By Tony Collins
How does a public institution behave when it has little effective oversight?
Mr Justice Peter Fraser is expected to rule shortly on a critical question that is at the heart of a long-running IT dispute between the Post Office and hundreds of former sub-postmasters.
His ruling may answer the question of whether the Post Office’s “Horizon” IT or sub-postmasters were likely to have been to blame for unexplained shortfalls of sometimes tens of thousands of pounds shown on local branch systems.
If the Post Office loses the High Court case, it could end up paying damages of hundreds of millions of pounds – which could fall to the taxpayer. The state owns 100% of the Post Office. Public funding of the Post Office amounted to £2bn between 2010 and 2017 and a further funding package of £370m is agreed until 2021. Any damages could be on top of this.
If the case ends up with the Post Office’s needing a taxpayer bail-out, this would raise some obvious questions:
- Who in government and the civil service provided oversight when the Post Office decided controversially to trust what was shown on a proprietary computer system rather than the word of hundreds of local branch sub-postmasters?
- Who in government and the civil service endorsed the Post Office’s decision to defend litigation that could end up costing taxpayers hundreds of millions of pounds?
- Who in government and civil service endorsed the decision to continue defending the litigation – and indeed deepening it – despite excoriating criticisms of the Post Office by two High Court judges?
It is still possible for the Post Office to win the case in which event its actions and decisions may be vindicated. But it has lost every interim ruling so far, in a case which has lasted two years to date.
When asked about their oversight of the Post Office, ministers have distanced themselves.
In August 2019, the then Minister for Postal Services, Kelly Tolhurst, said in a letter that Post Office Limited “operates as an independent, commercial business and the matters encompassed by this litigation fall under its operational responsibility”.
But thanks to extensive research by Eleanor Shaikh, a reader of the blog of journalist Nick Wallis, who is crowd-funded to cover the High Court hearings, we know that civil servants reporting to ministers have extensive responsibilities for oversight of the Post Office.
The state categorises the Post Office as an “Arm’s Length Body”]. Shaikh learned that the Department for Business Energy and Industrial Strategy is required to “exercise meaningful and commensurate oversight of ALB [Arm’s Length Body] strategy, financial management, performance and risk management”.
A 2014 Civil Service document, Introduction to Sponsorship, adds that,
“the Secretary of State is ultimately accountable to Parliament for the overall effectiveness and efficiency of each ALB of which their department is responsible.”
It’s not only about oversight. Civil servants are,
“… expected to play an active role in the governance, financial management, risk management and performance monitoring of ALBs and are responsible for managing the relationship with an ALB on behalf of the Minister and the AO [accounting officer].”
Wallis reports in full on Shaikh’s findings.
How effective has civil service oversight been so far?
The judge’s comments in his ruling of March 2019, which the Post Office is seeking leave to appeal, suggest that there has been little effective civil service challenge to Post Office’s decisions. Indeed, one of the judge’s findings was that,
“The Post Office appears, at least at times, to conduct itself as though it is answerable only to itself.”
The judge also criticised,
- untrue statements by the Post Office
- threatening and oppressive behaviour by the Post Office.
- the Post Office’s appearing “determined to make this litigation, and therefore resolution of this intractable dispute, as difficult and expensive as it can”.
- the Post Office house style for some senior management personnel giving evidence which was to “glide away from pertinent questions, or questions to which the witness realised a frank answer would not be helpful to the Post Office’s cause”.
- a culture of secrecy and excessive confidentiality generally within the Post Office but particularly focused on Horizon
- Post Office witnesses in general who have become “so entrenched over the years, that they appear absolutely convinced that there is simply nothing wrong with the Horizon system at all …”
- attempts by the Post Office to prevent some evidence from emerging into the public domain by applying to have it struck out as irrelevant
- attacks by the Post Office on the credibility of sub-postmasters whom the judge found credible as witnesses in the case.
- some Post Office procedures that went from the sublime to the ridiculous,
- some Post Office submissions that were “bold, pay no attention to the actual evidence, and seem to have their origin in a parallel world”.
- the Post Office’s asking a sub-postmistress to extend the local branch’s opening hours a day after her husband, who ran the branch, had died.
Of the Post Office’s most senior witness, a director, the judge described her as highly intelligent. She on occasions gave clear and cogent evidence. She helped to improve the Horizon system and had provided some useful evidence.
But in describing parts of her evidence he also referred to a “degree of obstinacy”, extraordinarily partisan”, “sought to obfuscate matters…”, “disingenuous” and a “disregard for factual accuracy”. He said at one point in his ruling, “I find that she was simply trying to mislead me.”
He concluded, “I find that it is necessary to scrutinise everything she said as a witness, both in her witness statement and in cross-examination, and treat it with the very greatest of caution in all respects.”
If the judge is right in his criticisms – and it is too early in the appeals process to say conclusively that he is right – is he simply describing the behaviour of a state institution that is, in essence, without higher control?
Civil servants from, among others, the Department for Work and Pensions, HM Revenue and Customs, the Ministry of Defence, Home Office and DEFRA appear regularly before the Public Accounts Committee and are the subject of value-for-money investigations by the National Audit Office. The Post Office has little of this scrutiny.
A large private company has many shareholders and the threat of going bust to keep it in check. But the Post Office is too big and important to the community to be allowed to fail.
When Boeing’s aircraft technology is the subject of independent, detailed and widespread criticism, its planes are grounded indefinitely while regulators investigate.
The Post Office has no fear of any regulators shutting down its Horizon system.
In an accountability vacuum, how can a state institution be expected to behave?
Individuals within a large organisation will have a sense of right and wrong. But collectively, can people within state institutions be expected to do much more than meet the requirements of the culture and law as they perceive it?
That is why effective and rigorous oversight of state institutions is critical, if only to protect the interests of taxpayers.
When the widow of a sub-postmaster who’d died the previous day took over his branch, the Post Office asked her to extend the opening hours, which seems to have surprised the judge. Wouldn’t that behaviour surprise anyone?
When shortfalls were shown on the computer system, how easy was it for the Post Office to demand that sub-postmasters made good the losses sometimes without full investigations? It was easier, perhaps, without effective oversight.
Can the Post Office be held entirely responsible for the Horizon IT debacle? It is a state institution. Responsibility for the debacle lies, therefore, with ministers and civil servants, whatever the outcome of the Horizon dispute.
Nick Wallis’ trial coverage including Eleanor Shaikh’s research on the oversight that ought to be provided by ministers and the civil service.
Computer Weekly’s useful summary of the latest position
“NHS Digital have to take a lead on this and enforce standards for us locally to be able to use.”
He also suggests that NHS Digital sign a Microsoft Enrollment for Windows Azure [EWA] agreement as it is costly arranging such a deal locally.
Another comment on the Digital Health website says that even those organisations that could afford the deployment costs of moving from XP to Windows 7 were left with the “professional” version, which “Microsoft has mercilessly withdrawn core management features from (e.g. group policy features)”.
The comment said,
A third comment said that security and configuration management in the NHS is “pretty poor”. He added, “I don’t know why some hospitals continue to invest in home-brew email systems when there is a national solution ready and paid for.
“In this recent attack most the organisations hit seem to use local email systems.”
He also criticised NHS organisations that: