April 13 2024

Senator Howard Baker’s question: “What did the President know and when did he know it?” went to the heart of the Watergate scandal. But it was another question, asked almost as an aside, which provided the damning evidence: the question to Alexander Butterfield, a Nixon aide, about whether, in addition to the taped instructions given by Nixon to his secretary every evening, there were other recording devices in the White House. That “yes” and the content of those tapes provided the evidence that the conspiracy went right to the top and right from the start.

Something similar seems to be happening now in the Post Office Inquiry with the release of numerous recordings, involving conversations between the external investigators, Second Sight, and the Post Office’s General Counsels, Susan Crichton and, later Chris Aujard. Much of the focus has been on what they show about Paula Vennells’ knowledge of Horizon’s failings and its consequences for subpostmasters, contrary to what she later claimed to a Parliamentary Select Committee.

With all the focus on Vennells, her Chairs, Alice Perkins and Tim Parker and the lawyers, we are in danger of ignoring two important areas of interest.

(1) Ignoring the role of those who were in charge long before Ms Vennells became CEO. They were told very specifically of the problems. I have written more here about what Allan Leighton, Chair in 2003 was told by Alan Bates. Mr Bates was also telling others in the Post Office from 2000 onwards. Alas, there are none so deaf as those that don’t want to hear.
(2)  Not asking questions of those further up the chain of command: those who held the purse strings, who owned the company – the government – which had a director representing its interests on the Board.

Some Questions

– How far were the Board’s actions – and failures to act – influenced by the government’s push to make Royal Mail profitable and ready for privatisation?

Remember: by the time of privatisation the majority of the prosecutions, the miscarriages of justice had happened. The Post Office was still part of Royal Mail. The evidence of Sir Michael Hodgkinson this week made it clear that the Post Office was still relying on committees of the Royal Mail Board to do detailed consideration of matters which the Board should have been considering (though how effective this was is open to question). Those in charge of Royal Mail were ultimately responsible.

– Did the Board fail to act because it did not know or want to know?

– Or did it act in the way it did – which looks remarkably like an attempt to cover up what had been happening – because that was what its owner, the government, wanted?

– Is it plausible that Parker, Vennells and others would have acted as they did – from the statements made to Parliament, the instructions to lawyers in relation to the Bates litigation, the evidence given to the court, the decisions made about what not to reveal, the decision to try and get Mr Justice Fraser removed from the case, the involvement of a senior retired Supreme Court judge in that failed venture and so on – if they hadn’t been confident that the government had their backs?

– Was this really a rogue organisation which misled its owners or kept them in the dark throughout this 20 year period while nonetheless managing to persuade it to provide ever increasing amounts of money to fight the subpostmasters and defend it in Parliament?

– And, if so, what does that say about the governance – the competence, curiosity and integrity – of the Business Department and its Ministers over this period?

– Or is it possible that the government, that Ministers and civil servants in the Business Department and elsewhere (remember the Post Office’s Chair, Tim Parker, was also Chair of the Courts and Tribunals Service at the same time as he was authorising his lawyers to try and get the judge thrown off a case involving a company he chaired) knew about – and may have been actively involved in or tacitly or explicitly approved of – the cover up of the miscarriages of justice?

That last is the question which now needs answering. Not avoiding by blaming the whole farrago on Vennells and others, however blameworthy they may be.

A troubling, current, conflict of interest

I have written elsewhere about some odd conflicts of interest which appear not to have troubled the government despite the obviously concerning issues raised. One in particular seems ever more untenable.

How can one of the Post Office’s Board directors also be on the Board of the Crown Prosecution Service, chairing the Risk and Audit Committees of both bodies, given the very real prospect of the former’s ex and current employees being investigated and possibly prosecuted by the latter?

– How can the Business Department and the Ministry of Justice possibly think this is right? Or wise?

– How can they not see that it creates, at best, the perception of a potential conflict of interest and may create an actual conflict of interest in future?

