Category: Policy and Policy-Making

Did you know that there is a Parliamentary Ombudsman?

 

6th February 2022

Did you know that the United Kingdom had an ‘Ombudsman’?

And if you did know, did you know what this Ombudsman can and cannot do?

I have been looking into this strange office for a while now, at the invitation of campaigners.

And the more I look at this curious office, the more confused I become.

This is because it sits very oddly within our domestic legal and administrative system – and is, in effect, a 1960s transplant from another constitutional regime.

The system is almost guaranteed to not fully satisfy anyone who uses it – and, indeed, there seems to be a number of people who are very unhappy with it.

This post is an introduction to the legal basis of the Ombudsman system – and I intend to further posts look at particular problems.

This is because it offers a fascinating case practical study of transparency and accountability (and the lack thereof) in law and policy.

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The notion of an Ombudsman comes from Sweden, and it was a popular and fashionable notion for administrative reformers after the second world war.

The idea was that the Ombudsman would help promote good government by investigating and thereby checking ‘maladministration’ – which is itself a problematic concept from a lawyer’s perspective.

(Is maladministration an unlawful ultra vires act? Or are there acts that are lawful but also maladministration? Who knows.)

By the 1960s – when administrative law in England and Wales was still underdeveloped – having an Ombudsman seemed like an idea that had come.

And so we had one – and then a number.

The primary Ombudsman in the United Kingdom, is the Parliamentary Commissioner for Administration.

This office was established by a 1967 Act of Parliament.

The remit of the Ombudsman is that it can, on referral by a Member of Parliament, “investigate…[an] action taken in the exercise of administrative functions…where…a member of the public…claims to have sustained injustice in consequence of maladministration”.

In some ways, it is a powerful office.

Very powerful.

The Ombudsman can only dismissed by an address of both houses of parliament.

The Ombudsman can require ministers and government departments to provide information and documents – even ‘secret’ information and documents.

It is even a criminal offence to obstruct the Ombudsman.

And the Ombudsman can, after an investigation, place a critical report before parliament that has full legal privilege.

With these legal superpowers, the Ombudsman would be a legal superhero equivalent of any other something-man or -woman.

Such a figure, given these powers, could be expected to be central to discussions about law and policy in central government.

But.

To go back to the top of the post: did you even know that the United Kingdom had an Ombudsman?

Have you ever read an Ombudsman report – or even visited its website?

And here there is a paradox – if not a contradiction.

For, at a time where there seems more and more maladministration, the Ombudsman has almost no public profile.

On the assumption that there is maladministration in central government, and given the legal super-powers of the Ombudsman, why is the Ombudsman so little-known?

And is there a problem with the Ombudsman system, as critical campaigners aver?

Let’s find out in future posts – and your informed comments are welcome below.

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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 the prime minister and other politicians should not be wearing police uniforms

7th December 2021

One of the wisest political decisions in the inter-war years was to ban political uniforms:

They knew in the 1930s that the combination of uniforms and democratic politics is not a happy one.

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This blog has previously been critical of the Home Secretary for wearing an especially designed police uniform and attending a police operation:

Not even Winston Churchill wore a police uniform as Home Secretary in similar circumstances:

One perhaps hoped that the Home Secretary’s wish to dress up in police uniform was a one-off.

But no.

Now we have this spectacle:

We have the very Prime Minister wearing a police uniform.

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Does it matter?

Surely there is no harm in politicians wearing fancy dress?

And perhaps there is no harm in them doing so, as long as they look silly when they do.

But.

A distinction between the police and the civilian politicians to whom they are accountable is a good thing.

The blurring – even removal – of that distinction is, in turn, a bad thing.

The distinction is a mark that we are not a police state – and a mark that we are not in any way approaching a police state.

It is a line – a police line, if you will – which should not be crossed.

Even for promotional photographs.

And already we are at a stage where ministers are expected to have at least two United Kingdom flags behind them in official photographs and films.

That would have too seemed odd for a British politician not so long ago.

Visual rhetoric and paraphernalia is potent, sometimes toxic.

The legislators of 1936 were sensible enough to halt political uniforms in the United Kingdom before it went too far.

A similar prohibition on politicians in uniform would also be a wise move.

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How the Government both won and lost the Priti Patel High Court bullying case

6th December 2021

Today judgment was handed down in the case brought by the civil service union the FDA in respect of the Prime Minister’s determination that the bullying of the Home Secretary had not broken the Ministerial Code.

On the face of it, the government won the case.

And so this is what the press reported (and that is what time-poor news desks have published on their news sites):

But.

There are different ways that a government can win a case like this – and a closer look at the judgment shows that in substance this is not a welcome decision for the government at all.

