A modern-day knight made to suffer a medieval punishment

The United States Constitution is one of the few really great documents ever compiled by politicians. It is crisp and short and clear, and it is on the side of the citizen rather than the state. I keep it by my desk.

Just after the news that Fred Goodwin was to be stripped of his knighthood, I happened to be riffling through it, and my eye fell on this sentence from Section 9: “No Bill of Attainder or ex post facto Law shall be passed”. A Bill of Attainder was a device of the powerful in pre-modern England. If the King and his government decided that they did not like someone, they would get him “attainted” (which means “stained”) by Parliament. The Bill would punish him for some supposed offence without giving him the chance to be heard in court. It stripped him (and sometimes his descendants) of his lands and titles. It was a political device.

An ex post facto law, of course, is a law that enables someone to be punished for an offence which, when committed, was not an offence. It is therefore blatantly unjust, and also, often, political.

Poor Fred Goodwin must wish he were an American citizen (although, since the US Constitution also states that “No title of nobility shall be granted by the United States”, he would not have got a knighthood there in the first place). He has been, in effect, attainted. And he has been subject to ex post facto judgment. What he was doing with the Royal Bank of Scotland when he was knighted in 2004 was considered fine and dandy by the then British government. Now he is being punished, because the wind has changed.

Indeed, Mr Goodwin is being even more unfairly treated than those rebel earls who were attainted under the Tudors. At least they had a chance for their case to be debated in Parliament. Mr Goodwin’s good name was stained for ever by the Honours Forfeiture Committee, stuffed with senior civil servants (almost all of them knights or dames, needless to say). He had no right to be consulted, represented by lawyers, or considered by Parliament.

The committee is repeatedly described by politicians as “independent”, but since it is governmental, it cannot be so. In reality, it acted only because of pressure from the Prime Minister. It waived its own strict rules about the criteria according to which honours are withdrawn, and replaced them with much vaguer ones. Under the chairmanship of the new head of the Civil Service, Sir Bob Kerslake, supported by the new Cabinet Secretary, Sir Jeremy Heywood – neither of whom, presumably, has any experience of this sort of thing – it decided that RBS played “an important role in the financial crisis of 2008-2009”, and therefore Sir Fred should revert to just plain Fred.

If that is the criterion, The Right Honourable Gordon Brown MP should not lose just his seat, his place in the Privy Council and whatever commemorative gold fountain pens he may have received for making boring speeches in Davos. Attainting is too good for him. Since we are reverting to medieval punishments, a bit of good old hanging, drawing and quartering would seem appropriate.
One must, I admit, be realistic. Governments often find themselves in tight corners, and the overhang of bankers’ pay, bonuses and gongs into the era of recession is one such for the Coalition. It is part of the role of senior civil servants inconspicuously to help their masters out of such corners. It is the job of the cabinet secretary, in particular, to be like Jeeves with Bertie Wooster. He must help his boss divert the indignant aunt of public opinion with the necessary fibs, flattery and brainy schemes.
So yesterday I asked Lord Armstrong, cabinet secretary under Mrs Thatcher, and the man who recommended that the traitor Anthony Blunt be stripped of his knighthood, what he thought. Picking his words with mandarin care, Lord Armstrong told me that, if he had been asked to consider Sir Fred, “I should have said that this goes beyond the criteria.” The Government would be within its rights to change the criteria, he went on, and the committee could help it do so. But this should happen before any individual case, and with the agreement of the Palace, to avoid embarrassing the Queen. Otherwise, the problem is publicly dumped on civil servants, whose committee then becomes – my phrase, not Lord Armstrong’s – a kangaroo court. Then I asked the same question of his successor, Lord Butler of Brockwell, and his answer was virtually identical.

Since honours are not jobs, and are conferred by the gracious pleasure of the Sovereign rather than any contractual process, it may be that Mr Goodwin has no legal redress. Besides, he may prefer to remain quiet. But if I were him, armed with his still considerable private collection of good old British banknotes and with no more reputation left to lose, I would try to go to law. I would seek judicial review of the process by which I had been attainted. I would invite Sir Bob Kerslake to tell the court what 10 Downing Street had said to him before the whole process got under way. And if the judges found that the committee had behaved improperly, I would then apply to the Honours Forfeiture Committee to have Sir Bob and his colleagues stripped of their knighthoods.

Maybe none of this matters. Maybe Fred Goodwin is such a disgraceful fellow that we are all entitled to kick him around as we please. But I cannot help thinking that the provision against attainder is in the US Constitution for a good reason. It is to stop whoever happens to be in power at any one time from taking it out on whomever he dislikes who isn’t. The fact that the victim may be unmeritorious is not the point. The point is that the rule of law is what distinguishes us from the beasts. Fred Goodwin got knighted because of crony capitalism. It does not make things better if he is un-knighted by crony anti-capitalism.

But let us look ahead, and think, as David Cameron has done throughout, politically. By shaming Mr Goodwin and creating the pressure that made Stephen Hester give up his bonus, the Prime Minister has placed himself on the side of pubic opinion. He has made it easier for him to attack bonuses in future. He has blunted a Labour attack which had tried to make him seem incapable of responding to public outrage. So far as it goes, all this will help him.

But one of the odd things about being populist is that it generally does not make you popular. It is often the way that the mob, seeing leaders who try to ape it, grows disgusted. The most successful politics is the unpopular action which is then proved right, not the popular action which later looks a bit tawdry.

The other question is one for what The Times, when it appealed to them, used to call “top people”. If, after all this, you are a chief executive wondering whether to locate your big company in Britain, will you feel welcome? If you are a businesswoman asked to rescue a government enterprise, a civil servant wondering whether to try to become a permanent secretary or leave for the private sector, or a scientist called on to run a quango, will you think, “Well, I may get less money, but I shall command respect, have the loyalty of ministers and be knighted if I do the job well”?

I think we know the answer.