One of the most vital elements of any country which wants to claim to be governed by the rule of law is that those who break the criminal law are identified, and brought before a Court of Law, and if convicted of their crimes, are punished accordingly.
Society needs that level of certainty, because it assists in maintaining the efficacy of the State, and it facilitates the perception that no-one is above the Law, or as Dr Thomas Fuller wrote in 1733, ‘Be you never so high, the law is above you’.
These words were quoted by Lord Denning, probably the most celebrated English judge of the 20th century, in a case brought by John Gouriet in 1977 when the Attorney-General refused to give him consent to institute special legal proceedings to injunct the Union of Post Office Workers from boycotting all postal communications between Britain and South Africa as such actions would constitute criminal offences under the Post Office Act 1953.
When the Attorney-General argued that his discretion was absolute and not subject to judicial review, Lord Denning had this to say, and he said it acerbically:
"...What is to be done about it? Are the courts to stand idly by? Is the Attorney-General to be the final arbiter whether the law should be enforced or not? "
It is a matter of great constitutional principle. If the Attorney-General refuses to give his consent to the enforcement of the criminal law, then any citizen in the land can come to the courts and ask that the law be enforced. Denning continued;
"...This is an essential safeguard; for were it not so, the Attorney-General could, by his veto, saying ‘I do not consent’, make the criminal law of no effect."
Confronted with a powerful subject whom he feared to offend, he could refuse his consent time and time again. Then that subject could disregard the law with impunity.
"...It would indeed be above the law. This cannot be permitted. "To every subject in this land, no matter how powerful, I would use Thomas Fuller’s words over 300 years ago: ‘Be you never so high, the law is above you’..."
Lord Bingham, former Master of the Rolls has also used this famous aphorism when discussing the concept of the equality of all before the law – "Be you never so high, the law is above you," as Dr Thomas Fuller wrote in 1733 – along with the fair exercise of power by the executive, the right to a fair trial, and the application of law, rather than discretion, when deciding questions of legal right and liability.
It seems to me, and many others who write to me and tell me that they read my blogs, that we have entered an era where the law, and those who decide its application, are failing in their exercise of their duties. We have entered a period where the very danger of which Lord Denning warned, the existence of a powerful subject that the Government feared to offend and refuses to prosecute for criminal activity, has arrived!
When considering criminal proceedings, the Attorney General is de facto, acting as, or for the Government. What he or she decides is the decision of the Executive, and where prosecutions are not brought in cases where it is manifestly obvious that there is prima facie evidence that serious criminal offences have been committed, any failure to bring a prosecution, when in possession of all the salient facts available at the time, is effectively, a refusal!
As Lord Denning demonstrated, to refuse to prosecute in such cases, is to make the law of no effect!
One of my correspondents, is a lady called Carole. I won't identify her any further save to say that she writes to me regularly and is a fount of good ideas and is very supportive of my work. She herself is no mean communicator with the agencies of control and Government, and in particular when it comes to dealing with the criminal antics of the banks.
Recently she has been in correspondence with a number of agencies regarding the scandalous failure to bring any criminal prosecutions against any of the major banks for the myriad criminal offences they have committed, and for which, we as tax payers, have bailed them out of the financial consequences of their crimes.
In recent correspondence with a Government agency she has received a letter, from which she has given me her permission to quote at length.
I am doing this to demonstrate just how futile any attempts presently being made by Government are to bring these banking criminals to justice, and how, I believe, this paucity of concerted action reflects my belief that the Government, under Cameron, are really very scared of the power of the City, and are terrified that if they apply too much pressure, that the City will relocate themselves and their operations to a more understanding jurisdiction.
I am going to interpret this letter to show how meaningless it really is. I am afraid that it is typical of the kind of pathetic response that the citizen can expect from Government, written by some apparatchik in the 'Government Response Unit'. In response to Carole's litany of concerns that no prosecutions have been brought against these egregious banks, the response includes the following bromides!
"...As the Chief Secretary to the Treasury has made clear, the Government regards the Commission’s report* as an important one..."