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First, we need to know what the case was – and was not – about.

The case was not about deciding whether the Home Secretary is a bully or not – that was not what the court was being asked to determine, and the detailed evidence about bullying was not put before the court:

And, as that was not the question before the court, then the hot takes that the court has ‘cleared the Home Secretary of bullying’ are not and cannot be true.

The primary question before the court was whether it was open to the Prime Minister, given the information before him, to determine that there had not been a breach of the Ministerial Code.

The court found that, on this occasion, the determination that there had not been a breach of the Ministerial Code was one of the determinations open to the Prime Minister on the information before him.

But in reaching that conclusion the court made a number of points that were against the government – and these points may be significant in future cases.

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First, the court held that the Prime Minister’s determinations of the ministerial code were, in principle, amenable to judicial review by the courts.

The government made a spirited attempt to argue that the Prime Minister’s determinations of the ministerial code were not ‘justiciable’ – that the very subject matter was a no-go area for the High Court.

The court deal with justiciability in paragraphs 25 to 43 of a 61 paragraph judgment – about a third of the decision.

The court accepted that not every determination of the Code may be judicially reviewed.

And, of course, those judicial reviews which are heard by the court may not succeed (as with this case).

But there is nothing stopping a similar case on different facts succeeding just because of the subject matter.

That the court held that, in principle, prime ministerial determinations of the Ministerial Code are amenable to judicial review is a boon for transparency and accountability.

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Once the court had dismissed the government’s attack on justiciability, it turned to whether the Prime Minister had misdirected himself in applying the Code.

Here the key paragraph of the Code is:

“1.2 Ministers should be professional in all their dealings and treat all those with whom they come into contact with consideration and respect. Working relationships, including with civil servants, ministerial and parliamentary colleagues and parliamentary staff should be proper and appropriate. Harassing, bullying or other inappropriate or discriminating behaviour wherever it takes place is not consistent with the Ministerial Code and will not be tolerated.”

The information before the Prime Minister was an advice from Sir Alex Allan, the independent adviser on the Code.

His advice included the following:

“My advice is that the Home Secretary has not consistently met the high standards required by the Ministerial Code of treating her civil servants with consideration and respect.

“Her approach on occasions has amounted to behaviour that can be described as bullying in terms of the impact felt by individuals.

“To that extent her behaviour has been in breach of the Ministerial Code, even if unintentionally. This conclusion needs to be seen in context. There is no evidence that she was aware of the impact of her behaviour, and no feedback was given to her at the time.”

Having considered this advice, the Prime Minister’s conclusion was:

“Sir Alex’s advice found that the Home Secretary had become – justifiably in many instances – frustrated by the Home Office leadership’s lack of responsiveness and the lack of support she felt in DfID three years ago.

“He also found, however, that the Home Secretary had not always treated her civil servants with the consideration and respect that would be expected, and her approach on occasion has amounted to behaviour that can be described as bullying in terms of the impact felt by individuals.

“He went on to advise, therefore, that the Home Secretary had not consistently met the high standards expected of her under the Ministerial Code. 

“The Prime Minister notes Sir Alex’s advice that many of the concerns now raised were not raised at the time and that the Home Secretary was unaware of the impact that she had.

“He is reassured that the Home Secretary is sorry for inadvertently upsetting those with whom she was working. He is also reassured that relationships, practices and culture in the Home Office are much improved.

“As the arbiter of the code, having considered Sir Alex’s advice and weighing up all the factors, the Prime Minister’s judgement is that the Ministerial code was not breached.”

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The FDA’s claim was that, given Allan’s advice, this was not a conclusion that the Prime Minister could have legally made.

Here paragraph 58 of the judgment is important about the Prime Minister’s conclusions:

In other words: because the Prime Minister did not say Patel was not a bully, it must be that he either accepted Allan’s advice or did not form his own view.

Had the Prime Minister explicitly rejected Allan’s advice that it was bullying then it would have been a different legal situation.

The judgment then goes on in paragraph 59 to the other factors considered by the Prime Minister – it is not a paragraph easy to follow in one go, and may require re-reading:

The essence of the paragraph is in the sentences:

“In that context, the statement that the Prime Minister’s judgement was that the Ministerial Code was not breached is not therefore a finding that the conduct could not be described as bullying.

“Rather, it is either a statement that the Prime Minister does not consider, looking at all the factors involved, that it would be right to record that the Ministerial Code had been breached, or alternatively, that the conduct did not in all the circumstances warrant a sanction such as dismissal as it did not cause the Prime Minister to lose confidence in the minister.”

