The challenge here is that Lord Burnett is probably both right and wrong. He is undoubtedly correct that this is contrary to our understandings of the norms of constitutional law (although, of course, that can be changed by Parliament, as the first-term Labour government did quite radically). He is also correct to be sceptical about the suggestion that this does not set a precedent. The Court of Appeal occasionally says "this case does not set precedent" or "this case is based on its facts" but there was at least one case (sadly, I can never remember which one) where the court said, in effect, "it's not for the court giving judgment to decide whether it sets precedent or not, that's for later courts". The same is true here. Parliament may well be saying "oh, this doesn't mean anything" but there is nothing to stop a later Parliament saying "well, we did it in 2024 and it worked marvellously".
Where I think he is wrong (or slightly wrong) is with the reverse burden. Like you, I am not sure that is the answer. However, it would be perfectly open for the post office to decide which cases they were not going to contest, and they could be done in one big batch. Also, as I have said before, the current Criminal Procedure Rules permit a single judge to deal with these matters, so they could do it very quickly.
It could make for an interesting debate! If Lord Burnett follows through with it then it would be quite brave, as several MPs will probably continue with their "the judiciary is the problem" and it gives them another rod, but you don't become LCJ to be popular.
“wholly unique,” says Alex Chalk. First of all- of course- the insertion of the word “wholly” is tautological since the adjective unique is unsusceptible to ANY qualification, in either direction: unique is unique. More to the point, why and how arrive at the - yes- unqualified assertion that we are here contemplating uniqueness? Special pleading? The wish father to the thought? Please understand me: I fervently hope that those driving the Bill are proved to be right BUT: what of the ominously similar rumblings we hear with meetings convened with subpostpersons concerning the “Capture” technology and - let us face it- its ostensible identification of accounting shortfalls? Is that topic capable of being put quietly to bed, or is there to be a a strikingly familiar waving away of any challenges and airy claims of infallibility. There is more: without effort I could identify a number of similarly half baked, complacent and- yes- arrogant governmental outsourcing adventures where financial losses- certainly- but also reputational loss and/or losses of liberty have ensued. Yes, they are less tangible and quantifiable-even- than the raw deal sustained with Horizon and they are also likely to be a slower burn than with that scandal. With every appropriate respect to the Justice Secretary, Kemi Badenoch, Kevin Hollinrake et al, I view the description “wholly unique” as bordering on the reckless. Increasingly, I believe that the rule of law is in peril and so- some modest additional delay or not- I favour the principled stance of the current LCJ. I respectfully agree with Joshua that Lord Burnett’s proposal might also erode that precious rule of law in ways, like the Bill as currently presented, where, once embarked upon either of those - supposedly- “unique” and -supposedly-“never to be repeated” measures, there would be no prospect of any “rowing back” on the permanent damage wrought to our system
Excellent piece as ever.
The challenge here is that Lord Burnett is probably both right and wrong. He is undoubtedly correct that this is contrary to our understandings of the norms of constitutional law (although, of course, that can be changed by Parliament, as the first-term Labour government did quite radically). He is also correct to be sceptical about the suggestion that this does not set a precedent. The Court of Appeal occasionally says "this case does not set precedent" or "this case is based on its facts" but there was at least one case (sadly, I can never remember which one) where the court said, in effect, "it's not for the court giving judgment to decide whether it sets precedent or not, that's for later courts". The same is true here. Parliament may well be saying "oh, this doesn't mean anything" but there is nothing to stop a later Parliament saying "well, we did it in 2024 and it worked marvellously".
Where I think he is wrong (or slightly wrong) is with the reverse burden. Like you, I am not sure that is the answer. However, it would be perfectly open for the post office to decide which cases they were not going to contest, and they could be done in one big batch. Also, as I have said before, the current Criminal Procedure Rules permit a single judge to deal with these matters, so they could do it very quickly.
It could make for an interesting debate! If Lord Burnett follows through with it then it would be quite brave, as several MPs will probably continue with their "the judiciary is the problem" and it gives them another rod, but you don't become LCJ to be popular.
“wholly unique,” says Alex Chalk. First of all- of course- the insertion of the word “wholly” is tautological since the adjective unique is unsusceptible to ANY qualification, in either direction: unique is unique. More to the point, why and how arrive at the - yes- unqualified assertion that we are here contemplating uniqueness? Special pleading? The wish father to the thought? Please understand me: I fervently hope that those driving the Bill are proved to be right BUT: what of the ominously similar rumblings we hear with meetings convened with subpostpersons concerning the “Capture” technology and - let us face it- its ostensible identification of accounting shortfalls? Is that topic capable of being put quietly to bed, or is there to be a a strikingly familiar waving away of any challenges and airy claims of infallibility. There is more: without effort I could identify a number of similarly half baked, complacent and- yes- arrogant governmental outsourcing adventures where financial losses- certainly- but also reputational loss and/or losses of liberty have ensued. Yes, they are less tangible and quantifiable-even- than the raw deal sustained with Horizon and they are also likely to be a slower burn than with that scandal. With every appropriate respect to the Justice Secretary, Kemi Badenoch, Kevin Hollinrake et al, I view the description “wholly unique” as bordering on the reckless. Increasingly, I believe that the rule of law is in peril and so- some modest additional delay or not- I favour the principled stance of the current LCJ. I respectfully agree with Joshua that Lord Burnett’s proposal might also erode that precious rule of law in ways, like the Bill as currently presented, where, once embarked upon either of those - supposedly- “unique” and -supposedly-“never to be repeated” measures, there would be no prospect of any “rowing back” on the permanent damage wrought to our system