MI6 is more open than “inquiry” into Post Office IT scandal.

By Tony Collins

A public inquiry in 2003 that involved the intelligence, security and defence communities was more open than the largely-private format of an impending “inquiry” into the Post Office IT scandal.

The Post Office inquiry was arranged by Downing Street and officials at the Department for Business, Energy and Industrial Strategy [BEIS].

BEIS helps to fund the publicly-owned Post Office. But the Department’s officials and ministers are said to be implicated in the IT scandal because, for 20 years, they rejected complaints by MPs and peers that the Post Office’s Horizon system was flawed and its unreliable “evidence” was being used to send people who had committed no crimes to prison and to confiscate homes, businesses and cars.

Successive business ministers and the department’s officials did not effectively challenge assurances by the Post Office that its Horizon branch accounting system was robust. Horizon was built by Fujitsu and went live in 1999.

Twenty years later, in December 2019, the High Court confirmed that Horizon had numerous bugs, errors and defects that caused shortfalls on branch post office accounts.  Mr Justice Fraser, head of the High Court’s Technology and Construction Court, ruled that Horizon was “not remotely robust” and that sub-postmasters – business people who ran branch post offices – were wrongly held responsible for shortfalls that were generated by Horizon. The Post Office has contracted Fujitsu to maintain and enhance Horizon and fix bugs.

But it has emerged, largely as a result of High Court litigation, that the Post Office and Fujitsu concealed Horizon’s problems from the courts while sub-postmasters went to jail and lost tens, and sometimes hundreds, of thousands of pounds on the basis of money shown to be missing on Horizon.

Following the High Court’s criticisms of the Post Office, Fujitsu and Horizon, Boris Johnson agreed to hold an independent inquiry but journalist Nick Wallis reported in July this year that civil servants did not want any review or inquiry into Horizon. Wallis reported that he had a call from a senior person in government who told him about plans for a Horizon review:

“… we are limited in what we can do – the terms of the review were kicked between BEIS and No 10 before they finally reached an agreement on what the terms should be and how it should be structured, but the officials [civil servants] weren’t happy with anything. They didn’t want a review; they didn’t want an inquiry or anything. They wanted it all to go away.”

Now it has emerged that the format of the Horizon “inquiry” bears little or no resemblance to other public inquiries. Wallis has established that the Horizon inquiry is not in public; it will have confidential “consultations” rather than open hearings that are covered by TV, radio and other news journalists. The consultations will not be transcribed and the inquiry will not publish evidence it has received.

This is in marked contrast to a public inquiry in 2003 that dealt openly with evidence from intelligence and defence personnel.  

The “Hutton” inquiry in 2003 lasted only six months from start to publication of a report of 750 pages which included Downing Street, civil service and government press office emails, letters, statements, aide memoires, investigation notes, interview memos, details of conflicts in evidence, transcripts and 18 appendices.

The Horizon inquiry will publish none of this. It is also due to take longer than Lord Hutton’s inquiry but produce a much shorter report. The Horizon inquiry’s secretariat told Wallis that the evidence will be acquired “via a combination of formal and informal consultations and information requests”. In line with the apparent informality of the Horizon inquiry, the secretariat described those who give evidence as “participants” although those who appear before conventional public inquiries are usually termed “witnesses”. The secretariat also told Wallis,   

 “The final Report will refer to evidence it has relied on but the Inquiry will not publish the evidence it has received.” The Horizon report will, though, “provide a thorough summary of the Inquiry’s findings”.

BEIS officials have found a retired judge, Sir Wyn Williams, to chair the Horizon inquiry. He is likely to face criticism that the inquiry is of no benefit to victims of the scandal and it appears formatted to show the current Post Office board in a positive light and direct any criticisms at past CEOs, directors, staff and management. 

Indeed, some officials may see the inquiry as little more than a political expedient to manage Parliamentary expectations amid what is being described as the widest miscarriage of justice in the country’s legal history.

If the Horizon inquiry is a political expedient only, it  would mean victims of the IT scandal need not have a primary role in its consultations. Indeed, junior ministers announced the Horizon inquiry after receiving assurances the Post Office and Fujitsu would cooperate but without any such assurance of co-operation by the main group representing victims of the scandal, the Justice for Subpostmasters Alliance. Former sub-postmaster Alan Bates runs the Alliance. He instigated the High Court litigation that exposed the extent of the scandal and led to the government’s promise to set up an inquiry.  

