Independent Counsel? The British Attorney General and 'Cash for Honours' Commentary
Independent Counsel? The British Attorney General and 'Cash for Honours'
Edited by: Jeremiah Lee

JURIST Guest Columnist Richard Edwards, Principal Lecturer in Law at the University of the West of England in Bristol, UK, says that the ongoing 'Cash for Honours' investigation into whether benefactors of Britain's ruling Labour Party made loans or donations in order to secure peerages points up the problematic position of the British Attorney General when it comes to initiating public prosecutions against members of the very government of which he is a part…

Once more Lord Goldsmith, the Attorney General of England and Wales, finds himself at the centre of a growing political storm. This time it is not legality of the war in Iraq, but the “Cash for Honours” affair. The affair arose in the spring of 2006 when it emerged that leading donors to the Labour party had subsequently been nominated for life peerages. It was alleged that donors had made loans at preferential rates or had given donations in order to secure a peerage.

Under section 1(1) of the Honours (Prevention of Abuses) Act 1925 “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.” The Honours Act was passed in 1925 in order to prevent the sale of honours. During the administration of David Lloyd George honours had been sold with some gusto. No doubt Lloyd George, a Welshman, was unencumbered by the specious reverence that the English and Scots place on titles. Be that as it may, by 1922 the sale of these baubles had raised £3 million. Although the money raised was used for primarily for political purposes, destined in large part for Lloyd George’s National Liberal Party, it was rumoured that the former Prime Minister bought his country estate at Churt with the proceeds.

The 1925 Act was a reaction to what today would be called ‘sleeze’. The control of the money raised and the disreputable nature of many honoured created an air of corruption. The 1925 Act was intended to prevent this situation arising again. To date only one person has been tried and convicted under its provisions, that person being Maundy Gregory an associate of Lloyd George. Many were, no doubt, unaware of the existence of this law. The police are also investigating other possible offences under the Political Parties, Elections and Referendums Act 2000, and the Prevention of Corruption Acts. The latter requires the consent of the Attorney General before prosecutions can be brought.

The police investigation into the 2006 allegations is still ongoing. But the possibility that charges might be brought against leading members of the government has thrown into sharp relief the office of the Attorney General and his role as the head of public prosecutions in England and Wales. It has been argued that Lord Goldsmith cannot be involved in any decision to prosecute members of his own party because of a conflict of interest.

The AG is the member of the British executive who is charged with bringing prosecutions in the name of the Crown within England and Wales. As such he acts as the guardian of the general public interest in a quasi-judicial manner. It is an important tenet of the unwritten British constitution that prosecutions are not subject to political considerations. As Lord Scott observed in his recent report on arms sales to Iraq, “considerations of party political advantages or disadvantage should never play a part in decisions as to whether or not to prosecute.” (Para C3.8) Of course prosecutions often include offences of a political nature such as treason and of course proceedings under the Honours (Prevention of Abuse) Act 1925. Indeed, in 1924 the alleged political interference of the MacDonald Cabinet in the decision of the then AG Sir Patrick Hastings to withdraw a prosecution led to the collapse of first Labour administration. Much of the Campbell Case is shrouded in a fog of disputed facts. But the Cabinet Minutes of the 6th August 1924 are clear: “No prosecution of a political character should be undertaken without the prior sanction of the Cabinet being obtained.” This statement is rightly regarded as constitutionally improper and it is widely recognised and accepted today that there is no executive right to interfere in the decisions of AG to prosecute. Sir Patrick was later to remark that to be a law officer of the Crown was to be in hell. He turned his back on politics and returned to private practice.

Thus when considering whether or not to bring a prosecution, any clash of legal and party political opinions should be resolved by the AG in favour of the former. Without doubt it is for this very reason that the AG has by convention not traditionally sat in the British Cabinet, although he might attend Cabinet to advise on individual matters. The potential for conflict is too great. The conflict of legal and political duties/interests is one reason why the office of Lord Chancellor was reformed becoming in effect a minister of justice.

In the current Labour Administration Lord Goldsmith has attended Cabinet on a regular basis being de facto a member. Unlike the majority of recent Attorneys General Lord Goldsmith has not simply attended meetings for particular matters. Moreover, not only is he de facto a member of the Cabinet, he is also a donor to the party and the recipient of a life peerage from the Queen on the recommendation of Prime Minister Tony Blair. Of course, in Lord Goldsmith’s case there is no allegation of any impropriety, the AG being a man of the utmost integrity. But nevertheless, Lord Goldsmith finds himself in a difficult position with a clear conflict of interest. He may be called upon to consider whether a prosecution is in the public interest and perhaps even to lead that prosecution under the Honours Act against his Cabinet colleagues (former and present). No doubt any such prosecutions would be highly embarrassing and from a political viewpoint dangerous. But equally a refusal to prosecute might leave the government open to the sort of administration ending affair that occurred over the Campbell Case. It is very difficult to see how Lord Goldsmith can advise on proceedings over other parties in this affair. Whatever claims might be made to the contrary any decision simply will not appear impartial under the circumstances. No doubt for this very reason opposition politicians have described his possible involvement in the decision making process as “unacceptable”.

This, however, is not the end of the constitutional complications. Where conflicts of interest have arisen before, the AG has delegated the decisions to either the Solicitor General or the Director of Public Prosecutions. But in this instance both have ruled themselves out because of conflicts of interest. That leaves the Treasury Solicitor who might have been expected to take the decision. But again in this case he also suffers from a conflict of interest. This amazing state of affairs is unprecedented. The decision will instead be taken by an independent senior counsel. Even so the AG would not stand aside completely: “There can't be any question of an attorney general standing aside because of the special constitutional and indeed statutory responsibilities that I've got …. I'm responsible – I'm the only person that is answerable to Parliament – for the prosecutions that take place in this country."
This is undoubtedly correct. Just as the AG’s similar claim that he or the Solicitor General would need to consent to prosecutions brought under statutes requiring his approval. However, the real issue here, for which there is no immediate solution, is the conflict of interest.

Of course the police investigation may not reveal any evidence of possible offences. However, this affair has been far from academic so far as the office of AG is concerned. Like the House of Lords, the office of AG is a part of the British constitution that badly needs to be reformed. It is imperative that the independence of the office is preserved and protected.

Traditionally the AG has sat in the House of Commons, but recently there has been a shortage of adequately qualified candidates amongst its members. Appointing a member of the House of Lords must have seemed a logical alternative. It certainly ensured that the AG was accountable to Parliament. However, this method as we have seen has run into difficulties.

Arguably the time has come for the office of AG to be modernised. There are plenty of models available elsewhere in the common law world. In Ireland the AG is not a member of the government but is appointed on the recommendation of the Taoiseach (Prime Minister) and holds office concurrently with him. Whereas in Singapore the AG holds office under similar terms and conditions to those enjoyed by justices of the Supreme Court. But whatever model is in the end adopted, the independence of the office must be assured. Confidence in the impartial administration of the rule of law demands no less.

Richard Edwards is Principal Lecturer in Law at the University of the West of England in Bristol, UK.

Opinions expressed in JURIST Commentary are the sole responsibility of the author and do not necessarily reflect the views of JURIST's editors, staff, donors or the University of Pittsburgh.