In July I argued against Lord Sharkey’s proposed statutory pardon for Alan Turing, for a number of reasons.
First, the pardon proposed was not intended to affect Turing’s conviction. I wondered why not. Although the Crown’s prerogative power to grant a pardon is traditionally limited to miscarriage of justice cases
once Parliament decides it should act, there’s no reason for it to feel bound by the limitations of prerogative powers. Parliament is sovereign. If MPs and peers want, by Act of Parliament, to disregard Alan Turing’s conviction, they can do so. So why don’t they? …
Parliament can, if it likes, retrospectively repeal the legislation under which he was convicted, and make everything done under it a legal nullity (if need be making clear that no legal action can now be taken against anyone for anything they did under it).
More importantly, I thought the proposal wasn’t about Alan Turing at all, but about us:
Peers and the government just want to do something symbolic. But who benefits from the symbolism? Not Alan Turing. This pardon, well-intentioned though it undoubtedly is, is not only pointless but self-indulgent. It would make only us only feel that we’re relieved of the burden of the past.
Well, now there’ll be no statutory pardon at all. Instead the Queen has granted one under the prerogative power of mercy, on the advice of the Lord Chancellor and Justice Secretary, Chris Grayling. In reality, the government has decided unilaterally to pardon Alan Turing.
If anything, there’s even more reason to object to this than there was to Lord Sharkey’s bill, whose second reading government whips objected to in the Commons last month. Lord Dubs complained about that in the House of Lords the following week, and last night Lord Bassam made the same point on Twitter:
Glad that Alan Turing has finally been granted a pardon. But why did Tories in the Commons block the bill giving him a pardon last month?
— Steve Bassam (@SteveTheQuip) December 24, 2013
This pardon won’t touch Turing’s conviction any more than the statutory one would have. But the new argument against the government’s approach is that, in order to claim the main credit for this PR gesture, it’s had to monkey with the traditional grounds for exercise of the prerogative of mercy.
The reason Lord Sharkey introduced his bill was precisely because a Royal pardon wasn’t an option. As the then justice minister Crispin Blunt explained in the Commons
It is the long-standing policy not to exercise the royal prerogative of mercy where a person was correctly convicted under thelaws that existed at the time. The applicant must be technically and morally innocent, as my hon. Friend has said. My hon. Friend the Member for Milton Keynes South has said that we should clear Alan Turing’s name. A pardon under the royal prerogative of mercy would not actually affect Alan Turing’s conviction; only a court can quash a conviction and, in that sense, clear someone’s name.
Much as we now feel it outrageous that Alan Turing’s behaviour was treated as a criminal offence, he was guilty of the contemporary offence. To grant him a pardon under the royal prerogative would change the basis on which such pardons are normally given.
How does the government explain this departure from its own policy? In its press release, it says
A pardon is only normally granted when the person is innocent of the offence and where a request has been made by someone with a vested interest such as a family member. Uniquely on this occasion a pardon has been issued without either requirement being met, reflecting the exceptional nature of Alan Turing’s achievements.
Turing’s achievements, then, provide the only reason for doing this; and no reason whatever is given for the suggestion that this pardon be unique.
But why should mercy be so strain’d? If the prerogative can now be exercised in favour of one man convicted historically under a law we now think oppressive and wrong, why shouldn’t all those convicted under the same law be treated the same? Why shouldn’t those convicted of abortion-related offences in the middle of the twentieth century be pardoned too? And why not those convicted of witchcraft-related offences in centuries gone by? Many if not all those victims of lawful atrocity must have been tortured before being killed. Ministers surely can’t deny them pardons just by asserting that Alan Turing is “unique”. That’s a question-begging reason, so no reason at all. Why is Turing “unique”?
Even if some new, wider approach to mercy applies only to offences of gross indecency (which would be hard to defend rationally), and only applies to people of exceptional achievement (why should it?), there’s still the case of Oscar Wilde to be considered. I suppose an argument could be made – I certainly wouldn’t make it myself – that Wilde’s plays, poetry, essays and fiction are minor achievements compared to Alan Turing’s. But whatever you think about that, the prerogative of mercy should not depend on a cabinet game of Great Britons. If it’s right to grant this pardon at all, then some conception of justice should motivate it, not one person’s arguably unique individual merit.
So I’m afraid this arbitrary departure from policy is this government’s latest constitutional whim. It’s certainly not the first.
But the pardon’s wrong anyway. Alan Turing was a great man, treated with shameful cruelty and ingratitude by this country. We ought to feel shame and sorrow about that, now and every time his name is mentioned in future. One of the objectionable things about this pardon is that on some dimly-perceived cultural level it implies official permission to stop feeling that way; it’s a formal announcement that something’s been put right, as though the Alan Turing story can be rewritten with a happy ending. But unless you get your moral sentiments from Hollywood you know nothing’s been put right or ever will be, and that it’s no good cheering ourselves up by pretending it has.
I’m against this irregular, irrational and arbitrary prerogative pardon, even more than I was against the proposed statutory pardon I wrote about in July.Carl Gardner2013-12-24T15:58:20+00:00
“I’m against this irregular, irrational and arbitrary prerogative pardon”
Me too. And for all the same reasons that I mentioned in my comment on the earlier posting. Politicians should stop trying to climb into a moral time machine in order to re-arrange history to satisfy illogical perceptions which parts of today’s society decide to adopt. The progress of civilisation inevitably means that things which were once seen as (or at least tolerated as) reasonable or necessary for the ordering of society will be replaced with more tolerant or humane attitudes. That is, in part, why history is a valuable tool: it holds up a mirror to our foibles and passing fads and shows them for what they are, insubstantial in many cases.
