The Treasury Solicitor

I must confess that I had never heard of Ine, King of Wessex, until my attention was drawn to him by an anonymous historian of the Treasury Solicitor’s Office (“the anonymous historian”), whose monograph “Our History” starts:

“There is a long tradition of legal adviser to the Crown and the State going back as far as the reign of king Ine in the sixth century.”

My appetite whetted, I went in search of more information about this admirable monarch. My researches show that he succeeded Cӕdwalla as King of Wessex and probably reigned there as king between 689 and 726. He probably issued his code of laws in 694, possibly in collaboration with King Wihtred of Kent. The earliest Anglo-Saxon law code to survive seems to have been that issued by King Ӕthelbert of Kent in about 603, which was followed by the code issued in the names of Hlotherhere and Eadric of Kent in the 670s or 680s. Ine, therefore, was a bit of a trail-blazer so far as the West Saxons were concerned. Although his laws were issued by the Saxon king of a Saxon kingdom, the term used in the laws to define Ine’s Germanic subjects is Englise.

The prologue to Ine’s laws, which have only survived because they were appended to the better-known Code of laws issued by Alfred the Great (of cake-burning fame), lists his advisors as Bishops Eorcenwald and Hӕdde and Ine’s own father, King Cenred (who may have shared Ine’s kingship for a short period). What happened when the advisors disagreed I do not know, and like the anonymous historian I am happy to skip nearly a thousand years to the time when John Rushworth was appointed in 1661 as

“the solicitor for negotiating and looking after the affairs of the Treasury.”

This latter day Eorcenwald became a solicitor in Berwick on Tweed in 1638, entering Lincoln’s Inn in 1640, the year in which he started work as a clerk assistant at the House of Commons. He supported the Parliamentarians in the Civil War, becoming secretary to Thomas Fairfax in 1645 and personal secretary to Oliver Cromwell following the execution of King Charles I[1]. When Cromwell became Lord Protector in 1653, Rushworth was promoted to Registrar of the Court of Admiralty, and after the shift of power from Cromwell’s son Richard in 1660 Rushworth became Secretary of the Council of State, which negotiated the revival of the monarchy, under which Rushworth was initially assigned to the office of Treasury Solicitor.

Somehow or other he survived the carnage of the regicides (seemingly by adopting the refrain of Manuel in Fawlty Towers: “I know nothing”). Wisely he returned to Berwick, but he retrieved his fortunes somewhat when the colony of Massachusetts employed him as its agent at a salary of twelve guineas a year and his expenses (although someone rudely said of him in 1674 that all that Rushworth had done for the colony was not worth a rush). He died in the King’s Bench Prison in Southwark, where his memory decayed through taking too much brandy to keep up his spirits.

The anonymous historian tells us that after Rushworth’s time early Treasury Solicitors undertook cases for the Crown, for Secretaries of State and for the Attorney General. Following the defeat of the rebellion led by Bonnie Prince Charlie at the Battle of Culloden, King George II commissioned the Treasury Solicitor “to forthwith repair to such places as the Attorney General shall direct in order to make proper enquiries into their (the rebels’) several cases, and to take care for carrying out the said prosecutions in the most effectual manner.”

By 1842 the office of the Treasury Solicitor was handling the affairs of 13 out of 23 Departments of State, and his status was transformed by the Treasury Solicitor Act 1876 which turned his legal personality into that of a corporation sole. A committee headed by the Master of the Rolls (Sir George Jessel) had recommended that the Treasury Solicitor should be a common head of profession

“who would act as a referee in all matters of practice, and would be adviser to the Government in all that concerned the organisation of the legal departments of its offices.”

In other words, all the departmental solicitors now had a common head. even though there was not to be a single office for the conduct of all government legal business. Between 1885 and 1908 the Treasury Solicitor also held the office of Director of Public Prosecutions.

The ne corporation sole was assigned rooms in the new Royal Courts of Justice (RCJ) as a matter of convenience when they were opened in 1882. It is said that when these rooms were renovated, it proved impossible to remove the original painted numbers from Room 666, despite many efforts at considerable cost. It was also said to be the coldest room at the RCJ: I do not know its current fate.

The next major change came in the early 1970s. With the creation of new Government Departments, some of them with their own legal staff, the first Parliamentary Ombudsman (Sir Edmund Compton) was asked to advise what should be the practice to be adopted in future in terms of the management of Government lawyers. He recommended that litigation and conveyancing should be centralised under the Treasury Solicitor, who would be the head of a legal career service, while the Law Officers’ Department should remain a small secretariat, staffed largely by secondments from other departments. Lawyers should be part of the new departmental team In departments where legal advice was of continuous importance, whereas in departments where this was not the case advice should be sought from the Treasury Solicitor as and when it was required.

