Category: Constitutional Law

Why is it so difficult to prosecute for the sale and purchase of peerages?

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.)

 

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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.

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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.

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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.’

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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.

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The Prime Minister’s disregard for rules-based regimes

6th June 2021

This is just a short post today – more of a signpost – to point you towards an interesting and thought-provoking post by Hannah White at the Institute of Government.

Her post brings together various examples of the contempt in which the current prime minister holds a range of rule-based regimes – showing that for Boris Johnson, to echo Leona Helmsley’s supposed words, rules appear to be for little people.

There are, of course, a number of problems with the prime minister’s approach.

For example, a great deal of the constitution of the United Kingdom is based on self-restraint and convention – and, although many prime ministers have breached constitutional norms, none have done so as openly and unapologetically as the current prime minister.

Another problem is that – especially at the time of this pandemic and also as the United Kingdom adjusts to its post-Brexit future – there will be a need for various rules to be followed as well as made.

And it is difficult to insist on others keeping to the rules when the head of the government himself sees compliance with rules as, at best, optional.

And perhaps the biggest problem is that there is a sense of checks and balances simply not mattering any more – a further move towards a central command polity.

Of course, in our present day hyper partisan political culture, few will care about such things.

The constitution of the United Kingdom is now, essentially, whatever Boris Johnson can get away with.

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Hyper-partisanship and the lack of constitutional self-restraint are the twin poisons attacking our bodies politic

30th May 2021

Some thought it was all over when Joseph Biden won the presidency – Trumpism was defeated and there could be a return to political normality.

But Trumpism is continuing – even without the presidency and indeed even without access to Twitter and social media.

Trump has gone, but Trumpism has not.

This can be seen in the failure of sufficient Republicans to support a commission to report on the attempted insurrection on the 6th January 2021.

The practical reason for this failure appears to be the effect such a commission and its report will have on the American mid-term elections.

This hyper-partisanship and the lack of constitutional self-restraint is not good for the sustainability of the body politic of the United States – just as similar hyper-partisanship and lack of constitutional self-restraint is not good for the United Kingdom and other (hitherto) liberal democracies.

It poisons the well, it pulls the rug, and so on.

The immediate political gains are at the possible expense of longer-term constitutional viability and sustainability. 

And although constitutions can be robust and rugged old things – they are not invulnerable – and it is not inevitable that liberal constitutionalism will always win out.

Brace, brace.

Democracy vs Liberalism – the worrying but significant 2014 speech of Viktor Orbán

29th May 2021

One of the more complacent views of the last few decades is that there is a necessary link between democracy and liberalism.

The notion that if you believe in one then you believe in the other.

And, in turn, there is the converse view – that illiberals will tend to be undemocratic, if not actively anti-democratic.

This is assumption is evident in a spate of books over the last few years about the death of democracy where, if you read carefully, they describe the (possible) death of liberal democracy.

For – and this is still a shock for many – there is nothing necessarily liberal about a democracy.

It is possible – and indeed not uncommon – for a conservative bloc to mobilise sufficient support to prevail in elections.

There can sometimes even be sufficient conservative support for illiberalism to be majoritarianism.

Liberal democracy is only one form of democracy (and, also, of liberalism).

The notion that illiberals are also undemocratic, if not anti-democratic, is a comforting notion for the superficial liberal.

The truth is that in any democratic system there will be a great deal of opposition to liberal views.

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Here it is instructive to read this 2014 speech (in translation) by the Hungarian prime minister Viktor Orbán – who visited the United Kingdom this week.

It is a speech that should be read in full by any liberal and anyone else who wants to understand the illiberal turn in modern politics.

It is perhaps, in its way, one of the most politically significant speeches of recent years – though what it signifies is not pleasant.

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One of the things that stands out is in the speech that it is openly – explicitly – ‘illiberal’.

An exposition of liberalism is set out (and not altogether inaccurately) and then critiqued.

This dismissal of liberalism is unapologetic.

It is blatant, with no sugar-coating.

Orbán is an illiberal and he knows it, and he claps his hands.

