Less than a week after the broadcast of the ITV drama, Mr Bates vs. The Post Office, the Government announced new legislation intended to quash the convictions of hundreds of Post Office employees who were wrongly prosecuted and convicted of various theft and fraud related offences. The decision to use primary legislation, rather than allowing the judicial appeals process to run its ordinary course, has proven a controversial one. Various commentators, and some members of the judiciary, have criticised the bill, claiming that it breaches constitutional norms relating to the separation of powers and the rule of law, whereas others have strongly supported its passage.
Undeniably, the use of legislation to overturn criminal convictions is constitutionally unusual. However that does not automatically render it constitutionally inappropriate. As I will argue in this blog, subjecting these proposals to parliamentary and political scrutiny via the primary legislative process may well be the most appropriate and democratically legitimate response in these peculiar circumstances. But: it is imperative that scrutiny is conducted effectively by parliamentarians.
I will begin by providing some factual background, highlighting the Government’s stated legislative aims and explaining the content of the bill itself. I then take a closer look at some of the constitutional issues at play, focusing in particular on the relationship between parliamentary sovereignty and the separation of powers, and most crucially, the importance of parliamentary scrutiny when a bill of this kind is enacted.
The Post Office (Horizon System) Offences Bill
The British Post Office (or Horizon) scandal saw the Post Office wrongly prosecute thousands of innocent postmasters and postmistresses due to apparent financial shortfalls in their accounts. In reality, these shortfalls were caused by the Post Office Horizon software, not by the dishonesty of their employees. Despite this, between the years of 1999 and 2005, over 900 subpostmasters were convicted of theft, fraud and false accounting. The majority of these prosecutions were brought by the Post Office themselves as private prosecutions. Due to its scale and severity, the Post Office scandal is frequently described as one of the worst miscarriages of justice in modern British history.
In the years since the scandal was exposed, the Post Office has faced civil action from former sub postmasters and an independent statutory inquiry is ongoing. The scandal has also received significant media attention, not just from the mainstream press, but in the form of the ITV drama Mr Bates vs. The Post Office, broadcast in early January 2024. The series re-ignited the national conversation relating to the scandal and generated widespread public outrage. It was against this backdrop that Rishi Sunak announced plans to introduce primary legislation to exonerate those wrongly convicted.
On 13 March 2024 the Post Office Bill received its first reading in the House of Commons. In the bill’s explanatory notes, the Government explains that section 1 of the bill will, on a blanket basis, ‘quash the convictions for all relevant offences’. Section 2 explains the meaning of ‘relevant offence’. The Government openly admits that, as a result of this policy, some guilty individuals will have their convictions overturned, but ‘this is a price worth paying to ensure that many innocent people are exonerated’.
The Government has been keen to highlight the exceptionality of this legislation. Speaking at the bill’s introduction, Kevin Hollinrake MP stated, ‘the Government also accept that this legislation is unprecedented. It is an exceptional response to a factually exceptional situation. I want to be clear that this does not set a precedent, and neither is it a criticism of the judiciary or the courts, which have dealt swiftly with matters brought before them’. He then went to justify the introduction of legislation in this context: ‘three years after the first convictions were overturned, only around 100 have been quashed. Without government intervention, many of these convictions could not be overturned, either because all the evidence has long been lost or because, quite simply, postmasters have lost faith in the state and the criminal justice system, and will not come forward to seek justice’.
Normal judicial procedure to overturn a criminal conviction involves requesting the Criminal Cases Review Commission (CCRC) initially review the case. If, upon investigation, the CCRC is satisfied that there may be a miscarriage of justice, they will refer the case to the Court of Appeal to be re-examined. Crucially, this process takes a significant amount of time. This, coupled with the sheer volume of cases involved, makes the normal judicial appeals procedure an inappropriate solution in the Government’s view. David McNeil, director of public affairs at the Law Society, furthers this view when he highlights the ‘running down’ of the criminal justice system. In his view, it would take ‘many, many years, maybe a decade or more’ for the Court of Appeal to process the cases and ‘justice delayed is, ultimately, a denial of justice’.
Primary legislation is, therefore, not an unreasonable way to proceed. But what of the potential constitutional concerns of the legislative approach alluded to at the start of this blog?
Constitutional concerns
Many commentators have argued that the Post Office Bill infringes upon a key constitutional principle – the separation of powers. They argue that by enacting primary legislation to overturn criminal convictions, Parliament is usurping the proper role of the courts. Parliament’s constitutionally appropriate function, in their view, is simply to enact laws, not to interpret or enforce them. As David Allen Green argues, ‘the use of legislation to determine the criminal liability of particular people (and especially to reverse the decisions of the courts) turns the legislature into a version of the judiciary’. However, the idea that the Bill ‘drives a horse and cart through the constitutional separation of powers of the judiciary, executive and legislature’ is a somewhat exaggerated claim.
Firstly, the UK does not have a strict separation of powers, unlike many others states. As Robert Craig explains, ‘the UK has a radically different conception of the separation of powers. Known commonly as the ‘partial’ rather than ‘pure’ separation of powers, our system operates on the basis of checks and balances, not institutional silos’. Due to this lack of distinction, overlap and crossover naturally occurs. A famous example is that members of the executive are drawn directly from the legislature.
Secondly, and most importantly, the doctrine of parliamentary sovereignty dictates that Parliament possesses unfettered law-making powers. Therefore, despite any discomfort about Parliament infringing on the role of the judiciary, it is of course suitably “constitutional” for Parliament to exercise its sovereignty in correcting this miscarriage of justice. Furthermore, fears that this legislation may set a dangerous precedent for the judiciary are understandable, but not necessarily rational. As Lord Sumption points out, ‘the idea that this extraordinary situation is going to be repeated in a way that would make it a tiresome precedent seems to me to be really very far-fetched’.