When a department needed representation in the courts, it would either possess its own standing junior counsel or it would use the Treasury Devil. Sometimes these offices would be combined. For instance, when “Spider” Cumming-Bruce was appointed Treasury Devil in 1959 he also became Junior Counsel to the Board of Trade, the Board of Customs and Excise, the Ministry of Health and the Ministry of Housing and Local Government. For a time the role of standing junior counsel to the Ministry of Labour/ Department of Employment was a member of my chambers at 2 Crown Office Row: first Tom Bingham, who succeeded Gordon Slynn in that office in 1968, and then Peter Scott (a future Chairman of the Bar) who held it until he was appointed to silk in 1978. I followed Peter Scott between 1978 and 1981 in the sense that I did all the same work as he did in my guise as a member of the new panel of Junior Counsel to the Crown, Common Law, which was formed for the first time (at Harry Woolf’s suggestion) in 1978.

Since 1st April 1991 most of the office’s activities were placed on a repayment basis: the effect of this change, so far as unsuccessful “paying parties” in litigation are concerned, has had to be litigated in the courts). It has to recover its full costs by billing other Government Departments for its services.

It became formally an Executive Agency in 1996. It was renamed the Government Legal Department on 1 April last year.

 

Holders of the Office of Treasury Solicitor in the last 40 years have been:

Basil Hall (1976-1980)

Michael Kerry (1980-1984)

John Bailey (1984-1988)

James Nursaw (1988-1993)

Gerald Hosker (1993-1995)

Michael Saunders (1995-1997)

Anthony Hammond (1997-2000)

Juliet Wheldon (2000-2006)

Paul Jenkins (2006-2014)

Jonathan Jones (2014- )

For the sake of brevity I have omitted all the KCBs (and one DCB), awards of honorary silk and other honours with which these very senior government lawyers have been festooned. Eorcenwald, Hӕdde and Cenred would have been proud of them all.

Out of this top ten I knew John Bailey best. He accompanied me on my very early successful rescue mission in aid of the Special Commissioners for Income Tax about which I have written elsewhere, and he was Deputy Treasury Solicitor and head of litigation during my time on the Treasury panel. Later still, he instructed me to act as Counsel to the Sizewell “B” Nuclear Power Station Inquiry (1983-1985).

I met Gerald Hosker in 1987 when he was still Solicitor to the Department of Trade and Industry and was searching for a replacement Companies Act Inspector a few weeks after the Inquiry into the 1983 takeover of Harrods by the Fayed brothers had commenced[2]. Later he told me that whereas in that post he had been at the beck and call of departmental ministers morning, noon and night, the more hands-off role of the Treasury Solicitor enabled him to be more successful in keeping ministers at arm’s length except when they really needed his advice.

Juliet Wheldon, the first female Treasury Solicitor, died all too young three years ago. I met her when she joined the Appeal Committee for the Bingham Centre for the Rule of Law, on which I had served from its inception due to my 50-year-old friendship with Tom Bingham (who died just as the appeal was achieving its initial targets). By that time she was legal adviser to the Governor of the Bank of England.

The effervescent Paul Jenkins I first met when I was chairing the Law Commission and he was at the Department of Culture, Media and Sport. We were then on a doomed quest to see if it was possible to clarify the workings of the criminal law when people get knocked down, kicked in the face, have their heads bashed in or their eyes almost gouged out in the name of sport. I took to him immediately and he has remained a good friend (and is, incidentally a compulsive twitterer as @sirpauljenkins in his retirement from government service). When I visited the offices in Kemble Street a few years ago to conduct a mediation while he was still Treasury Solicitor I found Paul working with everyone else in an open plan office just outside my mediation room.

High intelligence, legal acumen, tact, wisdom and highly advanced inter-personal skills are some of the qualities needed for this demanding job.   These have been held in abundance by all the recent holders of this unusual office, and we have been very fortunate.

[1] Earlier, he had advised that the original draft indictment against the King needed to be made a good bit shorter. See Geoffrey Robertson, The Tyrannicide’s Brief.

[2] My predecessor, the late Philip Heslop QC had to stand down after the Fayeds had expressed concern on an issue of perceived bias.

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s