Dr Robert Craig is a Lecturer in Law at the University of Bristol. He specialises in Constitutional Law.
Some commentators have claimed that the decision to expedite the process of formally exonerating the sub-postmasters potentially runs afoul of certain core constitutional principles, in particular the separation of powers.
On the contrary: legislating to reverse the convictions of the sub-postmasters is constitutionally appropriate and commendable. The arguments for such legislation being constitutionally inappropriate are based on seriously mistaken premises.
For a start 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.
Furthermore, Crown-in-Parliament is also the High Court of Parliament; this would not be the first occasion that Parliament has overturned a judicial decision.
Separation of Powers
David McNeill from the Law Society has argued that the legislation “breaches a fundamental principle which is effectively the government legislating against decisions, against the independence of the courts”. The ‘fundamental principle’ referenced here is the separation of powers; McNeill claims that this legislation would put this principle in jeopardy.
The separation of powers is the Cinderella of constitutional principles, frequently disregarded as the rule of law and parliamentary sovereignty are showered with (perhaps undeservedly) greater attention.
In some systems, notably France, a purist approach to the concept sees separate administrative courts designed specifically to differentiate between the executive and judicial branches. The UK, however, 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 rather than institutional silos.
This results in different institutions and branches overlapping and overriding other parts of the overall system in a complicated dance that is irreconcilable with the rationalist, purist approach favoured by those who prefer platonic ideals to tradition, custom and experience.
Thus, for parliament to correct a series of wrongful convictions would be a vindication – not a breach – of the separation of powers in the United Kingdom.
Pay no attention, then, to the siren calls of constitutional ingenues trying to impose purist ideals of institutional silos onto the pragmatic application of a concept which is far richer, far more nuanced, and far more interesting here than elsewhere.
Rule of law
The concern about the rule of law is also easily met: this principle also requires that natural justice should prevail, meaning that individuals should have a fair trial, with all the evidence available, so that a tribunal of fact can make a fair judgment of their legal position and rights.
Where a private prosecutor deliberately and maliciously withholds evidence and subverts justice then subsequent convictions are tainted ab initio, even where a guilty verdict might anyway have resulted, or even been merited.
This leads to a further reason why legislation is arguably so appropriate in this case. It is fair to say that legislation is normally general, applying either to everyone or to clear classes of people, such as pregnant women. An Act applied to individuals carries the ghostly whiff of ancient Acts of Attainder – although these operated at the other end of the scale, convicting individuals at the bar of the House.
The Bill in its current form, on the other hand, vacates the class of convictions obtained by the Post Office from 1999/2000 onwards as its culture curdled, a dominant narrative took over, and it closed its collective mind to evidence that did not fit that narrative.
Why? Because there is a larger rule of law principle that would thereby be vindicated.
One of the few silver linings of this debacle is that it should provide a welcome boost to the sometimes tough sell of defending the provision of public money to those accused of (even heinous) crimes.
As the Secret Barrister has tirelessly argued in their excellent books, defending the convoluted, complex and time consuming processes of criminal justice is sometimes a thankless task against tub-thumping tabloids and their cheap headlines. A new rallying cry in the defence of the old Blackstone mantra of it being better to free ten guilty than convict one innocent must now receive a significant and welcome boost.
One of the reasons Blackstone’s argument has such purchase in our minds is because no one is immune to the fear that the state, with all its awesome resources, might one day come after you in error. No less fearsome is the idea that a malevolent institution could weaponise those resources against us by falsely accusing us and withholding exonerating evidence from the court.
For Parliament, our Parliament, to step in and attempt to assuage public concern about the horrifying possibility that one day any one of us could be wrongly convicted and our lives destroyed is politically understandable, justifiable, and indeed arguably necessary. It will serve to remind the whole justice system of the essential vigilance that is required to avoid this kind of disaster in future.
Moreover, a general quashing of convictions would have the benefit of sending a stark message to others with actual or delegated prosecuting authority, from the CPS to HMRC and the rest. The ignominy and humiliation of having all its convictions overturned should hang like a Damoclean sword over the decisions of such institutions; the award of compensation, even to some bad apples, would underline that crucial message.
Royal Pardon
What then of a royal pardon? If it was good enough for soldiers in the First World War, many suffering from what would today be called post-traumatic stress disorder (then called shellshock) who were executed for deserting, then why is a pardon not good enough today?
No doubt this option has received serious consideration. But there is a material distinction. A stark difference from previous wrongful convictions is that the Post Office collectively lost its integrity and sense of honour and fair play as individuals or as an institution over a long period of time.
Those earlier convictions, on the other hand, were deeply unfortunate and for genuinely innocent victims of the system, deeply regrettable. But they were not systemic.
An Act of Parliament, then, might be thought justified precisely because a second order principle is being defended. The abuse of the legal system, and legal powers, is a constant concern in every society. The deliberate and ostentatious laying down of a marker against those dangers is politically useful and valuable.
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The Post Office scandal looks like it will live long in our collective memory, reminiscent of the famous Cathy Come Home documentary, nearly six decades ago. The decision to legislate to remedy the situation is not just constitutionally acceptable, it is in fact a shining example of the best traditions of parliament acting powerfully to grant justice to the wronged.
Parliament can do so by redressing a legitimate grievance brought to its attention and definitively overturn a series of judgments that could only have been obtained, and were only obtained, by a toxic, captured and wilfully blind corporate culture including some participants for whom a reckoning must surely be looming.
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Author: Dr Robert Craig
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