Unless they don’t care? And why might that be?

Will the Williams Inquiry get to the bottom of this? Unlikely. Unless the executives and lawyers now being held out to dry decide to talk freely. What the Business Department was doing, what it knew, what it approved, what it turned a blind eye to, what civil servants knew, what Ministers were or were not told are not within the Terms of Reference. Unsurprisingly.

But we need to know because, bad as this scandal is on the evidence we have seen so far, it would be infinitely worse if it were the government which was in part responsible for the miscarriages of justice and their cover up.

50 years on from Watergate the key question for the government remains: What did it know? When did it know it?

April 10 2024

Scandals and misconduct do not come out of nowhere. When people misbehave there is usually a clue, often more than one, usually ignored (even if carefully collected and correctly filed) or hand-waved away as unimportant (see the Angiolini Report on Wayne Couzens, for instance). The same applies to scandals involving organisations and actions (or a lack of action) by many people. There were warnings; there were whistleblowers; people were told. Coupled with this is a failure to take this information seriously, a failure to investigate properly or at all, a determination to ignore evidence and, often, a decision to remove, ignore or badmouth those raising concerns. Out of these two ingredients are our scandals made.

This is the case in the Post Office scandal and – this is critical – very much earlier than 2013 when the independent investigators, Second Sight, were telling senior managers some uncomfortable truths. The understandable focus on this period is making us forget there were explicit warnings of the issues much earlier on – and to people right at the top of the Post Office. This became clear from Alan Bates’ evidence yesterday at the Williams Inquiry (during the morning hearing – here – from about 1 hour in until 1:52).

Two key pieces of evidence came out.

The Letter

The first was a letter he sent in August 2003 to the then Chair of the Royal Mail, Allan Leighton. (The Post Office was still part of Royal Mail.) Mr Bates’s contract had been terminated following extensive correspondence with managers from 2000 onwards in which he pointed out that “the Horizon system cannot be relied upon to give 100% accurate figures” (a letter dated 19 December 2000), he could not check the data being produced by Horizon (nor seemingly could anyone else) and therefore could not be legally held liable for so-called shortfalls if the transaction data in Horizon could not be checked and verified. He also says that he was not the only one facing problems. In that correspondence, copied to the Chair, he described – in essence – the two problems which are at the heart of the scandal:

(1) Horizon data was unreliable; and

(2) the Post Office did not properly understand its own contracts with subpostmasters. It acted as if all losses were the responsibility of the subpostmasters whereas in fact it was only ones caused by their negligence, carelessness or error. This faulty understanding lay behind the decisions to prosecute or bankrupt some subpostmasters, such as Lee Castleton.

It was Mr Justice Fraser’s judgment in the Bates litigation in 2019 which spelt out how right Alan Bates had been: Horizon was unreliable and the Post Office’s understanding of its own contracts was wrong. It should not have taken 16 years, two exceptionally long, detailed judgments and endless, ruinously expensive litigation for this to be established. Allan Leighton was alerted to these issues in 2003: a full decade before the Second Sight investigation. Various Post Office managers from 2000 onwards had also been told repeatedly of both the Horizon problems and the contractual issues but had never addressed them.

Why did Mr Bates contact the Chair? In his own words:

“I thought it was well worth trying to write to the Chairman to make him aware of what was going on because he may well have not known…..hoping that he might be able to undertake some sort of review into it and look into the case for us and take it on board a little more seriously.“

“I can’t force them to read it but if you don’t write to them then they’ll never know.“

Allan Leighton could not have been expected to look into these matters himself. But there should have been a proper investigation into what Mr Bates was saying. There wasn’t. The inadequacy of the response makes this clear. It was simply a justification of the decision taken, a polite “we’re right, you’re wrong; no we’re not going to explain anything or answer your questions.” brush-off. In part, this was because there was no proper investigations team within Royal Mail. What was called that was in reality a debt recovery team. It had neither the authority, capability, willingness or independence of mind to investigate concerns or complaints to the organisation.

