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.”

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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.

*

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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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.

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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.

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“I’m a firestarter, twisted firestarter.”

The Prodigy, 1996

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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.)

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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.

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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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What if the Elgin Marbles were not legally acquired by the British Museum in the first place?

15th November 2021

No sensible person can deny that the exhibition of the Elgin Marbles at the British Museum is awesome.

To walk into the relevant room at the museum is breathtaking.

But.

The splendid display by itself does not justify the British Museum holding on to them – there needs to be a more compelling reason for retention than how the artefacts are being presented.

For instance: were the marbles lawfully acquired by the museum?

The British Museum states that the acquisition of the marbles was sound:

“Lord Elgin’s activities were thoroughly investigated by a Parliamentary Select Committee in 1816 and found to be entirely legal.”

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Beware of adverbs: and you will see the word ‘thoroughly’ is doing a lot of work in that sentence.

But putting that word aside, you would expect the British museum to realise that title in property is not (and cannot) be determined by a parliamentary select committee.

A report by a parliamentary select committee is irrelevant as to who owned the marbles and whether the acquisition was sound.

A parliamentary select committee cannot determine or approve ‘title’ – the legal right of ownership in a property.

One suspects the British Museum knows this, hence the deft insertion of the word ‘thoroughly’.

Perhaps the British Museum should have said is was a superly-duperly-thorough investigation, so as to clinch the point.

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But.

That there was even a sound legal transaction to begin with is disputed by many, including the American academic lawyer David Rudenstine.

Rudenstine avers in this fascinating paper that the parliamentary committee did not see any original legal documentation – but instead accepted an English translation of an Italian translation of the Ottoman original:

If Rudenstine is correct then the assertion by the British Museum that there was a ‘thorough’ investigation by the parliamentary committee cannot be correct.

And this is apart from the legal fact that a parliamentary committee cannot determine or verify title anyway.

In essence: there was – and is – no original documentary proof that title in the marbles ever passed to Elgin to begin with.

(There is also no record of the transaction in the Ottoman archives.)

And Rudenstine shows that the (supposed) Italian translation of the Ottoman instrument (and thereby the English translation) is not credible and is flawed.

Rudenstine goes so far to say that the Italian translation could only have been a fraudulent instrument.

This is what can happen when there is translation, upon translation, upon translation.

There can be unreliable narratives.

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‘On sober reflection, I find few reasons for publishing my Italian version of an obscure, neo-Gothic French version of a seventeenth-century Latin edition of a work written in Latin by a German monk toward the end of the fourteenth century.’

Umberto Eco, The Name of the Rose

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A previous post on this blog set out the legal principle 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 that thing.

Garbage in, garbage out – legally speaking.

And if you do not have title to a thing, it does not matter how well you subsequently treat that thing, you still do not own it.

It is not yours.

It never was.

If the Elgin Marbles never did belong to Elgin this means title could never have passed to the British Museum.

And if the British Museum never acquired title then a great deal of the sophisticated and elegant defence of the British Museum must fall away.

The facts that the marbles have been looked after and are on show for the benefit of the world are wonderful and welcome – but they are also legally irrelevant.

(If the position were different, and there was a reliable copy of the conveyance instrument for the marbles, then it would be this blogpost that would fall away instead – and I emphasise this post is not about the general merits of repatriation of the marbles but the legalistic argument being used to justify retention.)

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It is reported that Greece is making another request for return of the marbles.

And it looks like the prime minister is resorting to the legalistic argument as a defence:

Well.

Let’s see if the United Kingdom prime minister has an answer if the Greek prime minister asks for proof that the marbles were ‘legally acquired by Lord Elgin under the appropriate laws of the time’.

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The British state seriously thinks an ‘official’ history of the Troubles will change nationalist minds

14th November 2021

Someone must think this is a very clever idea.

In today’s Sunday Telegraph:

If only the United Kingdom government had thought of this before.

An ‘official’ history of Ireland to counter the narratives of the nationalists.

The Victorians could have waved volumes of an official history to silence the complaints of Daniel O’Connell and Charles Parnell.

The 1916 uprising would have been avoided if instead of issuing a proclamation at the Dublin post office, the protestors had gone inside and picked up parcels containing official British histories of Ireland instead.

But: seriously?

What a misconceived notion.

In respect of the troubles, this official history will somehow have explain away how the civil rights of minorities were systemically infringed up to and including the 1970s (and beyond).

And about how torture and inhumane treatment was routinely used by the British state.

It would also need, for example, to explain things like the complicity of the British state in the murder of the Irish lawyer Pat Finucane (on which the British government is still refusing to have a full inquiry)

Uncomfortable things – things the British state is still seeking to avoid getting on the historical record.