Damage limitation?

Since the litigation ended last year with findings that proved sub-postmasters’ complaints were right about Horizon and, by implication that BEIS officials were wrong to defend the system, junior ministers and the civil service have appeared anxious to limit the fall-out from the High Court case. This may be why the Horizon inquiry is not intended to ask wider questions raised by Mr Justice Fraser in the Bates v Post Office litigation. The judge found that the Post Office acted as if answerable to nobody which raises wide-ranging questions of how a publicly-funded institution was allowed to serve its own interests by prosecuting innocent people and using the courts to confiscate sub-postmasters’ possessions and make some of them bankrupt.   

But the Horizon inquiry’s updated terms of reference exclude consideration of the way prosecutions were conducted and flaws in the criminal justice system that allowed hundreds of people to be convicted on the basis of data from a flawed computer system. And the inquiry’s terms of reference confine matters under consideration to the Post Office alone. The inquiry is not allowed to look at the lack of accountability and effective scrutiny of Arm’s Length Bodies such as the Post Office by civil servants. Government departments are responsible for hundreds of Arm’s Length Bodies.  

Whitewash?

Even before Wallis established that the Horizon inquiry is not in public, it had already been branded a “whitewash” by MPs, peers, sub-postmasters and others. Former Defence minister Lord Arbuthnot, who has campaigned for justice for victims of the scandal since 2010, said the government review “is a pathetic response to a national outrage”. He told Computer Weekly,

“The Prime Minister promised to get to the bottom of the Horizon scandal. This anaemic review will fail to do that, because it fails to ask the important questions. The purpose of an independent inquiry should be to establish the truth, rather than to protect the government from any suggestion of blame.”

Yesterday’s headline in the Daily Mail read:

Fury over Post Office ‘whitewash’:
Victims fear probe into postmasters IT
scandal will be toothless 

In a similar vein, below is an excerpt from a letter written yesterday to Scully from Labour’s Chi Onwurah, shadow digital, science and technology minister, Ed Miliband, shadow secretary of state for business and Lord Falconer, shadow attorney-general.

The letter calls for the Horizon inquiry’s remit to be expanded to include compensation for victims of the scandal.  It said that if justice is to be done, the inquiry must be able to consider what further payments be made to sub-postmasters beyond the “derisory” amounts they received in the Post Office’s litigation settlement. Most of the £57.75m settlement figure went in litigation costs.

Below is part of Labour’s letter to Scully, 

Also, BBC Politics North this week quoted former sub-postmasters as saying the inquiry would be toothless and a whitewash.

The BBC item included comments of Lee Castleton who went bankrupt after the Post Office claimed £321,000 in legal costs from him following a Horizon shortfall of about £36,000. 

But business minister Paul Scully has said he wants the inquiry to be “reasonable in its timing and extensive in its remit so that we can get to the bottom of this as quickly as possible”.

Not a proper inquiry?

The Hutton inquiry had no list of exclusions – things that were out of scope – but the Horizon one does.  One of the specific exclusions in the Horizon inquiry’ is consideration of the settlement payment. The exclusion means that Sir Wyn Williams is not allowed to consider whether sub-postmasters ought to be paid their £46m litigation costs.

A further difference between the Hutton and Horizon inquiries is that those invited by Lord Hutton to attend had no reason to refuse.  But the Justice for Subpostmasters Alliance is refusing to take part because of the Horizon inquiry’s narrow terms of reference. Forensic accountants Second Sight, who are independent experts on Horizon’s problems as they affected sub-postmasters – which is the main topic under consideration in the Horizon inquiry – is also refusing to take part.

An inquiry into Horizon that’s as secretive as the Post Office?

According to Scully, one reason for the inquiry was to see if the Post Office has learned from the criticisms of Mr Justice Fraser.

But one of the judge’s most often-repeated criticisms was of what he called the Post Office’s “culture of secrecy and excessive confidentiality” – a criticism that MPs, peers and others are likely to make of the Williams inquiry.

Three times in one judgment, Mr Justice Fraser used the phrase “culture of secrecy” when referring to the Post Office. He also criticised the Post Office for citing the Official Secrets Act in its dealings with a sub-postmaster. The judge said, “I find it somewhat unusual, and potentially oppressive, that the Post Office could seek to use the Official Secrets Acts in this way. I do not see how, in a routine case, these Acts could possibly apply in the way suggested by the Post Office in this contract.”