Some have advocated for the Government to pursue alternative approaches to primary legislation. For example, David Allen Green has called for the CCRC to receive additional funding to clear the backlog of cases and for the process to be made ‘easier and less onerous’. Although these changes would undoubtedly speed up the judicial process, the reality of the situation is that a judicial solution is simply no longer practical.
Many of the individuals who were wrongly prosecuted have been jailed, lost their jobs and had their lives ruined by malicious and unjust legal action. Why would these individuals actively elect to re-engage with, and trust in, a criminal justice system that has already let them down in the most devastating way? Additionally, even if the CCRC processes were streamlined, it is unlikely that justice would come quickly enough. As Matthew Scott highlights, ‘many of the convicted SPMs are now quite old, some have already died…they need exoneration and compensation now, not in a few years time and not after having to fight their way again through a legal system that all of them have every reason to distrust.’
Others have pointed to the royal prerogative power of mercy as another potential alternative to primary legislation. The prerogative power could be utilised by the executive to grant formal pardons to the affected subpostmasters. However, in my opinion, this is a wholly inappropriate option. Unlike when a conviction is legally quashed, a pardoned individual remains a convicted criminal. They may be spared punishment, and are deemed to have been ‘forgiven’, but their criminal liability persists. In fact, criminal liability should never have been imposed upon innocent postmasters in the first place. Their behaviour was entirely legal and prosecutions were incorrectly pursued on a flawed evidential basis. To allow criminal liability to remain, even on a technical legal basis, would be wholly inappropriate.
Public Opinion and Legislative Scrutiny
Most commentators have also failed to highlight the benefits of enacting primary legislation, rather than pursuing a non-legislative alternative. To begin with, legislation is the most democratically legitimate option to pursue here. A national scandal on this level, that has triggered such a significant public response, should be met by a political response in Parliament. As Robert Craig explains, ‘parliament, classically, was where individuals could seek the redress of grievances through their representatives. That is precisely what has happened here, and this kind of response to public outcry is an example of our flexible, representative, legally unlimited parliament at its very best’. Parliamentary involvement also has the added benefit of helping to calm public anxieties around the fear of false prosecutions. It sends a reminder, both to the public and to prosecuting authorities, that miscarriages of justice of this kind can be rectified.
Considering the above, the opportunity that primary legislation provides elected MPs to subject these proposals to effective scrutiny is key. I have written elsewhere about the various tangible benefits that ‘good’ scrutiny can provide, but it also has the power to imbue new laws with democratic legitimacy, something that the use of the royal prerogative or the judicial appeals process is incapable of. Scrutiny, in this particular context, can also be used as an opportunity to assuage concerns about the Bill’s constitutional impact. Already, we are seeing MPs and Peers seek assurances from the Government that this Bill will not be used for nefarious purposes in the future.
However, this relies on scrutiny being conducted effectively. I do not wish to naively present a rose-tinted view of legislative scrutiny. Parliament does commonly scrutinise poorly and produce ‘bad’ laws.[1] This is especially true when legislation is enacted in haste in response to triggering events. If a ‘something must be done’ mentality arises, as in common in emergency contexts, speed is normally prioritised at the expense of ‘good’ scrutiny (and consequently the production of ‘good’ laws).
The Post Office Bill could be at risk of falling into this category. The Bill will have been drafted relatively quickly, in response to the broadcast of Mr Bates vs. The Post Office, and the Government has stated its intention to fast-track the Bill through the ordinary parliamentary stages in order to pass it before the summer recess. Cynically, the Government may also be looking to capitalise on current public opinion and pass a ‘popular’ piece of legislation in an election year. If the Bill moves too quickly, there simply will not be time for adequate scrutiny to be conducted. Similarly, if the ‘something must be done’ mentality becomes overwhelming, the quality of scrutiny may decline as MPs and Peers will be reluctant to slow the passage of an Act that will provide justice to so many.
With this being said, the early indications are positive. As noted above, MPs and Peers are clearly engaging with the constitutional concerns the Bill raises and are suggesting amendments on this basis. For example, Sir Robert Neil MP has suggested the inclusion of a sunset clause to prevent against any future abuses of power. Similarly, Lord Arbuthnot of Edrom drew attention in the House of Lords to the fact that the legislative policy excludes those convicted postmasters who had previously appealed unsuccessfully to the Court of Appeal (or had been denied permission to appeal). He requested that the Government recognise the unfairness of this policy, whilst acknowledging the constitutional tensions at play. The policy of exclusion of unsuccessful appellants has already attracted criticism from commentators, so perhaps amendments will be tabled around this issue as the Bill ping-pongs between the Houses.
Conclusion
As argued above, despite the Post Office Bill clearly engaging issues of constitutional concern, its passage is not unconstitutional. Passing primary legislation is, I believe, the correct response in this context. Via the scrutiny process, Parliamentarians now have the opportunity to enhance the quality of this Bill, alleviate concerns relating to the separation of powers and to imbue it with democratic legitimacy.
In order to achieve this outcome, Parliamentarians must avoid the well documented pitfalls of enacting ‘emergency’ legislation. So far, the early indications are positive. Despite an evident recognition that ‘something needs to be done’, the Bill’s legal and political policy seems to have been well considered and Parliamentarians appear keen to engage with the scrutiny process. As the Bill reaches the Committee Stage, and begins to ping-pong between the two Houses, a clearer picture will emerge as to whether this engagement will translate into substantive amendments. If Parliamentarians continue to scrutinise effectively, there is no reason why the final Bill cannot amount to a constitutionally appropriate ‘good’ law.
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] As an infamous example of an Act that was rushed through parliament and proved to be unworkable in practice see the Dangerous Dogs Act 1991.