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The Prime Minister can consider himself very lucky to have won this case.

Once can quite imagine a differently constituted court (or the Court of Appeal) taking a harder view against the Prime Minister

The FDA, in turn, are right to aver the following:

“The High Court has decided:

 – That the prohibition on bullying, discrimination and harassment in the Ministerial Code is justiciable in the Courts.

– That the Prime Minister must correctly apply those concepts when determining complaints against ministers.

– That it is not an excuse for bullying under the Code that a minister does not intend or is not aware of the upset and distress caused by their actions.

“These findings vindicate the claim brought by the FDA and represent a clear rejection of the idea that there are different standards for ministers than for civil servants. The FDA is applying for its full costs of the claim to be paid by the government.

“In an unexpected development, the Court also found that the Prime Minister had not acquitted the Home Secretary of bullying in his decision in November 2020. The Court has held that the Prime Minister must have accepted the advice of Sir Alex Allan that the Home Secretary had engaged in bullying (or at least that he did not reach any concluded view on the matter).”

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Whichever government lawyer drafted the conclusions of the Prime Minister ultimately won this case for the government.

A more clumsily worded statement would have meant that even this court would have decided in favour of the FDA.

The government won – just about.

But now there is a High Court decision holding that determinations of the Ministerial Code are justiciable and that the Prime Minister must act properly in applying the Code to particular cases.

The case was also decided on the bases that the Home Secretary was not exonerated of the allegations and that the lack of intention did not mean it was not bullying.

The FDA must be tempted to have one more heave – and to take this to the Court of Appeal (though there would be a risk that it could lose the gains it has made).

The government is in the harder appeal position – for it can hardly appeal a case which it has ‘won’ and so it is stuck (for now, unless the FDA appeals) with the finding of justiciability and other points made by the court.

So this is a good example of a case which both sides can be seen to have lost – but one in which both sides can also be seen as having won.

And the more significant victory, for transparency and accountability, is that of the FDA.

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How if a business issued the government’s “40 new hospitals” guidance it would be acting unlawfully

1st December 2021

The current government makes much of its manifesto promise that it will build ‘forty new hospitals’.

But at prime minister’s questions today, the opposition leader referred to the following guidance for public officials (or ‘playbook’ as it is formally described):

So a ‘new hospital’ includes an additional new clinical building where there is an existing hospital.

And even the refurbishment (or upgrade) of an existing hospital, as long as it looks different from the outside.

Both of these are jolly good things to be welcomed, but no sensible person would call them ‘new hospitals’.

Yet the government is requiring public officials to say this untruth.

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What if a business did this to consumers?

The Consumer Rights Act says things have to be as described.

Regulation 5 of the consumer regulations provides that an unfair commercial practice includes when a practice ‘in its overall presentation in any way deceives or is likely to deceive the average consumer in relation to…the quantity of the product’.

That reference to ‘overall presentation’ means that something hiding in the small print is not good enough as a legal escape.

If a business made such claims to a consumer then the law would regard this as ‘a misleading commercial practice’ and in breach of consumer protection rights.

Even without consumer law, claims that a major thing would be ‘new’ when it would either be merely an addition or a refurbishment would be likely – under general contract principles – to be either a misrepresentation that would mean the contract would be put aside or a material breach of a contract.

Indeed, some would go further and say such knowingly misleading statements in would even constitute fraud.

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The reason why these false claims are to be made so that it will appear that the governing party has met its own political manifesto commitment – and note how the manifesto itself distinguishes between upgrades and new hospitals:

‘Everyone in the UK should have the peace of mind and confidence that come from world-class health care – and so this new One Nation Conservative Government is giving the NHS its biggest ever cash boost, with 20 hospital upgrades and 40 new hospitals […]’

‘[…] have begun work on building 40 new hospitals across the country , as well as investing in hospital upgrades […]’

‘We will build and fund 40 new hospitals over the next 10 years. This is on top of the 20 hospital upgrades announced in the summer […]’.

Three times the promise is explicitly made in the manifesto.

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Of course, law is not politics, and political language is not to be held to legal(istic) standards.

But.

It is rare to have official guidance – even if called a ‘playbook’ – which sets out how public officials are to describe something falsely as a new hospital when it is not a new hospital.

Not only are ministers lying to us, but ministers are now requiring public officials to lie too.

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High Speed 2 is not about speed, but capacity, and that is where the policy discussion has gone wrong

18th November 2021

In the early 1990s, the comedian Jasper Carrott opened a charity shop on the High Street in Oxford.

Commenting on the (then) new M40 extension, he quipped to the Oxford worthies:

“I hear Birmingham is twenty minutes nearer now.

