7th June 2021
A person is in the news because they donated £500,000 to a political party days after taking a seat in the house of lords.
This post is not about that person.
I have no idea about the circumstances of that appointment. and so I do not make any allegations in respect of those circumstances – and this is not just safe libel-speak, I genuinely do not know, and nor (I suspect) do you.
(And anyone commenting below who makes an allegation of criminality in respect of that appointment – or anyone else – will not have their comments published – this is not Twitter, you know.)
This post is instead about the legislation that is usually mentioned when such appointments are made: the Honours (Prevention of Abuses) Act 1925.
It is a curious statute – not least because the offences it creates appear hardly to have ever been successfully prosecuted.
(The one early exception appears to be Maundy Gregory.)
*
The legislation has one substantive clause that in turn creates two offences.
The first offence is (and in language itself as cumbersome as the name, title and style of any obscure peerage):
‘If any person accepts or obtains or agrees to accept or attempts to obtain from any person, for himself or for any other person, or for any purpose, any gift, money or valuable consideration as an inducement or reward for procuring or assisting or endeavouring to procure the grant of a dignity or title of honour to any person, or otherwise in connection with such a grant, he shall be guilty of a misdemeanour.’
Let’s try to make sense of this word-soup.
This first offence relates to the person who is (in effect) on the supply-side of a relevant transaction – the person ‘accepting or obtaining’ the ‘inducement or reward’.
This supplier has to be shown to (a) accept, (b) obtain, (c) agree to accept, or (d) attempt to obtain [x] in return for [y].
The [x], in turn comprises two things: (a) any gift, money or valuable consideration which also has the quality (b) of being an inducement or reward for procuring or assisting or endeavouring to procure the grant of [y].
This means proof of a ‘gift, money or valuable consideration’ is not enough: there also needs to be proof of its purpose.
The [y] is the most straightforward: ‘the grant of a dignity or title of honour to any person, or otherwise in connection with such a grant’.
What all this means is that showing there is cash and an appointment is not enough: there has to be proof of intention to the criminal standard of proof – that is (in general terms) beyond reasonable doubt.
*
The second offence deals with (in effect) the demand-side:
‘If any person gives, or agrees or proposes to give, or offers to any person any gift, money or valuable consideration as an inducement or reward for procuring or assisting or endeavouring to procure the grant of a dignity or title of honour to any person, or otherwise in connection with such a grant, he shall be guilty of a misdemeanour.’
There is no need to unpack this like the first offence – but you will notice that again there is the need to prove that the ‘gift, money or valuable consideration’ is for the purpose of bing an inducement or a reward.
So, as before, showing there is cash and an appointment is not enough – there needs to be proof of intention.
*
Those with good political memories will recall the ‘cash for honours’ investigation of 2006-2007.
This investigation included the extraordinary moment of a dawn-raid on the home of a government official and the questioning by the police of the then prime minister.
All very dramatic.
But nothing came of it.
No charges were brought.
The Crown Prosecution Service provided detailed, legalistic reasons for their decision not to prosecute.
The CPS averred that not only did it need to prove intention (on both sides) but also that it also had to prove that there was an agreement:
‘If one person makes an offer, etc, in the hope or expectation of being granted an honour, or in the belief that it might put him/her in a more favourable position when nominations are subsequently being considered, that does not of itself constitute an offence. Conversely, if one person grants, etc, an honour to another in recognition of (in effect, as a reward for) the fact that that other has made a gift, etc, that does not of itself constitute an offence. For a case to proceed, the prosecution must have a realistic prospect of being able to prove that the two people agreed that the gift, etc, was in exchange for an honour.’
These CPS reasons were compiled and endorsed by some very clever criminal lawyers – though the rest of us may struggle to see the absolute need for proving an agreement under the 1925 Act.
Nonetheless the CPS insisted:
‘In essence, the conduct which the 1925 Act makes criminal is the agreement, or the offer, to buy and sell dignities or titles of honour. Section 1(1) is drafted in wide terms and captures any agreement in which a seller agrees to procure a peerage in return for money or other valuable consideration. Section 1(2) is also drafted in wide terms and captures any agreement in which a buyer agrees to provide money or other valuable consideration, in order to induce a seller to procure a peerage.’
