Post Office (Horizon System) Offences Bill

Lord Etherton Excerpts

2nd reading
Monday 13th May 2024 Lords Chamber

[Lord Etherton (CB)]

My Lords, the Horizon scandal was described in the Explanatory Notes as a

“miscarriage of justice of unparalleled scale and impact”.

I do not know of anyone who would challenge that description. I certainly would not. It has had a devastating impact on huge numbers of sub-postmasters over a long period, leading to shattered lives, including huge trauma and mental distress, suicides, financial and reputational ruin, and the loss of a normal happy retirement.

The sub-postmasters, who have waited for far too long for recognition of their suffering and of the injustice that has overwhelmed their lives, deserve a speedy and simple route to bring that suffering and injustice to an end. The question for this House is whether this Bill is, in all respects, appropriate to achieve that goal.

The difficulty, which we must confront head on, is that the Bill infringes one of the most fundamental and critical tenets of our constitution: the independence of the judiciary. The judiciary is one of the three pillars of our constitution—the Executive, Parliament and judiciary. Each of those has its allotted function, providing the checks and balances essential for a democratic state.

Increasingly, in our own state, there has been a blurring of lines between the Executive and Parliament. The Minister, in his opening address, said that it is really Parliament and not the Executive that should be regarded as the body responsible for the legislative acquittals en masse provided for in the Bill. The reality, however, is that the Executive, especially one with a significant majority in the other place, almost always secure the implementation of their policies—an elective dictatorship, it has been called.

Reducing the Bill to its essence, the Executive are using Parliament to strip the judiciary of one of its central functions—determining who is guilty and who is not guilty of a criminal offence. That intrusion into the judicial pillar of the state is made as plain as could be from the wording of Clause 7(1), which states that

“a person whose conviction is quashed by section 1(1) is to be treated as if, on the coming into force of this Act, the conviction had been quashed by a court on an appeal”.

It is a characteristic of every autocracy and dictatorship that the Executive directly or indirectly nullify one or more aspects of judicial independence. History has demonstrated that there can be no liberty without judicial independence. This may seem a long way from the benign Bill that we are now debating, but it is not. We must guard our basic constitutional norms ferociously. Perhaps the most important duty of this House, performing its essential role as a check and balance in the lawmaking process, is to do precisely that when it is faced with draft legislation that is the result more of political expediency than of constitutional compliance.

Paragraph 24 of the Explanatory Notes states, as did the Minister, that

“the Bill does not set any constitutional precedent”.

That, however, is a quite meaningless statement. Of course, the Bill does not set any constitutional precedent since no Parliament can bind a future Parliament—each one is sovereign. By contrast, the Bill, if enacted, will provide an historical example of an overreach by the Executive, through Parliament, into the judicial pillar of the state. In that sense it is indeed a precedent for any Government with a sufficient parliamentary majority, even where the object of the Government is not a benign one.

The noble and learned Lord, Lord Falconer of Thoroton, suggested that the precedent was a very narrow one, in effect, confining it to the precise facts and circumstances of the present scandal. I see no reason at all why a non-benign Executive should not take the wider view that I have just described.

The precedent is all the more egregious because, contrary to the impression created by the Explanatory Notes, it is not at all clear that the Bill is necessary to achieve the desired objective. The noble and learned Lord, Lord Burnett of Maldon, has described several practical arguments as to why our constitutional norms can be preserved while delivering the justice that the sub-postmasters so urgently require. I wish to make one or two points in relation to this.

The noble and learned Baroness, Lady Carr of Walton-on-the-Hill, the Lady Chief Justice of England and Wales, addressed the Justice Committee of the other place on 16 January this year on the Prime Minister’s announcement the previous week that there would be emergency legislation to quash en masse the convictions of people prosecuted by the Post Office on the basis of Horizon data. The Lady Chief Justice refuted any suggestion that the judiciary had given the proposed legislation the green light. She said that she had had two short conversations with the Justice Secretary at his urgent request, and that was the extent of the consultation that had taken place. She also refuted any suggestion that the courts had been unable to cope with the cases or would be unable to cope with future volumes.

Where do we find anywhere, in the Explanatory Notes or elsewhere, any analysis by the Government of why the courts would be unable to make special arrangements for expedited appeals in relation to all convictions, or as to how quickly that could be done? The noble and learned Lord, Lord Falconer, gave a range of speculative difficulties that would arise in relation to a wide variety of matters. As I understand it, he acknowledged that it might be possible to provide alternative arrangements that would satisfy the giving of justice in a speedy and effective way but said that this would result in bending our justice system out of balance. But all of this is a balance. I suggest it is better to bend the justice system out of its ordinary shape—if this can be done, as I think it can—if that would give proper, fair and speedy restitution and acquittals to the sub-postmasters, rather than drive a coach and horses through one of our most important and fundamental constitutional norms.

The second point I wish to emphasise in relation to the various examples given by the noble and learned Lord, Lord Falconer of Thoroton, is that, as I have mentioned, his examples of difficulties and his expansion of the problems are all speculative. As far as I am aware, there has been no proper discussion between the Executive and the senior judiciary as to what it might be possible to achieve. The truth of the matter is that every problem said to make the Bill a necessity is capable of resolution without legislative en masse acquittals, including speed of appeals, reluctance of those convicted to become further involved in our court proceedings, lack of evidence, and the test for a successful appeal against conviction. I do not accept that these matters are impossible of achievement outside the context of the present Bill.

What we need is evidence of actual discussions as to what is viable, rather than to deal with speculation as to what may or may not occur. For my part, in the absence of any clear and public explanation by the Government, following discussions with the senior judiciary, and for the reasons I have given, I do not consider that it would be right to support the approach of acquitting through this legislation all those who have been convicted.