The last thing the British state would really want is an objective, evidence-based approach of its conduct during the troubles.

The history of the troubles does need to be recorded – but it will not be done by a British official history.

And on this same basis the history of the terrorists also needs to be recorded – and this will need to be done by those who are not partisans.

No participant in the troubles is going to provide a history that the other participants will accept over and above their own versions.

There is a great deal which the various participants will not want to admit on the record themselves (or even to themselves).

And all this is quite apart from enduring issues of legal liability.

One day, perhaps, there may be a history of the troubles that the various communities and the British and Irish states will accept as a single comprehensive version.

Perhaps.

Perhaps it will be when there is a single comprehensive history of the rest of Britain’s relations with the island of Ireland that is generally accepted.

But that history is still contested – hundreds (if not a thousand) years later.

The better response by the British state to the existence of alternative versions to its own is not to shout over them and to impose an official history but to, well, listen.

To listen to the versions of history that the British state finds so uncomfortable.

And if the British state did listen then…

…that would be something for the history books.

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Solving the problem of the House of Lords

13th November 2021

Over at the Financial Times, there is an interesting and informative piece about the hereditary peers in the house of lords.

And the point of the article is compelling: they make no sense.

The hereditary peers, as with the bishops of the established church of just one(!) of the four home nations, have no place in the legislature.

The only possible plausible argument for their presence is that, at least, there are members of that chamber that do not own their place to patronage.

But that is not much of an argument.

The biggest problem about the house of lords is not so much that of personnel but of function.

And unless we work out the proper function of the upper chamber then there can be no consensus on how to replace the hereditary peers and English Anglican bishops and on how to reform the house more generally.

What is the house of lords for?

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Some may aver that the chamber should have a representative function – perhaps of the home nations or the regions.

(This like the old notion that the house of lords was there to represent the agricultural/landed interests and church interests so as to balance the interests of those represented in the commons.)

Or its membership at least based on being elected by some different configuration than the house of commons.

Like the senate in the United States having two senators per state as opposed to the variable number of representatives per state in the other house of congress.

But this view raises the potential problem of rival mandates, with both houses claiming the legitimacy of the electorate.

In the United States that problem is avoided in part because of tradition, but also because the two houses have some different functions and are elected on separate cycles.

Such a balance would not be easy, at a stroke, to transplant into the United kingdom.

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Far more important than any representative function is, in my view, to retain and improve the revising and scrutiny role.

Here the house of lords, despite its lack of democratic legitimacy, serves the public interest in legislation often being better than it otherwise would be.

Placing the house of lords on some sort of democratic basis would risk losing this valuable role.

But other than through the patronage of the prime minister and others, how should members of this upper house be appointed?

On one hand they need to have the experience, ability and independence to say ‘no’ to a government so as to force reconsideration (though not to veto completely).

On the other hand, they need to have some legitimacy in a democratic society, and so whoever appoints them must have some direct relationship with the electorate.

Indeed, it may even be that there cannot be any reform of the house of lords until there is prior reform of the over-mighty house of commons.

And that in turn may need electoral reform and so on in an almost innate political regression.

Where would you start?

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So, back to the immediate question: how do we solve the problem of the house of lords?

There is no obvious solution – at least not one that does not risk losing what is valuable about a revising and scrutinising upper chamber.

And an unchecked house of commons is not an attractive prospect.

Like the crown, the constitutional significance of the house of lords may be not so much what powers it does have, but what powers it prevents others from having.

Getting rid of the hereditary peers and the bishops – although welcome – leaves the more general issue of what the house of lords is for unsolved.

Perhaps there is no practical and immediate solution.

And that is why in 2021 – 110 years after the temporary retention of peers in the 1911 Parliament Act – we still have this odd system.

(Emphasis added.)

Perhaps in another 110 years we will have a solution.

Or perhaps not.

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Article 16 still has not been triggered – but a government capable of triggering Article 50 is capable of triggering Article 16

12th November 2021

Once upon a time I thought it would be unlikely that a government would actually trigger Article 50.

This doubt was for two reasons.

First: I did not think that any rational government – notwithstanding the 2016 referendum result – would be mad enough to start a formal departure process which was so structurally skewed in favour of the European Union.

And second: even if the United Kingdom did want to depart the European Union there was no absolute reason why it had to be done by Article 50.

(As I averred at time it would have been better if a general departure agreement had been negotiated instead of the somewhat artificial two-stage process we had instead.)

But.

The government of the United Kingdom triggered Article 50 anyway – and without any thought or planning.