*
If the CPS are correct in this interpretation and construction of the statutory offences, then this makes it hard, if not impossible, for the offence ever to be prosecuted successfully.
And, even without the CPS gloss, the requirement to show intention made the offence hard to prosecute in the first place.
There may be other laws which may apply – for example, fraud legislation – but not the one piece of legislation that actually has the sale of honours as its dedicated purpose.
For, as long as those involved make sure there is no paper-trail and that the choreography of nods-and-winks are done in the right order, there is no real danger of any prosecution under the 1925 Act.
What the 1925 Act prevents is the blatant Lloyd-George style of an open market for the sale and purchase of honours.
For a statute to only regulate (in effect) the seemliness of the trade in peerages and other titles is a very, well, British (or English) thing to do.
Otherwise, the 1925 Act is an ornament, not an instrument – and so it is as much a mere constitutional decoration as any ermine robe, and is just as much use.
*****
Thank you for reading.
This law and policy blog provides a daily post for you and others commenting on and contextualising topical law and policy matters.
If you value this free-to-read and independent legal and policy commentary for you and others please do support through the Paypal box above, or become a Patreon subscriber.
Each post takes time, effort, and opportunity cost.
Suggested donation of any amount as a one-off, or of £5 upwards on a monthly profile.
*****
You can also subscribe for each post to be sent by email at the subscription box above (on an internet browser) or on a pulldown list (on mobile).
*****
Comments Policy
This blog enjoys a high standard of comments, many of which are better and more interesting than the posts.
Comments are welcome, but they are pre-moderated.
Comments will not be published if irksome.
Clearly we need new legislation – maybe even to link the payment and peerage together as evidence of cause and effect. In the meantime, let’s consider what else we might like in it? Clear offences of abuse of public office? A probity offenders register; with people on it being barred from holding public office.?
The sin David Lloyd George committed, particularly in the eyes of the Conservative Party’s establishment was to put the sale of honours and titles on a commercial basis with a price list, setting out the fixed amount to be paid for each item on offer.
To add insult to injury, the revenue from the sales went into a political fighting fund over which Lloyd George had complete control in terms of the disbursement of monies from the pot.
It was not that the sales of titles and honours was being done that was the issue, it was common practice amongst both main parties, Conservative and Liberal, but the manner in which it was done and the relatively selfless purpose to which the income raised was put that caused irritation, even annoyance.
The upstart from Llanystumdwy, no better than he ought to be, had done it again. He had played the Establishment at their own game and proven better at it, too.
Imagine, for a moment the reaction of Boris Johnson to being successfully outmanoeuvred by Jess Phillips on ground that should be the sole preserve of men like himself.
Chaps who went to the right school and university, who know the right people.
Women, to adapt a PG Wodehouse quote, are not gentlemen and neither was Lloyd George.
I do not know. And neither do you.
Indeed, but that’s the problem. This person will have the authority to pass laws that affect all of us (and to shape them to his own advantage), for the rest of his life, and we are not even allowed to know how he came to be in that position?
Of course, the House of Lords is a profoundly undemocratic institution whichever way you look at it, but the lack of transparency in the process for appointments (for example, something on the lines of senate-confirmation hearings for Supreme Court judges) means that the process is intrinsically corrupt, no matter the details of individual cases.
Provided they are modified so they didn’t carry a right to vote in the Lords, I see nothing against selling peerages. Useful way of taxing rich insecure snobs. Sliding scale, the more evil youve done, the higher the price. Price trebles to make it hereditary Allow advertising, Earl Branson of Virgin Atlantic. I wd have thought it entirely in line with the values and aims of this government.
An idea with some merit, although even without voting rights, there is potential for them to cause damage, for example through filibustering.
1) There is no sign of loss of voting rights.
2) There might be a sense in that were the payments to the Treasury rather than to the party of the PM further strengthening their power.
3) The peerage may be just one aspect by which benefits are derived from the donation, it may also put them on the VIP lane for highly lucrative contracts so in effect cost the public and enrich the powerful.
