Do “offensive” words reveal Whitehall’s antipathy to sub-postmasters whose litigation exposed the extent of the Post Office’s IT scandal? What needs to happen now?
By Tony Collins
Photo: Andrew Buchanan,- Unsplash
Former Conservative defence minister Lord Arbuthnot has asked the postal minister Paul Scully to stop using an “offensive” form of words that appears to blame sub-postmasters – not the Post Office – for damage caused by the “Horizon” IT scandal.
Scully, a former deputy chairman of the Conservative Party, praises the current Post Office board and, in words drafted by civil servants, repeatedly blames the ruined lives of sub-postmasters on the “Horizon dispute” and “litigation” – which sub-postmasters instigated.
The government and Post Office lost the dispute and litigation, an outcome which some civil servants (not all) seem to hold against sub-postmasters.
More than 550 sub-postmasters sued the Post Office to prove that its Horizon IT system had faults for which sub-postmasters were wrongly held responsible. Since Horizon went live in 1999, it showed shortfalls in cash which the Post Office attributed to the dishonesty or incompetence of business people who ran branch post offices – sub-postmasters. The shortfalls led to dismissals, recovery of supposed losses by the Post Office and sometimes criminal prosecutions, bankruptcies and premature deaths from ill health. There were also two documented suicides and several reports of attempted suicides.
The sub-postmasters’ group litigation exposed the public institution’s untruthfulness and fundamental cultural flaws that included an inability to accept any views about Horizon other than its own. The judge in the case Mr Justice Fraser found the Post Office oppressive and secretive. He said its Horizon system had numerous bugs that caused unexplained shortfalls. He also found that Horizon’s supplier Fujitsu had a back-door into branch accounts in which accounts could be changed without the knowledge of sub-postmasters. The existence of this back-door undermined every prosecution for theft, false accounting and fraud where the only evidence of missing money was derived from Horizon.
Mr Justice Fraser
Mr Justice Fraser’s findings are likely to have embarrassed the business department, now known as BEIS, which has always supported the Post Office in maintaining there was no evidence the system was faulty.
Ministers and civil servants may also be embarrassed at their support for the Post Office when it hired four QCs and two firms of solicitors to oppose sub-postmasters. During the trials, the Post Office disparaged individually the “lead” sub-postmasters who challenged Horizon’s robustness, depicting them as liars and fraudsters. The Post Office also disparaged Mr Justice Fraser, saying he was biased.
The Post Office’s criticisms of sub-postmasters – and its uncompromising defence of Horizon – continued up until the day it signed a settlement with litigants in December 2019.
It is unclear whether Whitehall officials, who had supported the Post Office throughout the two years of the case, were able to to change their minds overnight to accept sub-postmasters were not liars and fraudsters and Horizon was not robust.
Indeed, since the settlement, no minister, civil servant or anyone at the Post Office has publicly absolved any individual former sub-postmaster although more than 2,500 were affected by the scandal.
There has also been no Whitehall sympathy for any of the individuals whose Horizon-related convictions the Court of Appeal is to consider quashing.
Although the Post Office has decided not to oppose 44 of the 47 Horizon-related convictions that the Criminal Cases Review Commission has referred to the Court of Appeal, in none of the cases has the Post Office declared it was wrong to have prosecuted in the first place.
Indeed, documents that have come to light since the litigation began in 2017 suggest that Horizon had – and may still have – an unimpeachable status within the Post Office that puts it beyond the ability of anyone to question. The Post Office’s former chief executive Paula Vennells did not receive straight answers when questioning the system’s possible deficiencies and accused sub-postmasters facing imprisonment on the basis of Horizon “evidence” were unable to challenge the system.
Even today, it’s far from clear to what extent Whitehall or the Post Office blame Horizon for the ruined lives of sub-postmasters.
Who’s to blame?
It has fallen to Scully, since becoming postal affairs minister in February 2020, to announce the government’s response to the scandal.
Scully has not criticised the current Post Office board. In his speeches and letters, which are likely to have been drafted by his officials, he appears to make a point of blaming the “Horizon dispute” and “litigation” for the damage caused by the scandal. These were some of his statements he made over seven months that use the same or similar words (my emphasis):
“It is impossible to ignore the financial and emotional suffering that the Horizon litigation process has caused for affected postmasters and their families.”
“It’s impossible to ignore the negative impact that the Horizon dispute and court case has had on effective postmasters’ lives, their livelihoods, their financial situation, their reputations and for some, their physical and mental health”.
“The Horizon dispute and court case has had a devastating impact on the lives of many postmasters.”
