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When I Use a Word, It Means Just What I Want It to Mean: Two Examples of the Separation of Powers Under Threat

24/06/2024

The Post Office (Horizon System) Offences Act 2024 quashes hundreds of convictions including those of a factually guilty minority. The Safety of Rwanda (Asylum and Immigration) Act 2024 declares conclusively’ that the Republic of Rwanda is safe despite evidence to the contrary. When Parliament seeks to bind the courts into upholding the propositions that some guilty people are innocent and some countries which are dangerous for refugees are safe, the rule of law is under threat.

The Post Office Scandal

Hundreds of sub-postmasters were wrongly convicted of fraud, theft or false accounting because of systemic failures in prosecutorial disclosure by the Post Office about known bugs in an IT system which created the appearance of cash shortfalls.

This was known to the Government years before the broadcast of a television drama which galvanised public opinion that something must be done. Parliament’s answer is to quash the convictions of all who meet a very broad set of criteria, resulting in the acquittal of the factually innocent and factually guilty alike. This is a novel departure from the rule that it is for a court to determine guilt.

The End Justifies the Means?

One concern about this approach is that it will create a precedent: having acquitted some guilty people without appellate process, what prevents Parliament from reviving Bills of Attainder to find other groups guilty without trial? One hopes this prospect remains fanciful, but legal history is littered with unintended consequences.

Another more potent worry is the reason that alternative solutions were rejected. Why not empower the Secretary of State to refer cases to the courts with a legal presumption that such convictions were unsafe? The Lord Chancellor explained the urgency to a Select Committee: ‘…in the court of public opinion, people would turn around and say, “This lot really don’t get it, do they? They really don’t get that there are innocent people who’ve been horribly wronged, by an emanation of the state, and the state couldn’t even clear up its mess.” I just have to be mindful that to lose that public confidence would lose us the headroom […] to ensure that justice can be done in all these other cases.’

This reasoning ignores the fact that those wronged by the Post Office are not the only ones wronged by ‘emanations of the state’. Politicians have effectively decided that one highly deserving group of people (in whom there is currently some public interest) must have their cases resolved immediately after long delay, whilst others (who have not caught the public’s attention but are also waiting to rectify injustice done to them) must wait longer. Legal reasoning gives way to political priorities. The solution of properly funding the court system to deal with all cases expeditiously is overlooked.

Rwanda: Facts and Law

Before the same Select Committee, the Lord Chancellor was asked how Parliament could declare that Rwanda was safe. In his response, he agreed that if the monitoring committee established to assess the implementation of the Treaty with Rwanda decided that the Treaty was not being properly observed, Rwanda would cease in fact to be a safe country. He also appeared to agree that Parliament had deliberately narrowed the ability of the courts to take into account such evidence to allow Rwanda to be adjudged unsafe in law. Thus, judges would be obliged to ignore certain facts.

Parliament is sovereign: it can entirely re-write the UK’s asylum obligations. What it seeks to do instead is to maintain a pretence of honouring existing obligations whilst preventing judges considering the claims of those challenging executive decisions from taking relevant factors into account.

A Challenge to the Separation of Powers

An impartial judiciary dealing in evidence rather than reacting to public opinion protects the individual from the State. In respect of both Acts, Parliament has sought to neuter the ability of the courts to make findings of fact in individual cases: whatever one’s views on what Parliament is trying to achieve with either piece of legislation, its cavalier approach to the separation of powers should worry us all.

This article was initially posted on the Oxford University Human Rights Blog on 12 June 2024: https://ohrh.law.ox.ac.uk/when-i-use-a-word-it-means-just-what-i-want-it-to-mean-two-examples-of-the-separation-of-powers-under-threat/

Authors

Mary Cowe

Call: 2006

Related Practice Areas

Fraud and Financial Crime

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