Henry VIII had a cook boiled to death – but what does that have to do with the Rwanda bill?

It was a dinner party thrown by the Bishop of Rochester in 1531 that paved the way for Rishi Sunak to attempt to exclude asylum seekers from the protection of the law. Lord Hoffmann, the greatest judge of the last 40 years, told us the tale in the Lords last month.

After the party, guests became sick. One of them died. Suspicion fell on the cook, Richard Roose. Henry VIII, who had a morbid horror of being poisoned, promoted an act of parliament declaring that poisoning was treason, the penalty for which was to be boiled alive; and – this is the point – that Roose had been guilty of this crime.

No trial was to take place. The king was no doubt concerned that “lefty lawyers” might get him off. Roose was duly boiled alive before an appreciative audience at Smithfield.

To make law effective, the executive cannot be allowed to interfere with the conclusions of the courts. If the executive could interfere, then the ability of the courts to hold the executive to the law would go. Faced with any difficulty, the executive would procure the legislature, which in our system they control, to annul or determine in advance the effect of any court decision against them or their targets – in the Rwanda case, asylum seekers; in the 1531 case, the cook.

The justice system in the UK is not so perfect it does not need legislative intervention to correct wrongs. But it is only in the most exceptional case that intervention can involve overturning factual conclusions of the courts.

Right now, there are two bills going through parliament that involve overturning factual conclusions of courts – the Safety of Rwanda Bill, and the Post Office (Horizon System) Compensation Bill. The former is constitutional poison, the latter, which would exonerate all Horizon victims, is necessary to right a very grievous wrong.

The Rwanda bill overturns the finding of fact by the Supreme Court that Rwanda was not a safe destination, and excludes any decision maker or the courts from ever revisiting that question. The interference with the courts’ function is explicit: the bill says that the “judgment of parliament” is that Rwanda is a safe country.

It most certainly is not. That’s not just my opinion. The Lords, by a big majority, has confirmed that was their view by approving a select committee report that Rwanda was not yet safe.

The rule of law is not optional and only for some people, to be determined by the executive. It has to be universal, and the executive has to be subject to law. The most basic protections that citizens have should not be at the mercy of an executive seeking short-term political gain.

The Lords has an important constitutional role to ensure laws such as this Rwanda bill do not get onto the statute book. They cannot prevent it, because they can be overridden by the Commons relying on the Parliament Acts – but they can do all in their constitutional power to delay. And perhaps an election might intervene to ensure this catastrophic precedent is not set.

Only a prime minister as desperate for electoral redemption as Sunak, or a king such as Henry VIII, could think the exclusions of the courts in the Rwanda bill was justified.

The Horizon bill does not name individual subpostmasters. Instead, it specifies certain criteria – prosecuted either by the Post Office or the CPS within a certain time frame, charged with certain specified crimes, when Horizon evidence was deployed in the case – and provides that for anyone who meets the criteria exoneration will occur upon the commencement of the act. There will be no exercise of judgment by the courts to exonerate.

The minister acknowledged there might be guilty people who would be exonerated. But to obtain compensation, they would have to sign a statement of innocence, which would mean they would be committing fraud if they were, in fact, guilty.

The circumstances of the Horizon case are exceptional: the numbers of convicted, the severity of the price paid by innocent subpostmasters, the length of time the deceits of the Post Office continued, the inability of the subpostmasters to do anything about the rolling juggernaut of unfairness as long as the Post Office persisted in lying to courts and withholding the material from the subpostmasters.

All of the constitutional protections failed them. To leave the courts to decide on which side of a line a case falls now involves them reentering a world which destroyed their lives.

Many of them will not want to get involved and will not appeal, even though the opportunity of late appeals is now loudly on offer. That the system now assures the victims that it will deal with their cases quickly, and they almost certainly will be exonerated, does not restore their faith in a process that conspicuously and repeatedly got it horribly wrong.

To acknowledge that the law failed them, and yet now to say the rule of law prevents them from being exonerated by a statute, would be wrong and misguided.

In the Rwanda cases, the government is interfering and excluding the justice system because it has done its job. In the Horizon cases, parliament is intervening because the justice system has failed to do its job.

There is no precise precedent for a statute setting convictions aside, though there have been precedents where parliament has granted pardons (a pardon does not involve setting aside conviction) by an act – interfering with the sentence passed by a court. It is significant those precedents have not led to the malign use of the pardon power by parliament.

Perhaps in the future, bad governments will rely on the Horizon bill as a precedent to exonerate cronies from convictions. I doubt it, because of the exceptional circumstances and the near universal political support for the bill.

The Rwanda bill is the toxic precedent. It deprives people that the government demonises of the protection of law and human rights. It is dangerous and should be stopped.

Labour peer Lord Falconer is a former lord chancellor and co-host of the weekly ‘Law and Disorder’ podcast (podfollow.com/1726569766)