Now we turn to the non-legal rules that applied at the time.

For even if organising the party was not (technically) illegal, it still may have been in breach of the guidance at the time.

And what was the policy at the time?

Helpfully, here is an official government tweet from the very day before the party, replying to a query:

That tweet in turn links to the guidance of the time.

That guidance expressly provided:

So, even if (unwittingly) the organisation of the party was not a breach of the criminal law at the time, there is no wiggle-room about it being a breach of the applicable guidance.

In essence: even if not a breach of the law, it was a breach of the rules.

But again, one suspects nobody in Downing Street knew or cared about the policy position at the time.

They would have partied anyway, as they see non-legal rules as also being for other people.

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Politics

When there is a leak, other than when the disclosure is contemporaneous, its timing and content will usually tell you more about the enemies of the subject of the leak than anything else.

Leaks are often a matter of timing – and of perceived vulnerability.

And so somebody somewhere decided this was the right time to disclose to the news the video of the mock press conference.

The fuller video here should also be watched.

Given internal security at Downing Street, the disclosure of such material indicates that the prime minister has some well-placed and well-connected political enemies.

As to the content of the video, there is nothing wrong with such questions and answers being rehearsed – and there is nothing wrong with it being done with an appropriate sense of humour and with candour about not knowing the answers.

That is how such rehearsals are usually done.

What is telling and discomforting is the general levity not of the spokesperson trying to work out a line-to-take – but the levity of all the other political operatives involved.

It was a huge joke.

There was a realisation that laws and rules had been broken, but they were just to laugh about.

Bantz.

As it happens the mock session was not a rehearsal for an imminent press conference, but (presumably) one of a sequence of sessions in preparation for the the televised press conferences that were then envisaged as commencing the next month.

And so we have a press conference room, at huge expense, which was never to be used:

(And only yesterday this blog was bemoaning the proliferating use of United Kingdom flags for political broadcast purposes.)

There are two obvious broad political consequences of this situation.

First, the currency of official denials is now not so much devalued, but worthless:

And second, there will now be no perceived legitimacy whatsoever in the government direction and guidance on public health generally and coronavirus in particular.

Politics – in a democracy – is about words, authority, and power.

And this government could not have done more to compromise its political position.

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Law, Policy and Politics combined

All this has happened at perhaps the worst moment – for the government and for the rest of us.

A new variant coronavirus may require the government to use law, policy and political leadership as means to address the new public health problem.

But the government – by this and other unforced errors – has undermined its ability to do this.

The Downing Street Christmas party story may be a good example of an incident that can be looked at in a legal, a policy and a political way.

But it also can be seen as a good example of everything the government should have avoided.

And the ultimate problem – that of a complete failure of political leadership – cannot be blamed on others:

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“Hello Nemesis? You say Hubris invited you? Go straight in and get some wine and cheese.”

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Why it was incorrect for Downing Street to say the return of the Elgin Marbles is a only a matter for the British Museum

17th November 2021

Yesterday the prime minister of the United Kingdom met the prime minister of Greece and, according to a Downing Street media statement, the following happened:

“Finally, Prime Minister Mitsotakis raised the issue of the Parthenon Sculptures.

“The Prime Minister said that he understood the strength of feeling of the Greek people on this issue, but reiterated the UK’s longstanding position that this matter is one for the trustees of the British Museum.

“The leaders agreed that this issue in no way affects the strength of the UK-Greece partnership.”

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The second quoted sentence is striking for two reasons.

First, that is actually not “the UK’s longstanding position”.

According to the very same prime minister of the United Kingdom earlier this year, there was another “firm, longstanding position” – that the government itself had a view:

“The UK government has a firm, longstanding position on the sculptures, which is that they were legally acquired by Lord Elgin under the appropriate laws of the time and have been legally owned by the British Museum’s trustees since their acquisition.”

(Quoted here.)

Perhaps the real “firm, longstanding position” is that the prime minister and the Downing street press department make it up as they go along.

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But the second thing about yesterday’s statement is even more striking.

That Downing Street thinks this is a matter for the British Museum.

Yet the British Museum has strict legal limits to what it can do to dispose of any of its collection.

(Yes, the legal term here is ‘to dispose’.)

In essence: as the law stands, the trustees cannot simply decide to send the marbles back to Greece.

It would need substantial parliamentary, and thereby governmental, intervention and approval.

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A couple of days ago on this blog, I set out why there significant doubts that these artefacts entered the British Museum collection lawfully in the first place.

Here the stock line-to-take of the British Museum is that “Lord Elgin’s activities were thoroughly investigated by a Parliamentary Select Committee in 1816 and found to be entirely legal” is not true.

This is not true.

There was no thorough investigation – and a parliamentary committee cannot determine or verify title anyway.

And no original legal instrument conveying the ownership of the marbles (or any other permission) to Elgin has ever been produced (and may never have existed); the only documents that were produced at the time of the acquisition were ‘translations’ that appear to scholars to be implausible and possibly fraudulent; and the parliamentary committee that approved the acquisition did not see any original documentation.

Put simply: there was – and is – no original legal instrument that said Elgin owned the marbles and/or that he took them away lawfully.

And if Elgin never owned them, then he had no right of ownership to pass on to anyone else, including the British Museum.

However: after two hundred or so years, it is far too late for anyone to legally challenge the acquisition in court – by reason of limitation legislation and otherwise.

Even if not lawfully acquired, the marbles are now part of the collection.

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Now to what the trustees of the British Museum can and cannot decide.

The British Museum Act 1963 (and its predecessor legislation) provides that objects can be disposed of in certain defined situations:

The marbles are not duplicates; they are from (long) before 1850 and not made out of printed matter; and are not useless because of deterioration.

Even clause 5(1)(c) does not help – for there is no doubt as to the merit of the objects and are of interest to students.

Section 5 of the British Museum Act 1963 means that the museum cannot simply give them to the Greek government.

The only way round section 5 is by new primary legislation – and this has been done (at least) twice for other artefacts.

Section 47 of the Human Tissues Act 2004 provides that human remains can be repatriated.

And the Holocaust (Return of Cultural Objects) Act 2009 provides a power for museums and art galleries to return certain cultural objects on grounds relating to events occurring during the Nazi era.

(The informative British Museum policy on disposing of objects is here.)

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So unless there is new specific legislation such as the 2004 and 2009 Acts, the trustees of the British Museum have no legal power or right to dispose of the Elgin Marbles in any way, other than in accordance with section 5 of the 1963 Act.

The trustees may form views and make recommendations – and a statement saying that the marbles should go to be shown in Athens could certainly be made.

But they cannot do this themselves.

The return of the marbles is therefore not just a matter for the trustees of the British Museum.

Downing Street got the law wrong.

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If there was a decision by the trustees of the British Museum to return the marbles to Greece, then it would be for the parliament to enact another new exception to section 5.

And parliament could not do that in the face of government opposition – it would need government support.

And so it is a matter for parliament and government.

Downing Street not only got the law wrong but also the overall position.

The government itself would need to decide.

The matter is not for the trustees, it is for the prime minister too.

 

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