Is ‘natural justice’ the new free pass for politicians in a tight spot?

Robert Jenrick has shown MPs in trouble will always fall back on pragmatic and practical arguments on questions great and small, writes Sean O'Grady

Boris Johnson is under intense pressure to sack the housing secretary (Getty)

When a political figure is in trouble with the law, a very handy new line of defence has now been introduced – “natural justice”. It is how Robert Jenrick, the secretary of state for housing, communities and local government has chosen to defend his intervention in a controversial property development by Tory donor Richard Desmond. Like Dominic Cummings’s plea that breaking the lockdown rules (or the spirit of them), it is used as a trump card, appealing to the court of public opinion and the much-vaunted “common sense” of the British people. The prime minister himself has endorsed the broad principle of doing what you think is right.

In effect, in his evidence to the select committee, Jenrick not only conceded that he deliberately helped Desmond by rushing through the housing development, to save Desmond a £45m tax bill (a local community infrastructure levy) and maintain the commercial viability of the £1bn scheme to convert an old printworks in London’s docklands.

Jenrick chose to invoke natural justice to support his case, though his actions were later struck down in a real-world court. The affair has proved embarrassing for the government, with much pressure being placed on Boris Johnson to sack Jenrick. While Jenrick survived, party members will also not have forgotten an earlier row Jenrick got into when he travelled during lockdown to his parents to deliver food and medicines.

In the way of these things, Jenrick may not lose his position in the cabinet, but neither do his accident-prone ways make him an obvious candidate for rapid promotion.

Still he has made a minor contribution to constitutional history by introducing the concept of natural justice into the traditionally murky world of party funding and lobbying. Natural justice remains undefined in any act of parliament or the ministerial code, though it certainly does exist as a concept in English law, as when a court may decide that an individual’s access to a hearing and justice has been impaired, and natural justice demands they be given an opportunity to make their case.

Arguably, for example, the right of Shamima Begum, who travelled to Syria to support Islamic State, to return to Britain to have her day in court falls into that category. In law, “natural justice” is used to prevent acts of “apparent bias”. Ironically it was Jenrick himself whose decision was found to be “unlawful by means of apparent bias”. So the court found that Jenrick has actually defied natural justice, despite his pragmatic justifications.

When the initial story emerged that Desmond had been placed next to Jenrick at a Conservative fundraising dinner, and took the opportunity to discuss his plans with the minister, followed up by text exchanges, Jenrick was defended by a ministerial colleague. Business minister Nadhim Zaharia made the practical argument that Jenrick just wanted “to get more housing built, quickly, for people who really need it”, adding that voters should attend fundraising dinners to get access to senior figures. Desmond’s dinner was a £900 per head affair at the London Savoy.

Novel though the particular formulation of “natural justice” is, the conclusion must be that politicians in a tight corner legally will always fall back on pragmatic and practical arguments on questions great and small.

The justifications, origins and conduct of the Falklands War and of the Iraq War, for example, were criticised on legal grounds at the time, but Margaret Thatcher and Tony Blair justified their momentous decisions on overriding moral and political grounds, about resisting dictators and promoting democracy. A planning dispute in the east end of London involving a political nonentity hardly deserves to be mentioned in the same breath, except to note Jenrick’s unnatural chutzpah.