Last month I wrote a blog discussing the constitutional implications of the Post Office Bill (now the Post Office (Horizon System) Offences Act 2024). In that blog, I argued that primary legislation was the most appropriate and democratically legitimate way to quash the wrongful convictions of the victims of the Post Office Scandal. Although constitutionally unusual, it was not constitutionally inappropriate. That conclusion was reached, at least in part, on the basis that the Bill would be subject to meaningful scrutiny in Parliament. However, since the blog was published in late April, the Prime Minister announced a ‘snap’ general election to be held on 4 July 2024. As the Post Office Bill was still before Parliament at this point, it was rushed through its final legislative stages and passed into law during the ‘wash-up’ period. It received Royal Assent on the 24 May 2024, the final sitting day before Parliament was dissolved ahead of the election.
In this blog I intend to initially explore the wash-up period – explaining what it is, which bills were passed during it and why it is controversial. In particular, I focus on the passage of the Post Office (Horizon System) Offences Act 2024 and highlight why subversion of scrutiny during the wash-up is more damaging for constitutionally controversial bills, like this one, than ‘normal’ bills.
The wash-up period: practicality vs principle
The process of law-making in the days between the calling of a general election and the dissolution of Parliament is known colloquially as the ‘wash-up’. In the wash-up, bills that have been introduced to Parliament, but not yet received royal assent, may be fast-tracked through their remaining legislative stages in order to reach the statute book before Parliament is dissolved. Importantly, not all outstanding legislation is ‘saved’. If legislative time is limited, some bills are lost at this stage and it is up to the government to negotiate with the main opposition party (currently the Labour Party) to determine which bills ought to be prioritised. Often, a government is willing to negotiate and accept opposition amendments in order to ensure the passage of valuable bills. This essentially provides the main opposition party with a veto power over any controversial clauses and provisions.
Following Rishi Sunak’s election announcement on 22 May 2024, the following bills received royal assent within two sitting days:
- Leasehold and Freehold Bill;
- Victims and Prisoners Bill;
- Digital Markets, Competition and Consumers Bill;
- Media Bill;
- Pet Abduction Bill;
- Paternity Leave (Bereavement) Bill;
- British Nationality (Irish Citizens) Bill; and
- Post Office (Horizon System) Offences Bill.
Whereas the following bills were abandoned by the Government prior to Parliament’s dissolution:
- Tobacco and Vapes Bill;
- Renters (Reform) Bill;
- Football Governance Bill;
- Criminal Justice Bill;
- Offshore Petroleum Licensing Bill;
- Data Protection and Digital Information Bill;
- Economic Activity of Public Bodies (Overseas Matters) Bill;
- Arbitration Bill;
- Terrorism (Protection of Premises) Bill; and
- Sentencing Bill.
Which bills are prioritised during the wash-up is dependent upon on a confluence of factors including but not limited to: the time available, legislative content, policy principle and administrative necessity. Naturally, the decision to drop certain bills over others can prove to be controversial in practice. For example, the failure to prioritise ‘Martyn’s Law’ has generated significant criticism, as has the decision to drop the Renters (Reform) Bill which would have honoured the Conservatives’ manifesto promise to abolish no-fault evictions. Criticisms are further strengthened by an evident lack of transparency and accountability during the wash-up period. Here, neither government nor opposition are obligated to justify why certain bills are prioritised over others. Only if an MP addresses the media directly about a particular bill or an official statement is issued will the public receive any sort of insight into the ‘behind closed doors’ negotiations. The negotiations also tend to be exclusionary in nature, as backbenchers, minority party MPs and cross-bench peers are all excluded from deliberations. It is therefore easy to see why the wash-up period has previously been described as an undemocratic ‘squalid stitch-up’ between unaccountable frontbenchers.
The flip side to this argument is, of course, that the wash-up period constitutes a pragmatic solution to the problem of drawing parliamentary proceedings to a satisfactory end ahead of a general election. Surely it is better for some legislation to be passed, rather than losing all outstanding bills at the point of dissolution? As Fox and Korris remark, although the wash-up process is necessarily messy, ‘it does not automatically follow that it is detrimental to the public good and contrary to the interests of Parliament and the political process’.[1]
However, pragmatism does not automatically justify the most constitutionally concerning characteristic of the wash-up period: the subversion of legislative scrutiny. Due to the speed at which bills are required to move during this period, MPs and Peers are constrained from comprehensively reviewing, debating and amending them. Thus, the various benefits that effective scrutiny is intended to achieve, such as ensuring the production of workable, accessible, coherent and democratically legitimate laws, are jeopardised.
In particular, during the wash-up period, Parliament is unable to hear external evidence on the workability of legislative proposals, and parliamentary select committees are unable to report on a bill prior to its passage. The loss of these scrutiny mechanisms inevitably impacts the quality of the legislation ultimately enacted. Such issues are exacerbated when the bill being passed is one of constitutional importance. Rather than subverting scrutiny, a constitutionally sensitive bill should be subject to the highest level of scrutiny possible. Significant concerns were raised ahead of the 2010 general election, when two high profile bills (the Constitutional Reform and Governance Act 2010 (CRAG) and the Digital Economy Act 2010) were rushed through Parliament in the final days before dissolution. CRAG enacted significant constitutional change in the UK, whilst the Digital Economy Act introduced a regulatory framework around digital communication. Despite impacting the lives of millions of citizens, both bills avoided effective scrutiny due to the decision to fast-track their passage during the wash-up. In principle, neither of these bills were suitable candidates to enter the wash-up period.