Whilst a sensible transaction of money for ermine would be conducted entirely verbally, and in nods and winks, I would expect that, in these days where emails and whatsapps and texts act as a form of communication somewhere between formal writing and speech, there will be written evidence of such transactions.
However, unless somebody from the media acts as an agent provocateur, or a new lord is exceedingly foolish and brags about his or her route to the House, then I do not suppose any such evidence trail will be exposed. A police force isn’t going to go on a fishing expedition.
Of course, it is entirely possible that there is no relationship between gifts of money to a political party and the elevation of rich but dim and disreputable people to the legislature…………
Wouldn’t the Bribery Act now be the appropriate legislation these days?
That was my first thought too!
The final para states “Otherwise, the 1925 Act is an ornament, not an instrument – and so it is as much a mere constitutional decoration as any ermine robe, and is just as much use.”
The beauty of the act is it gives the appearance of probity without any particular restrictions on how honours are distributed. Seems a win/win for the English political class.
Does the CPS have the same view when it comes to tacit colluders / cartels that never “agree” to keep prices high / stay out of each other’s markets?
Some interesting examples:
https://www.regulation.org.uk/competition-cartels.html
“ It is interesting to note that pricing intentions do not have to be communicated direct from one party to another. A number of UK supermarkets were brought before the courts after they had sought, in/around 2002/2003, to co-ordinate increases in their retail cheese prices by telling their cheese suppliers about their intentions. ”
If a large donor A told local chairman B that they would like a peerage “one day” and B communicated that to party official C, would that be an offence?
One could try to establish a counter factual (as the CMA does for tacit collusion). Would person X have received their position in the absence of a history of donations?
It is almost as if the 1925 legislation was drafted to provide a control mechanism for those who engaged in the ritual rather than prevent it.
Indeed.
Fascinating that it’s not been redrafted/updated in the almost 100 years of its existence.
Two things come to mind to me:
First, what if there was a code of conduct among parties. You know the sort of thing: we agree not to accept a donation from somebody nominated for an honour three years before and after the nomination. (Yes, they’d get round it – but the manoeuvring would be fun to watch.)
Second, this all links to hierarchies and forelock-tugging. In large organisations, senior management rarely carries the can – they are seen as being beyond the rules. It feels the same with politicians and political parties. As David Allen Green has pointed out previously, the question is what can PM get away with – which is just about anything.
The good thing is that is adds more fuel to the fire about the second chamber – a real bonfire of the vanities, perhaps?
The Act is cosmetic, to give the appearances of doing something, but no more than that.
Why is the offence a misdemeanour, a lesser crime, and not a more serious felony? (I appreciate that these terms are no longer used.)
The whole concept of “honours” is absurd, degrading, and has no place in a modern democracy. If anyone is offered an honour they should refuse it.
The rank is but the guinea’s stamp,
The Man’s the gowd for a’ that.
I meant to include this extract as well but hit “post” too soon, sorry.
Ye see yon birkie ca’d a lord,
Wha struts, an’ stares, an’ a’ that,
Tho’ hundreds worship at his word,
He’s but a coof for a’ that.
For a’ that, an’ a’ that,
His ribband, star, an’ a’ that,
The man o’ independent mind,
He looks an’ laughs at a’ that.
A “birkie” is an arrogant, swaggering fellow.
A “coof” is a lout, a fool, a dull spiritless person.
Thank you for posting this; it’s very apt in this context.
One point to note, that this song is/has been part of the opening ceremony of the Scottish Parliament, which is very (!) different from the Westminster equivalent.
PS I really liked Midge Ure’s version of the song at the last opening.
