18 January 2024

Of course Parliament could pardon the sub-postmasters


With the Post Office scandal in the news, some people have argued that Parliament cannot undo the convictions of those wrongfully accused, because this would be ‘unprecedented’. Pardoning the sub-postmasters, or overturning their guilty verdicts, they say, is a matter for the courts.

Now, I’m no lawyer or constitutional expert, but I am a historian who has read a lot of historical parliamentary proceedings. Parliament both can, and has, done this sort of thing before – often in much more egregious ways.

Up until 2009, the House of Lords acted as our supreme court, before Parliament decided to hive off those responsibilities to a separate Supreme Court. But even apart from that role, Parliament as a whole – that is the Commons, Lords, and Crown-in-Parliament together – has exercised various court-like powers in the past.

The year 1621 is key in this respect, as it’s when Parliament fully ‘rediscovered’ some long-dormant medieval precedents for what it was allowed to do. Although there were only two public acts in 1621, to vote to King James I some money, there was also a significant other Act of Parliament – one that for some reason doesn’t usually feature in the standard lists of acts, but was by far the most important achievement of that parliament.

This was ‘An Act containing the censure given in Parliament against Sir Gyles [sic] Mompesson, Sir Francis Mitchell, Francis Viscount St. Albans Lord Chancellor of England, and Edward Flood’, in which Parliament as a whole arrested, charged, and sentenced a number of individuals.

The alehouse commissioners Sir Francis Michell and Sir Giles Mompesson were degraded of their knighthoods, fined, barred from office for extorting money from licensees. Michell was imprisoned, while Mompesson escaped custody and ended up being outlawed and deprived of his lands and goods for life.

Edward Floyd was merely a Catholic barrister, who was sentenced for seditious words uttered against the King’s daughter and her husband, while already in prison. Floyd was sentenced to degradation from the state of a gentleman, branding (ouch!), whipping (commuted), a fine, and more imprisonment.

Most serious of all, however, was the 1621 action against the presiding judge of the Court of Chancery, the lord high chancellor Francis Bacon – yes, that Francis Bacon – who had only just been honoured as Viscount St Albans. Bacon was found guilty of corruption, so was fined, imprisoned, barred from office, and banished from coming within ‘the verge’ – 12 miles – of the court.

And this was not just a one-off. In 1624 the lord treasurer Lionel Cranfield, recently made Earl of Middlesex, was also charged and found guilty by Parliament of corruption, malfeasance, and neglect of office. He suffered pretty much the same punishments as Bacon.

All of this indicates that Parliament is extremely powerful. There’s been a lot of talk of ‘separation of powers’, but for the most part any separation is within Parliament, between the Commons, Lords, and the Crown, not with other bodies. If you can get all of Parliament to agree, you can essentially do anything – even have an individual executed despite there being no good case against them.

This was the fate suffered by the Earl of Strafford in 1640, Charles I’s chief minister, who was attained and killed by Act of Parliament (16 Cha. 1, c.1) when the legal case against him had begun to collapse.

The attainder of Strafford was not just a case of the House of Commons alone going rogue, as happened just a few years later. It was a fully legitimate Act of Parliament, made so by the King giving it his assent (his one major regret, which he thought God then punished him for with the Civil War). Even in 1662, when the 1640 act of attainder was repealed, there was no question that it had been something that Parliament did and could do.

It’s also from the aftermath of this tumultuous period that we get some very clear-cut cases of Parliament overruling the courts. In 1660, upon the restoration of Charles II, there’s the Act of Free and General Pardon, Indemnity, and Oblivion (recently made more famous by Robert Harris’s new book Act of Oblivion). This didn’t just blanket-pardon many crimes committed during the Civil War while singling out some individuals to be punished for killing Charles I. It also specifically declared many ‘judgements, indictments, convictions, attainders, outlawries, penalties, escheats and forfeitures’ to be ‘null and void’.

The next act on the statute book, for ‘confirmation of judicial proceedings’ (12 Cha 2 c.12) underscored this further. On the whole, this act upheld many court decisions of the Interregnum. But not all of them! Convictions for high treason by royalists or other opponents of Cromwell were specifically ‘discharged or made void’ so that they could ‘be of the same force and effect as if no such conviction, outlawry, or attainder had been’. This was a significant law, on the one hand confirming the rule of law in general during the Interregnum, but using the power of Parliament to overturn some specific injustices.

In 1689, after the Glorious Revolution, the Commons still thought it perfectly within their power to overturn a decision of King’s Bench, which they considered to have been politically motivated – the 1684 case of R. v Williams, when the former speaker of the House William Williams had been found guilty of libel. The Commons resolved that a bill be brought in to reverse the judgement, with the Attorney General of the time summoned to account for his actions. (It didn’t result in an act in the end, but seemingly only because Williams kept pushing too hard to be paid compensation.)

And this interference in judiciary affairs isn’t just a 17th century blip. In 1701, with the Act of Settlement, Parliament gave itself a procedure by which to trigger the removal of judges. Long after it had got Bacon removed, in 1830 Parliament triggered the removal of Sir Jonah Barrington from the Irish High Court of Admiralty on grounds of corruption, with the Commons and Lords issuing a joint petition to the Crown. Barrington’s removal was one of William IV’s first actions as king.

Finally, it was especially weird to see the former Attorney General Dominic Grieve arguing that Parliament should not overturn Post Office convictions. In 2013, during his tenure as AG, the government used emergency provisions to fast-track the Jobseekers (Back to Work Schemes) Act through Parliament. The context of this act was that claimants who had had their benefits removed were found not to have broken the rules by the Court of Appeal. So the act retrospectively changed the legality of the regulations, in essence making sure that anyone whose benefits had been sanctioned, and who would have had a claim because of the court ruling, could no longer have that claim. Or in other words, it retrospectively made the innocent guilty.

Like it or not, whether or not it ought to, Parliament can do this! That particular law was subsequently amended again in 2019 because it conflicted with the 1998 Human Rights Act. But a precedent is a precedent, and only Parliament, or Parliament-granted powers (as in this case), could undo it. So if Parliament can and has declared the innocent guilty, it can also declare the convicted sub-postmasters innocent. Or really do whatever it likes – it could, for example, just compensate or mitigate for the wrongful convictions rather than necessarily declaring them void.

Whether it should overturn a court decision is another matter, and I don’t really know the details of the cases. But in terms of precedents alone, it certainly has form.

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Dr Anton Howes is a historian. He writes 'Age of Invention', and email newsletter on the history of invention.

Columns are the author's own opinion and do not necessarily reflect the views of CapX.