So back to Carl’s post. It is a sign of how spineless some politicians can be that they have not only resorted to the Royal Pardon as a means to a dubious end, but that they have had to perform a u-turn over the role of the Prerogative of Mercy as well. Rather like the Royal Charter for the oversight of press regulation, it seems that these processes are being dragged from the darker recesses of our unwritten constitution as a means of not deploying Parliamentary Sovereignty, when that would be by far the best option.
I wonder if, in next year’s Queen’s Speech, Her Majesty will comment on the increasingly political way her position is being subverted by her tremulous government.
Arguably those convicted under witchcraft laws have more reason to be pardoned given that the basis on which they were convicted was a nonsense.
At least it is arguable that abortion is wrong and that homosexuality is an aberration which society is perfectly entitled to discourage should it wish to do so. Witchcraft is on a par with fairies at the bottom of the garden.
[…] Carl Gardner is a ‘precision law blogger’ and a good friend and accomplice in our Without Prejudice podcasts – which will return soon. This recent blog post is well worth a read: Alan Turing: a strain’d quality of irrational and arbitrary mercy […]
I agree once more. I am not sure that the people involved in this decision actually have very much invested in it philosophically. Had they considered it in the necessary depth, they would surely have asked themselves, “well, who next?’ Because that’s the inevitable question.
I am afraid this ill-thought-through charade was more about a cheap headline for politicians looking to seem ‘of the moment’ rather than genuinely righting a wrong. Were they to wish to right those wrongs, they would surely now be working through a long list of people from the dark ages onwards who were convicted of crimes that don’t sit well with our modern social consciences. But, of course, they are not.
I agree with what you say for the reasons you say it.
A convicted man stands still convicted, but we get a nice fuzzy feeling that something has been done. That the something done is constitutionally dubious, legally of no impact on the conviction and is being applied to a single individual without any form of coherent reasoning is wrong (in my opinion).
The prerogative of mercy is subject to Judicial Review (at least the decision not to grant it: cf Bentley 1993). However, it would be a brave individual, with deep pockets that challenged the Turing decision. As a support of LGBT equality as well the rule of law, this decision has left me in a quandary over whether I would support a challenge.
I thought the pardon, and the proposed legislation, were wrong routes to achieve anything meaningful (warm fuzzy feeling aside). I am not sure that there is any good/effective/appropriate method of righting historical wrongs such as this. As an example, I cannot help but hold a cynical impression that a number of the “apologies” announced by politicians for shameful historical incidents are somewhat, or entirely, empty of meaning, and almost always devoid of actual effect for the victim(s). This pardon feels like such empty apologies in that however, heartfelt and sincere the decision was to issue it, it does nothing. Purely on the legal basis that you have advanced I think a challenge could be brought irrespective of whether the motivation behind it was “worthy” or not.
However, having been imposed and even on the assumption that the decision was merely a PR stunt, does this decision still have value or benefits?
The decision is clearly framed and being promoted as a decision to undo an injustice inflicted on a man because of his sexuality (a position I support). The decision has certainly provoked headlines and opinion pieces lamenting past discrimination, and (perhaps more usefully) commenting on today’s ongoing problems in this area. Even if I had the deep pockets referred to above, I would not wish to challenge this as I fear that every positive/inclusive statement regarding this, even if with a poor underpinning, should probably be embraced. It would be all too easy turn a challenge (even if soundly based in law) into something noxious. I would not to see the headline “Pardoning Homosexuality Irrational, Rules Judge”, as the nuanced argument about why it was legally, not morally flawed would be lost. So for entirely personal cynical grounds, I would not want to challenge what I regard as a dubious if not legally worthless decision on the basis that may help the anti-discrimination cause in a small measure, whereas a challenge if successful could so easily undermine this. Perhaps that warm fuzzy feeling has merit after all?
[…] Fellow blogger and podcaster, Carl Gardner, writes: Alan Turing: a strain’d quality of irrational and arbitrary mercy […]
It is perhaps best to exercise caution in using terminology such as ‘righting historical wrongs’. In this case it appears inappropriate for two reasons.
First, it demands application of current social norms to facts, outside the historical context within which they existed.
Second, it contains the implication that the law itself was ‘wrong’. Unquestionably such a law would now be considered ‘wrong’ but that is a separate issue. At the time the measure was legal, legitimate and properly reflective of the society within which it applied. Hence, within those limits, it cannot be properly described as ‘wrong’. Indeed this issue may explain why the Royal Prerogative of Pardon was not, constitutionally, applied in such cases. Doing so may, in effect, denigrate the rule of law.
There are nevertheless potential advantages in doing so. It may permit the government of the day to portray itself as a bastion of virtue, reflecting the enlightened thinking of a modern pluralistic society whilst simultaneously disassociating itself from the ‘primitive’ approach of its predecessors.
Why the government choose to breach constitutional convention at this point in time remains subject to conjecture. Could it be that they feel the need to establish their own credentials as legislators for the protection of the rights of their citizens in preference to other less enlightened Member States?
[…] See also Gardner’s later post,Alan Turing: a strain’d quality of irrational and arbitrary mercy. […]