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Another thing that stands out is that – unlike many Western (supposed) defences of (and apologies for) liberalism, it is not flimsy.

It is an articulation of an illiberal position.

The position being articulated is vile and wrong, but it is not superficial.

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A third thing that stands out, of course, is that it does not really explain, still less justify, the specific assaults on civil society in Hungary of his government – it is a speech which largely stays in the realm of the abstract.

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And the fourth thing which is striking about the speech is that – on the face of it – it is not an undemocratic speech – it is the speech of a politician who seems confident that there will be sufficient political support for illiberalism within a democratic system.

It is even a speech of a politician who does not see membership of the European Union as being incompatible with his illiberalism.

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This blog is written from a liberal, constitutionalist perspective.

But as a practical blog, it is not enough to disdain illiberalism, let alone deride it.

As the old saying goes: know your enemy.

Scoffing at Orbán – just like sneering at Donald Trump or Boris Johnson – is not a complete political answer to the challenges presented by modern illiberalism.

As long as these individuals and their parties can mobilise their bases, they will use political means to defeat or hinder liberalism, and they will claim to be democratic in doing so.

The ‘will of the people’ is rarely invoked by those who respect the wills of individual people.

And what happens when liberal democracy is, well, trumped by democracy itself?

*****

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How to treat the parliamentary evidence today from Dominic Cummings

26th May 2021

Dominic Cummings, the former assistant to the prime minister excites strong opinions – and it is difficult to escape those strong opinions when you write or think about him.

But the attempt should be made – as what he had to say at today’s remarkable parliamentary committee hearing may or may not be important.

The approach I would recommend is as follows:-

First – avoid confirmation bias – especially when it is from an unexpected source.

Many of the things he said confirm the prejudices of those critical of the current government generally and the prime minister in particular – and there was glee to hear him, of all people, say these things.

You should be especially wary of things which affirm what you think must be true.

Second – be aware of the selective nature of the evidence.

For example – some ministers were damned, but other ministers – such as the chancellor responsible for ‘eat out to help out’ and uncertainty over furlough payments – were not criticised

Nor was the cabinet office minister blamed for any difficulty in his department.

If this was a general critique of ministerial competence then it was lopsided – and almost vindictive.

Third – be aware also of motivation.

The former assistant to the prime minister wants, of course, to be vindicated – not least because of the Barnard Castle tarnish.

He has an understandable desire to have been right all along – and his failures only being that he did not do more sooner.

And fourth – there is the issue of honesty.

The former assistant to the prime minister once admitted that the £350million-a-week promise for the NHS was a convenient lie.

He was also one of those ministers and advisers who could not and did not sign the statement of truth (under pain of perjury) about the true reason for the prorogation – and it was the lack of such a witness statement that meant the government lost the case in the supreme court.

Indeed, the fact that if he said something untrue today may have been a contempt of parliament holds no fear for him – as he already has been held in contempt of parliament and with no consequences.

It was a win-win situation today from his perspective – he could take the benefit of absolute parliamentary privilege to make serious allegations, but with none of the sanctions for that benefit being misused.

Nonetheless, a lot of what he said ‘rang true’ – and it may be that there will be evidence that substantiates his many general and detailed claims of wrongdoing by others – some of which are highly serious.

And nothing he said should be dismissed out-of-hand just because he was the one who said it.

Everything he said may be true.

But everything he said, for the four reasons above, needs to be corroborated.

Today was great political theatre – but more is needed before any reliance can be placed upon this great political performance.

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The Crown and the Media – from phone hacking to the Dyson report

22nd May 2021

If anyone doubted the often indirect power of the crown in the public affairs of the United Kingdom then this week’s media news about the Dyson report is a useful reminder.

A reporter fabricated documents so as to engineer an introduction to a member of the royal family and then lied about it.

This sort of ‘blagging’ – as  some of those in the media would call it – was one of what was once euphemistically described as the ‘dark arts’.

And as a result of the exposure of this dishonesty, the future of the BBC (itself founded by royal charter) is now uncertain.