This refers to the Parliamentary Commission on Banking Standards. The natural response must be '...Yes, and your point is..?' We all consider it important, but the real issue is what kind of outcome can we expect? The letter continues;
"...It rightly highlights the role of senior individuals in the problems that arose in our financial system over a number of years. The Government believes it is right that individuals should be held accountable for their actions, and it will be looking carefully at the Commission’s report to assess whether there is anything more that can be done in that regard..."
These words are so meaningless they are insulting. We all know it is right that individuals be held accountable, and there are so many ways in which they could have been dealt with, but nothing, absolutely nothing has been done about them. Why does the Government need to look carefully at the Commission's report, apart from the need for good manners? What are they going to recommend that wasn't already available to the Government already? Are they going to recommend more legislation, more regulation? How long will this take to implement? The letter continues;
"...In addition, the Financial Conduct Authority is due to publish a report into the failure of HBOS at a later date..."
So what, this is yet another report which is not yet finished, and which will take time to be considered before any lessons can be taken from it. The letter continues;
"...The Secretary of State for Business has instructed officials at the Insolvency Service to look into the FCA report when it is published to see whether there matters that could lead to further action..."
Any such action will be regarding technical offences under the Companies and the Insolvency Acts and will take a very long time to bring any actions, and yet more time will have elapsed without anyone being charged with criminal offences.
The letter continues;
"...The Government is very clear that we need to see a return to proper professional standards in the banking sector and to see the industry taking pride in those standards..."
Well, you could have fooled the ordinary people of this country. This statement is another insulting bromide which serves no purpose!
"...The Government recognises that we need to strengthen the arrangements for sanctioning misconduct and enforcing high standards in the banking industry and to ensure that wrongdoers are properly held to account. .."
Ditto, yet another piece of hot air!
"...Following the publication of the FSA of it its detailed report into the failure of RBS, the Treasury issued in 2012 a consultation document (Sanctions for the directors of failed banks) which considered the possible introduction of criminal sanctions for serious misconduct in the management of a bank and a proposal to bring in a rebuttable presumption that a director of a failed bank should not be suitable to be approved by a regulator to hold a senior position in a bank..."
This is the biggest load of bollocks of them all! There are already existing sanctions that can be brought against bankers for serious misconduct in the management of their bank. There are existing criminal charges under the Theft Act, The Fraud Act, as well as the Companies Act which could be applied, we simply do not have to waste any more time discussing and debating this situation.
This letter is completely insulting and makes no attempt to disguise its air of insouciance. It belittles Carole's attempts to draw to the attention of Government that they are failing in their responsibilities, yet she is the very member of the public identified by Lord Denning, "...any citizen in the land can ask that...the law be enforced..." She is asking that the law be enforced, and she is met with tripe like this!
As ordinary people and tax-payers, we are now completely disenfranchised, and even when we demand that our laws be enforced, we are simply 'dissed' by some civil service pipsqueak, cutting and pasting together a series of platitudes!
The real message behind this letter is that the Government is just trying to buy time, as much time as possible before it has to make any decisions about thinking about whether it might have to prosecute anyone. The outcome will be that having bought even more time, 'to consider the recommendations', which will take some months to undertake, the Government will report that possibly, with the benefit of hindsight, it might have been a good idea to prosecute certain selected individuals, but that it was now considered to be unlikely to obtain a safe conviction in such cases, due to the passage of time.
Having themselves been responsible for wasting the time, the Government will then make a lot of noise and generate more hot air, saying how important it is that such events must never happen again, but that we have all learned lessons and we need to draw a line under these events and move on, for fear of damaging the good name of the City of London.
Mark my words, something along these lines will eventually be cobbled together, but no-one will be taken to Court, and all the organised crime that has been committed by the City banksters will fade into oblivion, as if it had never happened.
The reason, as I have said before, is that the City has let Government know that they do not expect such issues to result in criminal charges, and that if the Government knows what is best for it, it will make sure that these problems go away.
It has been ever thus!