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.
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