I recall from the mists of time when I was a student of History at TCD reading a book on Politics in 18th century Ireland – it may well have been by the late great Prof. R.B. McDowell – and I believe had a chapter entitled “Places, Pensions and Peerages”, detailing the various levels of patronage available to government to reward its supporters and waiverers. “Patronage” by the Monarch / the Government has been a leitmotif throughout the history of most nations. But it persists like a canker in the UK. There are the more honourable rewards for military leadership and success: Marlborough, Nelson, Wellington, Alamein, Tunis etc but they are far outweighed by the rewards for political skulduggery, loans of money, sexual favours (e.g. mistresses of Charles II, Louise Kéroualle and Barbara Villiers, created respectively Duchess of Portsmouth and Duchess of Cleveland, both graspingly rapacious, the latter known as the “curse of the nation”), all the way through to Lloyd George’s honours broker, Maundy Gregory when the “going rate” for a Baronetcy was £40,000, all the way through to today, scattering Knighthoods, various Orders of the “British Empire” (what??) and, of course, stuffing the Lords so that it is now the second largest legislature in the world after China (1,430 and counting versus China’s 2,987), and is all part of that wonderful British corrup… sorry “Honours system”. Nobody does pageantry like us British and no one does canting hypocrisy like us either. And we wonder why other nation’s snigger when we simultaneously piously applaud ourselves whilst point the accusing finger at others. The UK’s system of “Patronage” is merely a euphemism for the application of systemic and systematic State corruption on behalf of the governing party. Until there is revolutionary constitutional change in this country it will continue because it is so useful and so inexpensive. Nothing has been quite so disheartening, as various egregious scandals have exposed, is just how cheaply British politicians can be bought. The truly honourable are those that have refused an “honour” and retain the glory of an unadorned name, rather like those very generous donors of the arts and charities who choose to remain anonymous.
You observe that “as long as those involved make sure there is no paper-trail and that the choreography of nods-and-winks are done in the right order, there is no real danger of any prosecution”.
As other of your posts have demonstrated, this applies more generally to breaches of the Ministerial Code and blatant falsehoods (such as the PM’s assertions that the TCA creates “no non-tariff barriers” or that the NIP creates no trade border down the Irish Sea). Instead of tightening things up – because the ‘good chap’ theory of Govt is now so comprehensively destroyed – Johnson is keen further to limit the scope of judicial review, and weaken the powers and independence of other gatekeepers, from Parliament to the Civil Service to
the BBC.
Depressing.
The Queen is not legally obliged to act on the advice of her ministers.
She invariably does so because there is a convention that she should.
But there are also conventions governing the advice that ministers give her. E.g. that unworthy persons should not be recommended for honours, or that parliament should not be prorogued in order to prevent it from taking action ministers don’t want it to take.
If her ministers develop a habit of blatantly ignoring such conventions, the obvious remedy is for the Queen to start taking advice from elsewhere as to the advisability of ministerial advice, and if necessary rejecting it.
There’s nothing in the constitution that says she has to be entirely inert.
If the monarchy is our last line of defence against a government gone mad, it seems to me likely that they will only get one shot at it, because if they mess it up, the government will have grounds to answer the oft heard cry that the monarchy has had its day.
I suspect that a deeply entrenched admiration for the Queen far outweighs Johnson’s popularity.
If she graciously declined to countenance one of his more egregious attempts to make the constitution “whatever Boris Johnson can get away with” (to quote DAG’s post of yesterday), and publicly explained why she’d done it, I predict that the applause would drown out the cries of outrage.
If the Prime Minister gives a peerage to a donor because of the donation, then that is not an offence under this act because they did not have that intent, but is it the case that the Prime Minister has misconducted himself, and committed an offence at common law?
However there is an established principle that the common law offence should not be prosecuted if there is a statutory offence which covers the misdeed: does this act qualify for that point, in which case it seems that the purpose of the act is to protect the minister from the common law.
May not be that surprising but even the one conviction under the 1925 act was not for selling UK honours as Maundy Gregory was convicted for selling Vatican knighthoods.
I gather that was a separate matter.
Gregory continued to sell honours after the passing of Act, even though he was unable to honour any contract of sale for honours, British, Papal or of overseas countries.
He pleaded guilty in 1933 to the attempted sale of a peerage in 1932.
And he was subsequently fined £50 and jailed for two months.
If Wikipedia is to be believed (and the source given doesn’t appear to directly provide the figures) he was making as much as £3m per year (present-day value), across some 14 years preceding that prosecution. That sentence seems more likely to attract the envious eyes of would-be competitors than to deter anyone, like a commercial fine for failing to adhere to the process of an otherwise commendable enterprise.
