By Tony Collins
The Sunday Mirror has reported that former sub-postmasters who exposed the biggest miscarriage of justice in British legal history plan to launch a fresh claim for £300m “fair” compensation.
The paper says that sub-postmasters won a settlement from the Post Office in 2019 but received only an average of £20,000 each.
The government has insisted the settlement is full and final but the Justice for Sub-postmasters Alliance, led by Alan Bates, is seeking “fair” compensation of £300m. That figure equates to, on average, about £540,000 for each member of his 555-strong group.
The Post Office wrongly accused hundreds of people who were running branch post offices of fraud, theft or false accounting on the basis of money shown as missing on the Horizon accounts system. Horizon’s supplier Fujitsu and the Post Office concealed bugs and defects that were causing unexplained losses and let innocent people lose homes and businesses, go to prison or be made bankrupt. A small number of those blamed for Horizon shortfalls committed suicide.
Bates and his group exposed the scandal by suing the Post Office in the High Court. Since the litigation ended in December 2019, more than 70 wrongful convictions have been quashed and hundreds more appeal cases are in the pipeline.
But Bates and his group are denied access to government compensation schemes. He said,
“It seems the Government is determined to keep punishing us and denying us the money we are owed because we dared to expose the failings of the Post Office”.
Nick Wallis, journalist and author of The Great Post Office Scandal, reported in December 2021 that the Department for Business, Energy and Industrial Strategy and its Postal Affairs minister Paul Scully were still insisting that the settlement reached at the end of the litigation was “full and final”.
But Bates says that, although the settlement was signed in good faith, it later emerged that the Post Office had withheld a vital document, the so-called Clarke Advice, which could have shown that the institution’s managers knew as early as 2013 that it was wrongly prosecuting postal workers.
Had the Clarke Advice been disclosed in 2013 it could have undermined the Post Office’s case for going to the High Court in defence of Horizon. The Clarke Advice was not disclosed until after the settlement – and only then because of the tenacity of barrister Paul Marshall.
Bates seeks a legal firm to help him have the settlement agreement set aside as fundamentally flawed.
Labour MP Kevan Jones said:
“The postmasters who uncovered the Horizon scandal deserve to be compensated. It’s unacceptable for the Government to carve them out of existing compensation schemes, and we urgently need to see proposals to reverse this.”
The Clarke Advice was dated 15 July 2013 and was written by a barrister, Simon Clarke, who worked for solicitors that had been instructed by the Post Office in relation to prosecutions. The document revealed a failure to tell the courts about Horizon’s bugs while sub-postmasters were put on trial on the basis that the system was robust.
This failure to disclose the bugs put the Post Office in breach of its duty as a prosecutor, said the Advice. “By reason of that failure to disclose, there are a number of now convicted defendants to whom the existence of bugs should have been disclosed but was not,” it said.
This morning, the Business, Energy and Industrial Affairs [BEIS] Committee will question Nick Read, CEO of the Post Office, Paul Scully, the government minister in charge of the Post Office, Carl Creswell, a director of the Department for BEIS which provided public funding for the Post Office and Tom Cooper, director of UK Government Investments who was the government’s representative on the Post Office board.
They will be asked about the obstacles facing former sub-postmasters seeking financial compensation and how effective the Post Office and the Government have been in attempting to address the financial loss suffered by sub-postmasters.
Ministers and civil servants who appear before select committees are usually briefed on how to answer possible questions and what they can and cannot say, particularly if the subject matter is considered legally sensitive.
If there are any new disclosures of information they are likely to have been pre-agreed by departmental communications teams and lawyers.
Under civil service conventions, civil servants who appear before select committees must represent their departments and particularly their minister. They rarely give their own opinion unless it is one consistent with the departmental and ministerial “lines to take” as pre-agreed.
Civil servants have a duty of honesty and integrity but there is no statutory requirement for officials or ministers to be open and candid in what they tell MPs. The Matrix Churchill affair in the 1990s showed that there can be a Whitehall expectation that half-truths, if deemed in the national interest, may be necessary when answering Parliamentary questions.
Select committees have little power to force the full truth from witnesses. On one occasion the Public Accounts Committee made a government lawyer representing HMRC give evidence on oath but it caused a furore among leading civil servants and has not been repeated.
The “patronising disposition of unaccountable power”
Postal Affairs minister Paul Scully used an odd expression last month.
He was describing the reasons for giving the Post Office government funding to pay compensation to former sub-postmasters and sub-postmistresses whose convictions have been quashed. He said,
“… we are not making the funding available from the goodness of our heart; we are doing so because it is the right thing to do. I do not think anybody—as well as being a Government Minister, I am a constituency MP and a human being—can read these cases and listen to those involved, and fail to be moved by what has happened over the last 20 years.” [My emphasis]
The expression “right thing to do” was odd in the context of a scandal in which the government refuses to pay a penny in compensation to hundreds of sub-postmasters who were not convicted but still lost homes and businesses on the basis of Horizon “evidence”. Some including Lee Castleton lost, directly, hundreds of thousands of pounds. Many former sub-postmasters and sub-mistresses have not received full refunds of money they were made to pay for Horizon losses.
In this context, it is possible to see the phrase “right thing to do” as evidence of the patronising disposition of unaccountable power – the title of an official inquiry report into the Hillsborough disaster.
The phrase right thing to do can be used entirely inappropriately. It would be unsurprising if the Chinese government used it to explain why it was putting its citizens into “re-education” camps that are surrounded by barbed wire.
It is also an inappropriate phrase when used by a UK government minister in the context of dividing scandal victims into two groups – those worthy of full and fair compensation and those not.
Doubtless the phrase was written for Scully by officials in his business department, BEIS. These officials would appreciate the irony of saying it was the right thing to do to pay some victims and not others, especially when the unfunded group has exposed deep-rooted flaws in the Whitehall machine and embarrassed mandarins.
Also aggravating the injustices suffered by the Bates 555 is the government’s repeated use of the phrase full and final to deny fair compensation to the group. The phrase suggests that the settlement was negotiated entirely in accordance with established and accepted patterns of conduct and behaviour.
But how can that be the case when the Post Office withheld from the settlement negotiations – and from the High Court – a document that, if disclosed, could have fundamentally undermined the Post Office’s £40m defence of Horizon?
That the Post Office went ahead with the litigation and reached a settlement as if the Clarke Advice had never existed has never been explained.
If government ministers had genuinely wanted to do the right thing, they would have set aside the settlement last year and paid full and fair compensation to Bates and his group members.
It ought not to require a new Bates-led legal action to show that the deal was one-sided and flawed.
Has much changed?
The lack of openness and transparency continues. The Post Office is still refusing routinely to supply documents despite freedom of information requests from campaigners including Eleanor Shaikh and Tim McCormack. Looked at from the outside, the Post Office machine looks bright, modern and newly-polished but inside, from a Whitehall viewpoint, its original trusted engine is reassuringly familiar.
It is possible today that the minister Scully will reiterate vague promises he has made before about compensating the Bates 555 but the longer government and the Post Office hold onto money that belongs to the group’s members, the more the use of the phrase right thing to do will look incongruous, even ridiculous.
100 MPs sign letter calling for full and fair compensation for the Bates 555 – Christopher Head initiative
Nick Wallis’ book The Great Post Office Scandal
Scandal at the Post Office – the intersection of law, ethics and politics – Paul Marshall
Government inquiry to look into compensation for scandal victims – Karl Flinders, Computer Weekly