It is worth noting that when asked why he thought his contract had been terminated Mr Bates said:

“They didn’t like me standing up to them, in the first instance; they were finding it awkward; and I don’t think they could answer these questions. I think they had a feeling I was going to carry on in a similar vein going forward.“

His answer summarises succinctly why whistleblowers are mistreated by organisations, why challenge is so unwelcome and why an investigation, so that you can answer the questions put to you, is so essential. Any person, any organisation, any sort of body or ideology unwilling to be challenged is a red flag, a sign of a poor culture and one well on its way to becoming a toxic and, often, a dangerous one.

The Loss Authorisation Form

Mr Bates had rolled over in a suspense account the shortfalls he could not explain. After 2 years, the Post Office wrote this sum off using a Loss Authorization Form which stated that the loss “was attributable to Horizon system/software/equipment/training failure.” It was a standard template, a document which came to light in disclosure. By 2002 the Post Office had in place a form – and procedure – for writing off sums attributable to a variety of causes, one of which was the “Horizon system“. Yet it continued to claim that Horizon was “robust” etc., (what does “robust” even mean here?) even while it had recognized from an early stage that losses might be caused by it and be written off. Look not at what organisations say but at what they do – especially when they think no-one is looking.

Had there been any sort of proper investigation into what Mr Bates had been saying, had his letter to the Chair been taken seriously – as should have happened – the scandal would very likely never have happened, or not to the extent it has.

The majority of the miscarriages of justice happened long before Ms Vennells became CEO and for a long time after Allan Leighton had been informed of the problems.

As Jason Beer KC said, in August 2003:

“many people had yet to be terminated, many people were yet to be prosecuted, many people were yet to be convicted and many people were yet to go to prison.”

When you strip away the reports, the millions of documents, the interviews, the evidence, the court cases and judgments, the lawyers, the documentaries, the dramas, remember this. At the heart of all these scandals – whether in the police, the post office, the NHS, childrens’ homes or elsewhere – are people (often some of the most vulnerable) whose lives have been ruined, people who have been harmed, people who have suffered and whose suffering could and should have been stopped if only those who had the power and the responsibility to do so had paid attention to the clues waved under their noses and acted. This failure to do so and the accompanying lies – by so many bodies from government down – has degraded trust in our public and private institutions. There is still far too much resistance and denial by those responsible for the problems. It will be quite the effort to rebuild that trust. There is little sign that the scale of the task or its overriding necessity are fully understood.

Photo by Alexander Lyashkov on Unsplash

January 4 2024

In episode 1 of Mr Bates vs The Post Office, there is a scene in which Alan Bates’ wife tells him she has a job.

“Teaching?” he replies.

“No. Cleaning houses.”

They need the money to make ends meet. They have lost their savings and business.

He gives her a look – of love, gratitude & a hint of humiliation at what they’ve been reduced to and then – quietly but with determination – he says:

“I’ll get those bastards.”

It is a wonderful piece of writing and sublime, subtle acting, especially by Toby Jones. It captures both the humiliation inflicted on innocent people by the powerful and the former’s determination not to be ground down. It is about the subpostmasters. But like all good drama, including that based on real life, it shows something universal.

Those sentiments have been echoed before. They will, I am sorry to say, be repeated in the future. Because abuse of power is hard to eradicate. The powerful have no interest in doing so; the powerless find it hard to do so.

This abuse of power by the state or its organs has happened so many times before. This story about the Post Office is not an appalling one-off. It is only the latest of a series of scandals going back at least 60 years.

In so many ways, the misbehaviours exhibited by the Post Office are similar to those exhibited by the Coal Board in the Aberfan tragedy, by the police in Hillsborough, by the government in the blood contamination scandal and Windrush, by the NHS in numerous medical scandals, and in many others.

See https://www.cyclefree.co.uk/the-price-of-indifference/.