When I was young, we had an (even then) old edition of the Guinness Book of Records at home and, for reasons I cannot explain, I remember that the 1925 Act was listed in it as the least prosecuted criminal offence – I even remember there was a picture of Maundy Gregory to illustrate it!
This seems very murky. Is there any case law to support the position the CPS appears to have taken on the need for proof of a binding bilateral agreement before there can be an offence?
For example, the “giving” offence could be paraphrased (without changing the meaning) as: it is an offence if “any person gives … or proposes … or offers … [a] gift [to any person] as an inducement or reward for … [granting an] honour to any person, or otherwise in connection with such a grant”.
Plainly one may offer an inducement or reward to someone without that offer being accepted. In this case, it is the offer or an inducement or reward that is the offence, not its acceptance.
For the “receiving” offence, it could be paraphrased as: it is an offence “If any person accepts … or attempts to obtain … (for himself or for any other person) … [a] gift [from any person] as an inducement or reward for … [granting an] honour to any person, or otherwise in connection with such a grant”
Acceptance of a gift as an inducement or reward suggests some sort of transactional basis – presumably acceptance of an earlier offer – but plainly it would also be an offence to seek a gift (that is, attempt to obtain one, or inviting an offer of one) in connection with the granting of an honour, even if the person from whom that gift or reward was sought declined to provide it.
s.1 and s.2 of the Bribery Act 2010 (offences of giving or receiving a bribe) also seem bang on point. (offering an advantage, intending the advantage to induce someone to
perform a function improperly; and requesting or accepting an advantage intending that a function should in consequence be performed improperly). https://www.legislation.gov.uk/ukpga/2010/23
Perhaps this 1925 Act should be repealed and brought clearly into the ambit of the 2010 Act.
“Perhaps this 1925 Act should be repealed and brought clearly into the ambit of the 2010 Act.”
And for similar reasons to the ones for which the Prevention of Corruption Acts were replaced by the 2010 Act.
So what kind of effective law could we have to regulate the purchase and sale of honours?
There is a key difference between bribery and political donations. There is no good reason to give money to a ministry official, or a minister in personal capacity, so prima facie it’s a bribe. But political donations is how political parties fund themselves, in many countries. So proving a nexus between a donation and a specific favour is inevitably very difficult. Parties do things that favour their followers in a general sense. Where this merges into corruption or inducements is very fuzzy, and there’s quite a broad spectrum of levels of cleanliness. “Pork” would normally fall short of indictable corruption, but is not exactly clean either.
I can think of two ways to clean it up, but they are both a bit extreme:
– ban political donations, and provide party funding through some other, neutral, means – this does happen in some countries
– decriminalise giving donations for honours so everyone knows that honours are given in return for donations, though might be subject to some basic kind of regulation.
Are there any more ways?
It may be possible to review all significant political donation over recent years to work out what level of donation guaranteed a nomination to the lords. If a potential donor knew what level of donation led to their elevation, there would be no need for a nod or a wink. If a donor who has given millions has not been nominated I would be interested.
The problem is with political donations was a whole. If political donations had to be given through an independent intermediary body which did not inform the recipients who the money came from, much of this could be avoided. Of course such an arrangement would probably have the unfortunate (?) effect of massively reducing political donations.
Perhaps we need new Law, more Law or a better Law that stops the current Law impersonating a colander. A Law that deals with pounds, Peerages and Observable Phenomenon.
Maybe in the absence of a “paper trail” an unwritten convention could be interpretted as evidence that Peerages can be for sale because of an established expectation.
A law that outlaws corruption – but that would need a political party in power that doesn’t actively want corruption.
No, we can use common law.
https://www.cps.gov.uk/legal-guidance/misconduct-public-office#_Toc519523916
I think we only need to enforce properly the laws that we have got, or at least we should try that first, before we start writing new ones.
Regular readers may be sick of me bringing this one up, but nobody is yet sick enough of it to suggest why I am wrong and the fact of it is that most, if not all of these things that we complain here about are acts of, or consequences of misconduct in public office which is an offence at common law and carries a maximum sentence of life.
https://www.cps.gov.uk/legal-guidance/misconduct-public-office#_Toc519523916