What has followed since is generally because of this lack of thought and of planning.

So when the question of triggering Article 16 of the Northern Irish protocol came along, I was careful not to be so rash as to predict that the government would never be so mad to trigger Article 16 – at least as not as part of a re-negotiation exercise.

The government of the United Kingdom has shown it is perfectly capable of triggering articles of treaties without any idea what then follows.

A government capable of triggering Article 50 is capable of triggering Article 16.

It is almost as if triggering a treaty article is seen as some sort of political virility test – Article 50 one year, Article 16 another year.

And so we have been braced-braced for the triggering of Article 16 – even if the government of the United Kingdom has no idea what to do next.

But.

The government of the United Kingdom still has not triggered Article 16 – and, according to news reports, ministers are now seeking to de-escalate the situation.

Perhaps the government of the United Kingdom has come to its senses – and realised that there is a time and a place for Article 16 notifications, and this is not one of them.

Or perhaps the the government of the United Kingdom has realised that the reaction of the European Union – and the United States – would not be worth the trouble.

Who knows.

But one hopes that the government of the United Kingdom is becoming less gung-ho about triggering articles of international agreements.

Such acts are not signals of political virility, but of political thoughtlessness.

And we have had too much political thoughtlessness already.

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The problem of Anglocentrism in law and policy commentary

11th November 2021

Earlier this week I did a podcast with some wonderful Irish lawyers – you can hear my high-pitched Brummie Wednesday Addams voice here:

https://twitter.com/sanzscript/status/1458449730900537351

On the podcast I set out why I aver that the Good Friday Agreement is more practically important as a constitutional text than, say, Magna Carta.

And at the end of my bit, I say something about the problem of Anglocentrism in law and policy commentary.

This is not a direct personal concern: I am from the English midlands (though like others from Birmingham I have Irish ancestors); I went to university in Oxford and then Birmingham; and I trained and still practice as a lawyer in London – and so I have spent almost all my life in a strip of England some hundred-or-so miles long.

It is more of an intellectual concern: an interest in getting things right and having the best possible understanding of what is going on.

And over time I have come to realise that an Anglocentric view of law and policy is a narrow, shallow and intellectually unsatisfying one.

It is not that is more ‘woke’ (or something) to avoid being Anglocentric, it is just about having a deeper, wider and intellectually satisfying appreciation of law and policy.

The United Kingdom in its current configuration is barely one hundred years old; and the United Kingdom is itself only from 1801.

There are buildings in Birmingham – a modern city – older than the United Kingdom.

It is a temporary – perhaps transient – polity in its current form, and to see it as being only about England is to miss what is distinctive about this particular union.

And to see Northern Ireland other than in the context of the island of Ireland is to understand very little about why and how the issue of the Irish border affects the politics of the United Kingdom.

The border issue is not some outside interference to an understanding of the politics of United Kingdom: it is a fundamental part of the politics of United Kingdom.

This is why the document that sets outs out the principles that are to be applied on the issue of the Irish border – the Good Friday Agreement – shapes what can and cannot be done by the government of the United Kingdom.

The instrument practically stops the United Kingdom from doing things it otherwise would want to do, but for the agreement.

And so only by seeing the agreement as a constitutional feature rather than as a constitutional bug can you fully appreciate the parameters of political action in the United Kingdom.

But to do that requires a non-Anglocentric approach – to realise there are features of the other constituent nations of the United Kingdom that are just as (if not more) important than anything that comes from England – or London – alone.

To understand the constitution of the United Kingdom you need to understand it as being about the whole of the United Kingdom, and not as about only England with appendages.

The less Anglocentric the approach to the constitution of the United Kingdom – and thereby to the law and policy of the United Kingdom – the better your understanding.

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Do we really want lawyer-politicians?

10th November 2021

Today is the first year anniversary of this daily blog.

Woo hoo.

Every single day since 10 November 2020 there has been a post on this site: some long, some short, some ignored, and some which have been very popular indeed.

There have been 1.5 million(!) hits on this blog in the last twelve months.

Thank you to everyone who reads and promotes the posts – and a particular thank you to those whose kind donations make it possible for me to justify the opportunity cost and time to keep this daily blog going on a free basis for everyone.

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So today let us look at a story at the heart of law and policy and politics: lawyer-politicians.

The story of Geoffrey Cox is in the news – and over at Joshua Rozenberg’s blog, there is a sterling defence of Cox.

And if you want a sterling defence of Cox then there is where you should go.

This post is instead a half-hearted and implicit defence of Cox.

It is however a defence of having lawyer-politicians, arguing from general principle rather than unattractive facts of this particular case.