To throw the future of the United Kingdom’s state broadcaster into doubt requires a significant intervention.

It is an example of how the presence of a royal element to a story can electrify things.

And it is not the first time.

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The phone hacking scandal – which affected the press in a way that the Dyson report may affect the BBC – also came about because it had a significant royal element.

In short: the telephones of the royal household were hacked – just as the telephones of celebrities and newsworthy non-celebrities were hacked.

(Hacking was another of those ‘dark arts’.)

But because the target was the royal household, a different part of the metropolitan police became involved instead of those parts of the metropolitan police that the press then had a close (and mutually advantageous) relationship.

This in turn led to a police raid of a private investigator’s office, and the documents then seized in turn were a media-legal time-bomb which exploded when disclosed about the time of the Millie Dowler murder trial.

The story is set out in this thread by James Doleman, who reported on the trials (and with whom, I must add, I disagree on other issues):

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Had the mobile telephones of the royal household not been hacked then it is plausible that – even now – we would not know anything about the real extent of telephone hacking.

Such is the indirect power of the crown in our public affairs.

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No Home Secretary should be using police raids as photo ops wearing a quasi-police uniform

21st May 2021

Under section 1 of the Public Order Act 1936 it is an offence to wear political uniforms.

And section 90 of the Police Act 1990 provides that it is an offence to impersonate a police officer.

But politicians do like dressing up.

Here is a Labour politician – an elected police and crime commissioner in 2017.

His Conservative political opponents were scathing:

But partisanship is the foe of consistency, and so we now have a Conservative politician dressed in quasi-police kit:

The remarkable thing is that the Conservative politician in question is the actual Home Secretary.

We have the Home Secretary dressing up in a quasi-police uniform and going on operations where coercive force is used.

When I re-tweeted a gloss on this significant picture yesterday, I was told-off because the original tweet had got the nature of the police operation wrong:

https://twitter.com/davidallengreen/status/1395657008032931840

The nature of the offence, and of the police operation, is irrelevant.

The Home Secretary could be attending the arrest of the most notorious criminal in the land, and it would not make a difference.

There is something wrong – and crass – about Home Secretaries using such operations as photo opportunities.

And there is something sinister about doing it in a quasi-police uniform.

Not even Churchill did that over a hundred years ago as a similarly opportunistic Home Secretary (and he was more entitled to wear a uniform, as a former soldier):

(And even John Terry had some claim to be able to wear his Chelsea kit in that famous 2012 incident.)

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Exploiting – indeed weaponising – police operations for political purposes is unwise and illiberal – whether the politician is Conservative or Labour or even Winston Churchill.)

It points to the misuse and abuse of law and law enforcement – that certain things are being done not for the straight purposes of justice and due process.

It also speaks to the increasing authoritarianism in our political culture.

There is, of course, a good reason why impersonating a police officer is banned.

And there is a very good reason why in 1936 – of all years, if you think about it – the wearing of uniforms for political purposes was banned.

Nationalistic populist authoritarianism is something to be opposed, not encouraged.

And that, at least, was something Winston Churchill (despite his many manifest faults) got more right than his current day Conservative successors.

*****

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What is Force Majeure? And why is it now being mentioned in the context of Brexit?

18th May 2021

A historian of ideas – probably Isaiah Berlin – once averred that most philosophical systems were ultimately simple affairs.

What made them complicated, it was said, were the elaborate defences and anticipations of objections so as to make the arguments advanced harder to attack or dismiss.

I have no idea if this is true, as I have no head for philosophy, but I have often thought the same can be said for contracts.

Most agreements are also relatively simple – and most of us, every day, enter into oral contracts which are nothing more than ‘I give you [x] in return for [y]’.

Written out, such contracts would not need to be longer than one sentence – a single clause.

What makes a legal agreement complicated – and what can make a written contract go on for hundreds of pages of clauses and schedules – are the provisions dealing with what will happen if one party does not do [x] or the other party does not do [y].

This is because most written contracts are not there for when things go well: they are there for when things go badly.