The Hutton inquiry hardly mentioned the Official Secrets Act although some of its evidence related to secret and, at times, top secret defence-related information.

It’s unclear how the Williams inquiry will be able, with credibility, to comment on Mr Justice Fraser’s criticisms of Post Office secrecy when the inquiry he chairs is likely to face the same criticism.

TV, radio, online and newspaper coverage?

It is also unclear whether there will be any provision at the Williams inquiry for TV, radio or general news journalism coverage.  Wallis said,

“I also repeated my original request, which had gone unanswered – where do journalists fit into all of this? How are we expected to cover the inquiry? The email I got back was worrying: ‘While we agree that gathering original testimony about the impact that this matter has had on the lives of many postmasters is important, we will also seek to do this in a way that respects the content and confidentiality of such accounts, as indicated by individuals’.”

With regards to the media, he was told,

 “We are actively considering how to enable openness and media scrutiny while paying appropriate attention to the confidentiality concerns of individuals who provide information.”

Comment

Perhaps the most apt formal title for the government inquiry into the Post Office IT scandal – and the most appropriate title for the cover of the final report –  would be “The Starbucks Inquiry”. 

This would tie in with the format of an inquiry that seems designed by the civil service to be little more than a socially-distanced chat over coffee between Sir Wyn and lawyers from the Post Office and Fujitsu.

That the Horizon inquiry exists at all is because of the outcome of litigation instigated by Alan Bates and the Justice for Sub-postmasters Alliance. But ministers and BEIS officials seem untroubled by the absence of the Alliance and Second Sight. They also seem untroubled by criticisms that the inquiry is pointless.  Indeed, over the 20 year life of the Post Office scandal, one of the most consistent reactions of ministers and officials has been indifference to the concerns of sub-postmasters and deference to the Post Office.

Since the High Court judgments, that indifference seems to have turned to undisguised confrontation between officialdom on one side and sub-postmasters and their supporters in Parliament on the other: victims have called for a full judge-led public inquiry but Downing Street and BEIS officials have set up an inquiry that surrenders not one inch of ground to victims.

Indeed, the Starbucks Inquiry excludes all that matters and includes all that doesn’t.

Labour’s Chi Onwurah, Lord Falconer and Ed Miliband warn that the Horizon inquiry may be “doomed to fail” but they are likely to perceive failure in a different way to the civil service.

To MPs and peers campaigning or justice for victims of the IT scandal, the Horizon inquiry will fail if it doesn’t recommend paying the sub-postmasters’ £46m litigation costs, if it points to historical failings only without holding anyone accountable today, if it avoids looking at the conduct of BEIS, the Post Office and Fujitsu during the litigation between 2017 and 2019, if it avoids identifying who was responsible for allowing litigation costs to escalate at the expense of sub-postmasters and if it avoids questions about whether those involved in prosecutions knew sub-postmasters had committed no crimes and that Horizon was faulty when they put sub-postmasters in the dock and sought Proceeds of Crime orders for confiscation. 

 But from a civil service point of view, the Horizon inquiry may be a success if it points to historical failings only, avoids looking any implications of the costs of the litigation or the conduct and decisions of BEIS and ministers during the trials and avoids any questions about the conduct of prosecutions. 

One remarkable aspect of the Horizon inquiry?

In one respect only is The Starbucks Inquiry remarkable – its audacity in terms of the format.  Only Whitehall, perhaps, could be comfortable setting up a public inquiry that’s almost entirely held in private.

When Labour MP Kate Osborne asked Boris Johnson if he would commit to an independent public inquiry over the Post Office IT scandal, Johnson replied, “I am indeed aware of the scandal to which [Osborne] alludes and the disasters that have befallen many Post Office workers, and I am happy to commit to getting to the bottom of the matter in the way that she recommends.”

Fortunately for business ministers and their officials, “get to the bottom of” has no defined meaning in the civil service lexicon of policy implementation.

At least Starbucks won’t have to accommodate any stenographers, recording equipment or journalists. All the more room for lawyers.

What about victims, you may ask. What about them? replies Whitehall.

Post Office races to solve IT error under gaze of public and banks – Computer Weekly’s Karl Flinders

Horizon inquiry’s updated terms of reference with list of what is “out of scope” – GOV.UK

Post Office Inquiry will not publish or transcribe evidence – Nick Wallis

The harm that judges do – misunderstanding computer evidence: Mr Castleton’s story – Paul Marshall