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Do we want lawyer-politicians?

By this I mean, members of either house of parliament who are also practicing lawyers.

In the current (unreformed) house of lords, there is no doubt that there is immense benefit from having cross-benchers who are practising lawyers such as Davids Pannick and Anderson, as well as retired law lords who may also be earning fees as arbitrators or mediators.

And if that is to the benefit of the house of lords then it is difficult to argue from principle that it would also not be a benefit to the commons – even if the quality of the lawyers is less stellar.

The office of lord chancellor (which is also secretary of state for justice), and the jobs of the law officers (attorney-general and solicitor-general) all presuppose that there are competent lawyers in parliament to fill such posts (though the lord chancellorship can also be held by non-lawyers).

Practising lawyers can only be banished from the house of commons once there has been proper consideration of what would then happen with the role of law officers.

Maybe it is time to take these roles out of the hands of politicians; maybe not.

But that is a decision which would have to faced before we get rid of practising lawyers from the house of commons.

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It is a public good that there lawyer-politicians in parliament.

Law-makers make laws, and so a professional background for politicians in dealing with laws is thereby a public benefit.

It is also a public good that lawyer-politicians can be candid and semi-independent law officers telling the government unwelcome truths.

The problem with the current law officers is not that they are lawyers, but that they are unwilling to be robust in their special autonomous role.

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Law is one of the main ways of crafting public policy, and so the better laws we have the more public policy will benefit.

And the better the understanding of our legislators about how law works in practice, the better public policy will be generally.

We should therefore be glad there are lawyer-politicians in general, even if some examples are difficult to accept politically.

And if the objection to a particular lawyer-politician is political, then it should be a matter for politics how that particular case is dealt with.

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It could be argued that on election, any lawyer who becomes a member of parliament should cease practicing, and become a full-time politician.

They would still have the benefit fo their legal training and experience.

We would still have lawyers in parliament, they would just be former practising lawyers.

That is a good argument.

But my fear would be that this would limit the number of lawyers who become members of parliament – and already there may be too few for there to be competent law officers (and shadow law officers).

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All this said, however, there can be little sympathy for Cox.

Presumably he cannot even hide behind the cab-rank rule, as that famous rule that barristers must accept instructions does not apply to foreign work.

And voting in the commons from a tax haven, and (it seems) working in that tax haven from his commons office, is not the most impressive feat for a lawyer-politician in the great traditions of the Bar.

The argument about ‘experience’ does not wash either, as a Queens Counsel can be presumed to have valuable experiences in any of their client work.

So it is hard to make a positive case for Cox, and so I will not.

He is, however, saved by the general argument: that if we are to have lawyer-politicians then there will have to be the Cox apples in the barrel as well as those whose practices are less, ahem, glamorous.

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So I mark the first anniversary of this daily blog with a defence of lawyer-politicians generally (but with no explicit defence of Cox in particular).

Thank you again for reading, promoting and supporting this daily law and policy blog, and I will see how I can keep up going on this daily basis for another year.

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What is natural justice?

9th November 2021

The phrase natural justice is rather grand.

When a person avers there has been a breach of natural justice then it sounds that something both bad and important has happened.

Not just a mere commonplace injustice – but a breach of natural justice.

But what does it mean?

And were former member of parliament Owen Paterson and his supporters right to claim there had been a breach of natural justice in his case?

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There is no one fixed definition of natural justice.

Traditionally it had two components.

The first – for which the Latin is nemo iudex in causa sua – is that nobody should be a judge in their own cause.

In practical terms this is the rule against bias – a decision-maker should not have actual or apparent bias in any determination that affects the rights and obligations of others.

The second – for which the Latin is audi alteram partem – is that anyone whose rights and obligations are to be determined shall be allowed to put their case – and to know the case against them.

This rule means that in an adversarial dispute between parties that both sides should be heard, or in an inquisitorial matter, that the person affected can have their say.

It is also now common to say that there is a third component of natural justice: that the tribunal or decision-maker should only make their determination or decision on the evidence put before them and applying the relevant tests.

As you can see, natural justice is about ensuring the integrity of determinations and decisions that affect the legal position of others.

And the reason it is natural is that these are the basic requirements of any determinations and decisions that affect the legal position of others.

Unless there is natural justice then the rest of the case is undermined.

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I thought the above exposition had to be made as I was looking at the report into Owen Paterson (written evidence here),where allegations of breaches of natural justice feature heavily from an early stage, almost as if it were a deliberate litigation strategy.

Perhaps I may write at more length about whether there were breaches of natural justice in the investigation in his case.

Let me know below if that would be of interest.