The more provisions that are in a contract, the more allocations of risk and protections for the parties if there are problems.

For high-value or significant agreements, teams of lawyers will painstakingly (and often expensively) go through every possible and foreseeable eventuality, and will then allocate risk accordingly as between the parties.

There will also be detailed provisions setting out the processes for resolving and remedying problems.

In most circumstances, those provisions will not ever be used.

(As a general though not universal rule, the more effort that goes into putting a contract together, the less scope for genuine disputes later.)

But sometimes a thing can happen to disrupt an agreement that has not been addressed in the agreement.

This disruptive event can have three qualities: (1) it will be outside the control of the parties (else all you would have is a potential breach); (2) it will be outside of the allocations of risk in the agreement (else the agreement already deals with what will then happen); and (3) it will affect the performance of obligations under the agreement (else it would not matter).

In legal language, such a disruptive event is said to ‘frustrate’ the agreement.

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In English contract law, such frustrations often lead to unfair and uncertain results – and every law student will know of the so-called ‘coronation cases’.

Lawyers elsewhere, however, approached this sort of predicament differently and developed the doctrine of ‘force majeure’.

A force majeure event is a thing that (1) is outside the control of the parties; (2) is outside of the allocations of risk in the agreement; and (3) affects the performance of obligations under the agreement.

If the doctrine applies there is then some certainty of what will then happen in the event of a force majeure event – sometimes the consequences can be agreed between the parties, or the consequences may be provided for under the general law.

Force majeure, however, is a residual thing – if the parties have foreseen the particular risk and allocated that risk then the terms of the agreement should take priority.

This means (generally) the more detailed the agreement, the more limited the scope for force majeure.

The analysis set out by me above is from the perspective of an English commercial lawyer but the doctrine also exists in what is called ‘public international law’ – that is the law that regulates relations between countries (and also international organisations):

You will see the public international law document quoted provides that a thing cannot be a force majeure event if (a) it is because of the conduct of the state seeking to rely on it and (b) the risk of it happening has not been allocated.

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What all this means is that it is often difficult in practice to rely on force majeure when there is in place a detailed and specially negotiated agreement.

This is because the parties will have foreseen and addressed most practical problems.

And even if there is a force majeure event, that also does not mean it is a ‘get out of an agreement free’ card – as all that may result is a temporary relief from fulfilling an obligation until the force majeure event is over.

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The reason why force majeure is in the news is because David Frost, the United Kingdom minister responsible for Brexit negotiations, appears to think that force majeure can be relied on to relieve the United Kingdom from its obligations under the Brexit withdrawal agreement and its Northern Ireland protocol.

The news report says:

‘Force majeure is a legal concept through which a party can demand to be relieved of its contractual obligations because of circumstances beyond its control or which were unforeseen.

‘The suggestion is contained in a 20-page letter the UK has sent to the European Commission.’

To which the response should be: good luck with that.

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In practice, any reliance on the doctrine of force majeure by the United Kingdom will come down to two particulars: (1) what is the (supposed) particular force majeure event, and (2) what is the particular obligation that is (supposedly) affected by that event.

Until this is known, one cannot be completely dismissive.

But.

It is difficult to believe that there is any event that (1) affects the performance of a particular obligation under the Northern Ireland Protocol which (2) is not within the control of one of the parties and (3) is not addressed in the protocol.

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And in response to the thread on Twitter on which this blogpost was based, this scepticism was endorsed by Jonathan Jones, who was the United Kingdom’s chief legal official during the Brexit negotiations:

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That the United Kingdom government had not thought through or cared about the detail of the withdrawal agreement was not unforeseeable.

It was, to use another technical legal term, bleedingly obvious.

It is difficult to conceive of anything that could be a force majeure event that is not already subject to the provisions and processes of the Northern Ireland Protocol.

On the face of it, therefore, the resorting to ‘force majeure’ by the United Kingdom looks desperate – a makeweight argument deployed for want of anything more compelling.