“The longstanding dispute and subsequent trials relating to the Post Office Horizon IT system have had a hugely negative impact on affected postmasters and their families…”
“The Horizon dispute had a hugely damaging effect on the lives of postmasters and their families, and its repercussions are still being felt today.
“The Government recognise that the Horizon dispute has had a hugely damaging effect on the lives of affected postmasters and their families, and its repercussions are still being felt today.”
Scully’s letter to Lord Arbuthnot
Paul Scully MP, postal affairs minister.
In a letter to Lord Arbuthnot on 22 October 2020, Scully repeats his claim that the suffering of sub-postmasters was due to the Horizon dispute. Scully said,
“The Horizon dispute [my emphasis] has had a hugely damaging effect on the lives of postmasters and their families, and its repercussions are still being felt today. It is my expectation that Sir Wyn [Sir Wyn Williams, chairman of inquiry into Horizon] will engage broadly and openly to ensure that the Inquiry achieves its aims, as set out in the Terms of Reference. You will have seen Sir Wyn’s letter to prospective participants, which highlights his views on how instrumental cooperation with the Inquiry will be. I am pleased to note that Post Office Ltd., Fujitsu and my Department have all agreed to cooperate fully with the Inquiry.
Lord Arbuthnot’s reply to Scully:
Lord Arbuthnot has campaigned since 2010 for justice for sub-postmasters who were wrongly blamed for Horizon’s bugs, errors and deficiencies. He replied to Scully on 23 October 2020,
“On several occasions now you have said words to the effect of what you say in your letter to me, namely “The Horizon dispute has had a hugely damaging effect on the lives of postmasters and their families, and its repercussions are still being felt today.”
It is possible – I shall give you the benefit of the doubt – that you are unaware of how offensive this is. The implication contained in these words is that the subpostmasters who brought the action have somehow caused the damage that, as the judge found, was in fact caused by the behaviour of the Post Office. In that sense it was not a “dispute”. It was outrageous behaviour by a public body owned, backed and funded by the Government, brought to light by the necessary litigation brought by an incredibly brave group, huge in number, that forced the Government and the Post Office to recognise the failures that they had long denied. Please stop using these words, and recognise that the fault was, as Government ministers including yourself have admitted, not that of the subpostmasters.”
Lord Arbuthnot’s request may be a tough one for Scully’s department to accept. It’s only a form of words but words are the civil service’s currency. Doubtless the words blaming the sufferings of sub-postmasters on the Horizon dispute and litigation were chosen carefully and with good reason.
To sub-postmasters, any suggestion that they somehow inflicted harm on themselves by bringing about the Horizon dispute and litigation is offensive – but it does not seem to be offensive to ministers and the civil service.
Herein, perhaps, lies the gap between the way Whitehall and sub-postmasters see the Post Office IT scandal.
The last thing BEIS officials and postal affairs ministers want to do is criticise is the current Post Office board. The government and civil service support the Post Office’s board in ensuring the network of 11,500 post offices is on a sound commercial footing and have systems in place to guard against fraud and theft.
Officials want their ministers to promote and praise the Post Office board. The political priority is supporting the Post Office to reduce or do without the taxpayers’ subsidy of hundreds of millions of pounds.
It is unlikely, therefore, that any postal affairs minister will ever talk of the Post Office as the perpetrator of the widest miscarriage of justice in the country’s legal history.; and no minister is ever likely to repeat the words of Mr Justice Coulson who was startled by
the Post Office’s describing itself as the nation’s most trusted brand and yet considered itself entitled to treat sub-postmasters
“in capricious or arbitrary ways which would not be unfamiliar to a mid-Victorian factory-owner …”
More likely, any speech about the Post Office IT scandal drafted by the civil service will refer to the Post Office network being of vital importance to the country and communities.
Indeed, words and phrases such as bankruptcy, false imprisonment, wrongful confiscations, suicide and suicide attempts are for the world outside the civil service. Inside it, the challenge for those handling the Post Office IT scandal has been how best to replace the word “review” with “inquiry”, which MPs and peers have been demanding,
How the “review” officials were planning came to be upgraded to an “inquiry” is remarkable. Perhaps with a nod to Yes Minister
, the Department for BEIS called their review an inquiry on the basis of its reduced scope. Now, almost buried inside the inquiry’s terms of reference, is a new list of what is “out of scope”:
“The Inquiry will consider only those matters set out in the preceding sections A-F. Post Office Ltd’s prosecution function, matters of criminal law, the Horizon group damages settlement, the conduct of current or future litigation relating to Horizon and/or the engagement or findings of any other supervisory or complaints mechanisms, including in the public sector, are outside the Inquiry‘s scope.”
There are other subtleties in the inquiry’s terms of reference few would notice but which, like the words Lord Arbuthnot rightly objects to, reveal BEIS’s elegant unconcern for the campaign for justice.
