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The mass exoneration of sub-postmasters in the UK Post Office scandal has raised concerns among judges about parliamentary interference in the courts as senior lawyers warned the move should not be repeated.
Prime Minister Rishi Sunak this week announced unprecedented legislation to quash the convictions of more than 700 people convicted in cases brought by the Post Office using flawed evidence from a Fujitsu IT system.
Current and former judges told the Financial Times that the move had created unease within the judiciary, even if there was a general acceptance that the legislation was the only way to resolve at speed what is seen as the biggest miscarriage of justice in modern British history.
Sunak’s attempt to draw a final line under a decades-long scandal is the latest test of the separation of powers between the executive, parliament and judiciary under the UK’s uncodified constitution in recent years.
The move could also mean that a small number of postmasters whose convictions were safe would also be exonerated and compensated alongside the innocent, they noted.
One current judge said the prospect “causes a little disquiet”.
The Judicial Office, which represents the judiciary in England and Wales, said the legislation was “a matter for parliament and not for the judiciary”. The emergency legislation would apply to England and Wales. The Scottish government is looking at how it can be implemented there.
Postal affairs minister Kevin Hollinrake told MPs this week the alternative was for individual cases to go through the courts, “dragging out the distress”. What was proposed was “an exceptional step” for “exceptional circumstances”.
Postmasters will be asked to sign a statement declaring their innocence and those subsequently found to have signed it untruthfully could be prosecuted for fraud.
Dominic Grieve, former attorney-general, described the proposed legislation as “completely unprecedented”. “One would start getting anxious if it became a habit.”
While he accepted there was a “very serious and significant problem” the government felt compelled to address, “there is an issue about the separation of powers and it is a very real issue”.
Sunak’s plan is the latest example of the tensions between judicial, executive and parliamentary authority that have emerged in recent years.
It follows the Supreme Court’s ruling in 2019 that Boris Johnson’s dismissal of parliament using prorogation powers was unlawful, a decision viewed by some Conservatives as an intrusion on executive authority.
More recently, Sunak has pushed emergency legislation to forward his plan to send asylum seekers to Rwanda after the Supreme Court said the scheme was unlawful.
Legal figures have warned the bill threatens judicial independence as it declares Rwanda “safe” for asylum seekers after the court ruled otherwise.
“Asylum seekers who come over on boats may be less sympathetic than the victims of the Post Office scandal in public discourse . . . [but] there are read-acrosses here about the role of parliament,” said David McNeill, director of public affairs and campaigns at The Law Society.
The Post Office legislation was “a dramatic intervention by the government in the independence of our justice system and the judiciary. And we absolutely can’t see this precedent repeated,” he added.
David Green, former director of the Serious Fraud Office and partner at law firm Cohen & Gresser, added: “On balance it would appear to be the best route to put things right as quickly as possible. It is important though that this in no way sets a precedent for political interference in judicial outcomes in the future.”
Hollinrake said the government “completely recognises the importance of an independent court system and judiciary” and that the plans raise “important issues of constitutional principle”.
Some lawyers disagreed that the legislation created serious separation of powers issues, noting the courts had in recent years issued damning conclusions about the reliability of the Post Office’s Horizon IT system.
In a 2019 civil court ruling, Mr Justice Fraser described the Post Office’s continued denial of problems with the system as “the 21st century equivalent of maintaining that the earth is flat.”
Barrister Patrick Green KC, who acted for sub-postmasters in the case, said: “The courts are saying this is a terrible injustice. Parliament’s agreeing. So what’s the big deal?”
“It’s such an exceptional situation that what would normally be perhaps unjustifiable is appropriate,” he added.
The unusual nature of the case also reduces the risk that the legislation create a meaningful precedent, said Lord Jonathan Sumption, a former UK Supreme Court judge.
“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.”
James Chalmers, regius professor of law at Glasgow university, said: “There will be an instinct [among judges] of ‘This is our role. We decide on the merits of cases’.
“But given the public sympathy it wouldn’t be a popular sentiment for judges to say, ‘Wait a few more years for justice to be served’.”