The passage of the Post Office (Horizon System) Offences Act 2024
We return, then, to the passage of the Post Office Act 2024 (POA). As noted at the start of this blog, the POA was rushed through its remaining legislative stages and received Royal Assent on 24 May 2024. It is worth noting here that even before the general election was called, and the wash-up period commenced, the POA was already subject to a somewhat expedited legislative timetable. This was to reflect the apparent need to overturn the wrongful convictions of the victims of the Post Office Scandal urgently.
As per my previous blog on this topic, due to the evident constitutional importance of the Bill, even limited fast-tracking raised red flags in regard to the subversion of meaningful scrutiny. By way of brief explanation (and in summation of my previous blog), the decision to overturn criminal convictions by way of primary legislation is i) unprecedented and ii) arguably undermines the separation of powers. For these reasons, some have argued that enacting primary legislation is constitutionally inappropriate and risks setting a dangerous precedent. Despite these concerns, I argued that enacting primary legislation was a constitutionally appropriate way to proceed as, ultimately, Parliament is sovereign. Enacting primary legislation also provides parliamentarians with the opportunity to scrutinise the proposals – ensuring the workability of the legal policy, addressing constitutional concerns and enhancing democratic legitimacy. However, I was clear that MPs and Peers had to be alive to the risks associated with fast-tracking, as ensuring effective scrutiny, despite the ‘emergency’ nature of the Bill, was key.
Prior to the calling of the general election, the early signs in relation to scrutiny were good – MPs and Peers were engaging critically with the content of the Bill, various amendments had been tabled, and the House of Lords Constitution Committee was due to report. Unfortunately, once the election was called, and the wash-up period commenced, parliamentarians’ meaningful scrutiny was unavoidably negated. The Bill was ultimately rushed through its committee stage (and all other remaining legislative stages) in just one sitting day on the 23 May. Regrettably, due to the change to the Bill’s timetable, the Constitution Committee were unable to publish their final report prior to its passage in Parliament. However, they have subsequently published it regardless, noting that they still ‘wish to put on record the Committee’s views on the Bill’.
The report, published online on 24 May, begins by stressing the Bill’s significant constitutional implications, highlighting the threat it poses to fundamental principles including the separation of powers and the rule of law. In the Committee’s view, parliamentary sovereignty does not automatically justify direct legislative intervention in the judicial process due to the consequential subversion of other foundational principles. Ultimately the Committee asserts that ‘under our constitution it is impossible for Parliament to behave unlawfully since its lawful power is unlimited, but it can behave unconstitutionally’. The report also calls attention to the unprecedented nature of the Bill means that ‘by its existence’ it ‘may be treated in the future as a precedent’ and as such ‘its profound constitutional novelty deserves careful consideration’.
The report concludes by issuing the following advice to the House of Lords:
the constitutional propriety of the Bill depends in large measure upon whether or not there exists a feasible alternative, allowing corrective justice through the normal appellate process, that would be as swift and comprehensive in its effects as the Bill itself. The House must decide whether the unique facts of the Horizon debacle require a legislative response of the kind contained in the Bill, and whether these exceptional circumstances also make it highly unlikely that the Bill will be cited as a precedent for future legislation.
I do not wish to re-engage with the debate here around the constitutional appropriateness of quashing criminal convictions via primary legislation, the point I seek to make is that Parliament ought to have had the benefit of debating this report, and the issues it raises, prior to the POA’s enactment. Not only does the report clearly remind the House of the Bill’s constitutional uniqueness, but it suggests a number of potential amendments. The POA would most likely have passed regardless, due to the cross-party support it received, but amendments may have been tabled and alternatives more closely considered as a result of the Committee’s report. The extreme fast-tracking of the Bill during the wash-up period destroyed any opportunity for further scrutiny of the Bill and removed the possibility of amendment. Thus, the passage of the Bill reiterates the point made earlier in this post: that bills of such constitutional important are not suitable to enter the wash-up.
It is possible that an elegant solution to this particular case did not exist. Given the need to deliver justice to the victims of the Post Office Scandal swiftly, the Bill could not simply be lost during the wash-up and so fast-tracking was perhaps unavoidable. That being said, the point of principle remains – given the constitutionally controversial nature of the Bill, scrutiny should have been enhanced, rather than avoided. The solution, then, if one exists, probably lies in the reform of the wash-up process itself, a topic that requires separate consideration elsewhere.
Conclusion
The legislative wash-up period is clearly a pragmatic, yet imperfect, method of ensuring that ‘key’ legislation is enacted before Parliament is dissolved ahead of a general election. But when it comes to bills of a constitutional nature, such as the Post Office Bill, the legislative wash-up is clearly inappropriate. At a time when meaningful scrutiny is key, it is sacrificed in favour of speed. Consequently, the quality, legitimacy and efficacy of the resulting statutes will be unavoidably tainted. Time will tell the extent the quality and workability of the POA has been impacted by Parliament’s inability to debate the Constitution Committee’s report, but as this blog has argued, opportunities to debate, amend and improve the POA has been lost as a result its rapid enactment.
Kate Dewsnip.
Kate is a Graduate Teaching Fellow and PhD candidate at the University of Liverpool School of Law and Social Justice. She is a contributing writer for the Constitution Society.
The Constitution Society is committed to the promotion of informed debate and is politically impartial. Any views expressed in this article are the personal views of the author and not those of The Constitution Society.
[1] Ruth Fox and Matt Korris, ‘Reform of the Wash-up: Managing the Legislative Tidal Wave at the End of a Parliament’ Parliamentary Affairs Vol. 63 No. 3, 2010, 558–569.