One illustration: in the litigation, the Post Office and Fujitsu did not tell the truth to the High Court even though their witnesses were under oath. The Post Office also made strenuous legal attempts to withhold relevant evidence and its lawyers argued (unsuccessfully) to withhold large parts of the other side’s evidence. But in the BEIS “inquiry”, there is to be no compulsion for the Post Office or Fujitsu to tell the truth or make evidence available.
Indeed, the terms of the reference say merely that the inquiry will obtain “all available relevant evidence from Post Office Ltd, Fujitsu and BEIS”. This sentence is, from a BEIS viewpoint, usefully vague, non-confrontation and non-disruptive. No definition is given for “all”, “available” or “relevant” and indeed if evidence is not disclosed in the first place, no judgment need be made over what is meant by “all”, “available” or “relevant”. As there is to be no cross examination of witnesses and the inquiry has a deliberately non-confrontational, confidential approach, it is left to BEIS, the Post Office and Fujitsu to decide what evidence is “all”, “available” and “relevant”. Some or much Post Office material might have been destroyed: it’s not kept indefinitely. There’s no compulsion to produce a single email unless lawyers for the Post Office, Fujitsu or BEIS deem it relevant.
Another vague and perhaps disingenuous objective for the inquiry is to seek to “assess whether lessons have been learned and that concrete changes have taken place, or are underway, at Post Office Ltd”. But the Post Office has already made what could be interpreted as concrete changes. A new non-statutory framework contract with sub-postmasters is one. Another is a place on the board for a sub-postmaster. It’s unclear whether a year-long inquiry is needed to ascertain whether such changes are concrete.
But perhaps for the government and civil service, the most vital part of the inquiry’s terms of reference are its exclusions.
It will not look at whether the Post Office actively stopped the courts having evidence of Horizon’s most serious faults while sub-postmasters facing imprisonment were in the dock watching their lawyers trying unsuccessfully to challenge the integrity of the system’s data.
It will not look at whether the Post Office’s prosecution teams had a commercial interest in choosing criminal charges that suited a subsequent Proceeds of Crime civil case.
It will not look at whether the Post Office was uncertain any money had been taken when it obtained court orders that made sub-postmasters such as Lee Castleton bankrupt and, in many cases, confiscated homes, businesses and cars.
It will not look at whether hundreds of government-owned arm’s length bodies such as the Post Office are able to conduct themselves in the way Mr Justice Fraser described: as if answerable to nobody.
The inquiry will not look at whether the Post Office ought to return in full money it wrongfully demanded from sub-postmasters.
Indeed, the inquiry will not look at refunding the £46m sub-postmasters paid in litigation costs to expose the Post Office IT scandal. In recent weeks there have been very vague hints to sub-postmasters that the question of compensation will be looked at if they agree to participate in the inquiry. But it’s far from clear that the inquiry could, or would, seriously consider compensation or whether officials instead simply want a long and credible list of participants to be published in the final report.
Even the title of the inquiry is usefully vague. Boris Johnson described what had happened to sub-postmasters as a “disaster” and a “scandal”. Commons leader Jacob Rees-Mogg said there was no worse scandal than imprisoning people for crimes they did not commit.
But the words “scandal” and “disaster” are nowhere in sight when it comes to the title of the inquiry. Indeed, the title suggests the inquiry is little more than an investigation into an IT system:
Post Office Horizon IT inquiry 2020: terms of reference
The point of the inquiry is also far from clear. It will publish a list of the Post Office’s failings. But Mr Justice Fraser last year published a list of the Post Office’s failings in a set of rulings that, he said, were nearly the length of Tolstoy’s War and Peace.
And it’s unclear what Scully and BEIS mean when they say that the Post Office will cooperate with the inquiry. Will the Post Office’s evidence to a non-statutory inquiry be more prolific than its evidence to a statutory inquiry – the High Court?
An uncharitable view of what cooperation could mean for the BEIS inquiry may be gleaned from some of the comments
of Mr Justice Fraser and Mr Justice Coulson made about the Post Office’s evidence to the High Court:
“Continually changing nature of he Post Office’s arguments…”
“Scattergun way the original application was made …”
“Betrayed a singular lack of openness on the part of the Post Office and their advisors…”
“It is misconceived to criticise the judge in this case because he was aware of certain deficiencies in the Post Office’s approach to documents and other evidence…”
“It made sweeping statements about the trial and the judgment which were demonstrably wrong. ..”
“… The Post Office ascribed various findings or conclusions to the judge which, on analysis, form no part of his judgment.”