There is, however, the delicious legal irony in the circumstances of the United Kingdom seeking to rely on a French legal doctrine used to cure the inadequacies of English law-making.

*****

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The ‘state’ with no clothes on

16th May 2021

When I was young I had an illustrated book about kings and queens – but the one illustration which stayed with me was not any of the formal mannered portraits.

Instead, it was this engraving by the novelist William Makepeace Thackeray:

It still dominates how I think about kingship, queenship and indeed any formality of power.

Strip away the paraphernalia of dominance – not just the garments but also the symbolism and the rhetoric and the concepts – and you just ultimately have people.

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A great deal of what we posit as politics and law – almost all of it – exists only in the mind.

They may well have grave real-world effects – but concepts such as the ‘state’, ‘government’, ‘markets’ and ‘society’ are, just that, concepts.

And without those concepts we are all just as the French king in Thackeray’s engraving.

If everyone suddenly stopped believing in the legitimacy of the ‘state’ there would be little that those with political power could do, other than to resort to coercive power.

But even totalitarian regimes usually make some effort at legitimisation – as resorting to pure repression is demanding and unsustainable in the medium- to longer-term.

The anarchist may well want to ‘abolish’ the state – but the ‘state’ has no real existence other than in the minds of people.

All it takes is for people to believe differently about government and the law, or to believe nothing at all.

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This is one reason why ‘legitimacy’ matters – and, because legitimacy matters, it is also why constitutionalism matters.

Constitutionalism is the notion that there are certain rules and principles of political conduct that have priority over mere political expediency and party advantage.

Once the institutions and processes of the state are stripped of their legitimacy then there is little to no reason for people to accord respect and deference to government and law.

And when people no longer see a government and its law as legitimate then, absent a programme of coercion, there is the pre-condition for a political – even social – crisis.

Sensible politicians of the right and left once knew this.

The reckless assaults on constitutional norms in the United Kingdom and the United States are the political equivalent of playing with fire.

And so there is immense danger when there are politicians like Donald Trump and Boris Johnson that are hyper-partisan, undermining the legitimacy of (with Trump) elections and (with Johnson) the separation of powers and checks and balances.

This may not end well.

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The age of the three referendums – why we are only partly through this significant constitutional moment

15th May 2021

One of the more refreshing shifts in historiography was when historians turned from ‘the English civil war’ to ‘the war of the three kingdoms’ – acknowledging that the conflicts of the mid-1600s were more to do with the politics and conflicts of Scotland and Ireland than a purely English affair.

Future historians looking at the age of Brexit may similarly have to see how Scotland and Ireland were causes of immense political instability and potential constitutional crisis.

For the referendum we all know about – and the one we are all preoccupied about – may for historians seem to be just the first of three.

And those historians may group together the 2016 Brexit referendum with a yet-to-come Scottish independence referendum and border poll in (Northern) Ireland.

It will be the fall-out of the three referendums taken together which will be the end and beginning of a chapter in our constitutional and political history.

This is not to predict the outcome of those referendums – or the outcome of what would then (if anything) that follows those referendums.

In this time of unwelcome and unexpected political surprises, few can be confident in forecasting what things will happen next.

But the 2016 referendum may be seen as just one move of a gear in something more complex – the recasting of the state of the United Kingdom.

The one thing which may be certain is that the (perceived) mandate of any referendum result now has a greater charge than before.

Brexit was carried through at speed and with no real planning in the face of opposition (and of reality) because of the purchase of a referendum result.

It is therefore difficult to deny, if either or both of the upcoming referendums (if they happen) vote for change, that such a change can be opposed on the basis of a higher priority for the will of parliament.

We may find that one cannot pick and choose the ‘will of the people’ – if there are to be referendums, then the expectation is now (more than before) that the results will be implemented.

But we also may find that the experience of Brexit will turn people against voting for further drastic changes – that the next referendums are reactionary rather than radical in their nature.

Of course: there will be those historians – like there are for the civil wars – who will say, with hindsight, that the outcome was inevitable all along.

Those of us here at the time, however, can only seen uncertainty and multiple contingencies.