“You must be delighted”.

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The problem with with the public and policy discussion about High Speed 2 is that the emphasis is on speed.

Some of us may be happier that Birmingham would be a few minutes nearer, while others may be happier that it would be quicker to get away.

But the important thig is not about speed, but capacity.

Whomsoever badged the branding for this project as being about speed blundered badly.

It is really about the amount of stuff that can be sent by train.

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I have mixed feelings about High Speed 2.

As a Brummie and midlander, I welcome the increased capacity, as it would be a significant benefit.

But as an instinctive environmentalist, I dislike the effect on the countryside.

And so if it were only about speed, High Speed 2 would not be worth a single tree in Warwickshire.

But if it is about capacity – and thereby taking freight away from the lorries on the roads – then the environmental perspective is more complicated.

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It may be that you think that a cost-benefit analysis means that High Speed 2 should be dropped for the north of Birmingham.

But before one conducts any cost-benefit analysis one had to know what the costs and benefits actually are.

And the benefit of High Speed 2 is not speed – a few minutes here and there – but significantly increased capacity.

You may think that even if the benefit of High Speed 2 is correctly identified as increased capacity (and not speed) that the environmental and other costs more than offset the benefit.

You may be right or you may be wrong.

Views may differ.

But at least it would be a true cost-benefit analysis.

Rather than a comparison of an important thing with an unimportant thing.

The environment matters; increased freight capacity matters; but speed does not matter.

Even if it  would be delightful that Birmingham is twenty minutes nearer.

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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.”

*

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.

*

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.

*

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.

*

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.)

*

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.

*

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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The ‘c’ word – why ‘corruption’ is the accurate word for describing what the United Kingdom government is doing

16th November 2021

Corruption is more a political than a legal term – at least in the law of the United Kingdom.

For instance: there are no current Acts of Parliament with corruption in their title:

In criminal law there is no particular offence of corruption – but instead offences in respect of bribery and misconduct in public office.

Neither of these offences equate with corruption.

Bribery is too narrow – for taking and giving bribes is only a subset of corruption.

And misconduct in public office is too wide – for this umbrella term can cover official misbehaviour that is not necessarily corrupt.

In everyday legal practice the word corruption is now often lumped in with anti-bribery – with the acronym ABC being used to discuss any policies and laws that deal with such wrongful behaviour.

So to talk of corruption, at least in the United Kingdom, is not to speak of anything legally specific.

The word is about politics, not law.

So if you think term corruption should be used to describe the current government of the United Kingdom then it is because it is a better political (than legal) fit than any other term.

*

The other common term on offer is sleaze.

This word is widely used perhaps for two reasons.

The first is because it was once an effective word.

As anyone who can remember the 1990s will know, this term once had considerable media and political purchase.

The word sleaze dominated and perhaps changed British politics.

And so perhaps those using the term are hoping that using the word similarly catches the worlds of media and politics alight again.

An attempt to re-live the 1990s.

*

“I’m a firestarter, twisted firestarter.”

The Prodigy, 1996

*

The second reason for the avoidance of the ‘c’ word is far less commendable.

It is the notion that corruption is what other nations do – and so the avoidance of the word is an example of British exceptionalism.

Here I recommend the @gathara account by Patrick Gathara and his long-running threads that frame the politics of the United Kingdom, Europe and America in the same (condescending) terms that the politics of Africa are often framed by those in the United Kingdom, Europe and America.

The threads make for uncomfortable and telling reading.

(I have seen these threads described as parody, but the thing is that they are not really parody, and perhaps the opposite, for this is exactly the style in which the media and politicians of United Kingdom, Europe and America routinely frame African affairs – it is a house style, not satire.)

*

Corruption, as a word, means debasement.

Think of a corrupted program.

This is more than intended dishonesty – for things can be debased for various reasons.

The general and sustained assault by the British government on a range of institutions and bodies that provide checks and balances is an exercise in debasement.

There is no better word than corruption for what this government is doing to our polity.

For instance: the ultimate problem with the Owen Paterson affair was not so much the paid advocacy – for that had been identified, investigated and decided upon by the relevant committee, and so the system was ‘working’ – but the blatant attempt by the government to use its power to attack the committee and the system generally.

That was the real debasement.

The state of the United Kingdom is being corrupted.

*

Politicians and the media use the words and phrases which they perceive as working in their interests.

And politicians and the media currently see the word sleazy as being expedient.

But they also, it seems, see the word corruption as not being advantageous.

Why would that be?

Perhaps is because to use that ‘c’ word would mean that we finally accept that British exceptionalism is a sham.

For the United Kingdom is a corrupted state too.

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