The substance may be different but the misbehaviours by the powerful are so very similar:

– the refusal to listen to concerns
– the lies and cover ups
– the stingy callous approach to apologies and compensation
– the refusal to accept responsibility
– the avoidance of accountability.

There are two behaviours above all which are repeated. The first is the arrogance of indispensability.

It is this which leads to the abuse of power which lies at the heart of the actions taken. The Post Office’s conduct over nearly two decades might best be described as a rampage of extortion with menaces, based on lies.

It is enabled by those who allow such organisations to behave as if they are unchallengeable. As if they are “Too Big To Fail” or “Too Important To Fail“.

It is abetted by such organisations being put by voters on a pedestal of some kind or trusted too blindly: the Post Office as a twinkly, trusted “Postman Pat-At-The-Heart-of-The-Community” who could not possibly do any wrong. Or the NHS. Or the police – who have often confused the vital importance of policing as a function with the importance themselves as an institution so making it much harder to challenge bad policing.

In this, these organisations have echoed the stance taken by much of the City in its pre-financial crash glory days, when it gave the impression that it was so lucrative and therefore indispensable that it could do whatever it wanted with little real regard for the rules. It was an attitude enabled by politicians so delighted at the large tax revenues that they ignored the dangers of the overmighty barons of that time.

And the second?

It is an indifference to ordinary people, to the human consequences of misbehaviour, to the impact on others.

This quote from the above article explains so much about the Post Office’s and government’s obduracy about putting this right.

“There is the indifference which can be one of the causes of a problem. But what is often worse is the indifference shown to victims after problems have arisen. It is hard to understand the callousness of some decisions. Perhaps it is made easier by forgetting or ignoring those who are affected.

It feels like indifference to those on the receiving end. But perhaps its impulse is less the effect on the victims but more a desire to save face by those responsible……

It harms an institution’s self-image and, often, of senior people within it. “We got it wrong.” is hard to say. If “we get it wrong” what sort of a “we” are we, really?”Avoiding the shame of having to admit that your actions or inactions have been responsible for the suffering of others is what drives this defensiveness and indifference.”

• You see this in the evidence given by Post Office staff in the Williams Inquiry.
• You see it in the evidence given by the Post Office’s internal and external lawyers.
• You see it in the response at Board level, which also manages to suggest that criticisms of its staff are somehow unacceptable and unfair and unkind, as if they were the true victims. The combination of arrogance and narcissism must be hard to bear for those who really have suffered.
• You see it in the response by the government. It gives the impression of being a random passer-by at the scene of accident caused by complete strangers ineffectually using a hankie to mop up blood and expecting huge thanks. In reality, it is the owner and funder of the Post Office and without its say-so and money the Post Office would cease to exist overnight.

What you also see in those other cases is how those responsible for harm done to others got away with it, were not made accountable, suffered no adverse consequences.

We are seeing that in this case too. Look at all the senior people in the period between 2000 – 2012 (when Paula Vennells was appointed CEO) when prosecutions were happening despite the knowledge that senior people in the Post Office, Fujitsu and government knew about Horizon’s difficulties and deficiencies. Look at how they have flourished in well paid jobs with their time in charge of an organisation at the heart of the worst miscarriage of justice in English history airbrushed away or ignored.

It feels as if this is more of the same: the powerful abusing the powerless. Because they can. Because they know they are untouchable. Because even if disciplinary or civil or criminal proceedings are brought, those Post Office prosecutors, investigators and lawyers, external lawyers and Fujitsu employees and others will benefit from the protections and rights and compliance with the rules and a fair trial which the Post Office denied the subpostmasters. We know why they should get those protections. But to those who have suffered as a result of their actions, it must feel like yet another unfairness to be added to those they’ve already endured, another example of how the powerful benefit at the expense of the powerless.

Will those who did wrong be held to account this time?

What about those others who set up the structures or took decisions or made laws which enabled this scandal to happen: the Ministers, the civil servants, the Law Commission, the MPs?

What sort of accountability should they face?