“… The Post Office takes such findings ‘either wholly out of context, mis-stated, or otherwise not correctly summarised’.
Orwell said that political language was designed “give an appearance of solidity to pure wind”.
Pure wind is, perhaps, an apt description of the Horizon inquiry’s terms of reference. From a Whitehall viewpoint, is the inquiry’s main purpose to put on hold a very awkward scandal for another year?
In a previous post, we called it a “Starbucks Inquiry
” because it seems to involve little more than a confidential chat about Horizon with lawyers from BEIS, Fujitsu and the Post Office. But the narrow terms of reference make it more insidious than that.
When Post Office investigators and police knocked on a householder’s door at 3am expecting to handcuff a 19 year-old and take her for questioning about stolen money she knew nothing about and later put her in the dock on the evidence of a computer system whose flaws were hidden deliberately, is a Starbucks inquiry that cannot consider her case an adequate response?
She told BBC Radio 4’s File on 4
“I was crying, I was hysterical. You know, my family were sat there watching me. They made me feel like a real big criminal. They made me feel like a real big criminal. I had a set of handcuffs to both of my hands, so my hands were tied together, then I had a handcuff to one officer one side and one officer the other side, and obviously I wasn’t allowed to see my family. The only thing I had was a note from them all… and then I was placed in this vehicle with no idea where I was going, and then someone told me I was going to Holloway.”
The victim, Tracy Felstead, has spent half her entire life with a criminal conviction she did not deserve. Is any inquiry into the Post Office IT scandal that specifically excludes consideration of her wrongful prosecution – and all similar prosecutions – worthy of the title “inquiry”?
It’s to be expected that the state apparatus in China or North Korea would blame the harm done to law-abiding citizens on the victims themselves but we ought not to expect it of Whitehall officials and ministers.
Horizon’s cult following?
Since its inception, perhaps because of the great enthusiasm of its designers and early supporters, Horizon has acquired a status in which challenges to its robustness have been regarded as unacceptable. Still today, some in government talk of the current version of Horizon as if it could do no wrong.
How were Horizon’s genuine or professed supporters able to bear down with a life-changing effect on individuals who challenged the system? It’s perhaps unsurprising, therefore, that now, after 20 years of the cult-like support of Horizon, the state has set up an inquiry into Horizon that is could hardly be more removed from the commonly-held notion of a public inquiry. That it is ought to be a public inquiry but is going to be held mostly in private, has extraordinarily narrow terms of reference and does not allow cross examination, puts it in the realms of Orwell’s 1984 slogans: war is peace, freedom is slavery, ignorance is strength.
Had it not been for the persistence of campaigning former sub-postmaster Alan Bates, the Post Office could still be putting Horizon dissenters into the dock. It is only because of Bates’s dogged disputing of Horizon’s robustness and the group litigation he instigated against the Post Office that there is an inquiry about to start. If Orwell were alive today and a journalist reporting on the Post Office IT scandal. he would not, perhaps, be in the least surprised that officials and ministers are blaming the suffering of individual sub-postmasters on the Horizon dispute and litigation.
Not too late for justice
Civil servants and ministers could recover respect by taking in the main messages from Mr Justice Fraser’s rulings. Implicitly, in his millions of words, Fraser J seemed to saying that two things in particular need to happen:
- That the events he describes draw, in outline, miscarriages of justice on a shocking scale that have devastated lives in ways that are hard to imagine or convey in words. This needs to be formally acknowledged.
- Financial reparation needs to be paid to sub-postmasters, consistent with the harm done. This is the least a genuinely contrite government can do for those it has grievously wronged. Financial reparations must, if right is to prevail over state-sanctioned wrong, be over and above the actual sums taken from law-abiding sub-postmasters.
There need be little more in the government inquiry than an acceptance of these two messages from the Horizon trials. Financial reparation would, in itself, provide an effective lesson for government, Downing Street officials and mandarins. Whitehall is more likely to learn lessons from making payments to victims of the Post Office IT scandal than anything written in an inquiry report that’s destined for the shelf.
But as things stand, Scully’s review excludes both points – the miscarriages of justice and financial reparation. It is extraordinary that Parliament allows BEIS and ministers to set up an inquiry into Mr Justice Fraser’s findings that excludes the two main messages his rulings convey.
Justice in this case will be costly. Indeed, it will be hard for ministers and civil servants to find the money to make amends properly. But such difficulties are as nothing compared with the sufferings of sub-postmasters.
An apology on a piece of paper or official statement is worthless. Let the victims have some costly contrition.
Court of Appeal – battle royale
– Nick Wallis’ PostOfficeTrial website
NHS trust takes another look at its appointment of IT scandal CEO
– Karl Flinders, Computer Weekly