Alan Bates and JFSA won’t back down in fight with government and Post Office

Converting the whitewash review

One example is pressure for a statutory public inquiry. Without pressure from the JFSA and its campaigning supporters, the inquiry might not have been achieved.

While government politicians slap each others’ backs, claiming credit for implementing a statutory public inquiry, they only did so when they ran out of road.

After the 2019 High Court victory when the JFSA proved the Horizon system was to blame for the unexplained accounting shortfalls – a phenomenal achievement in itself – Bates and the JFSA could have walked away with vindication. But the first thing Bates told Computer Weekly was: “Now I want a public inquiry.”

Supportive parliamentarians immediately came to Bates’ support, but achieving a judge-led public inquiry, seen by many as the only way to get to the bottom of the scandal, was an uphill struggle due to the massive potential implications for the government.

A full public inquiry cannot be forced, and is, in effect, a gift from a government wanting to be seen as doing the right thing. If the government wants to avoid an inquiry, there is little campaigners can do unless enough MPs join calls for one and exert pressure in the House of Commons by voting against government on other bills in protest. But, with a government majority of about 80 at the time, it would have taken all opposition MPs and a significant group of Conservative MPs to back an inquiry.

In February 2020, Kate Osborne, Labour MP for Jarrow, asked then prime minister Boris Johnson whether he would commit to an independent inquiry.

Osbourne said: “[The Post Office Horizon scandal] has resulted in bankruptcy, imprisonment and even suicides. Will the prime minister today commit to an independent public inquiry?”

Johnson said he was “happy to commit to getting to the bottom of the matter in the way that she recommends”.

Due to the ambiguity of Johnson’s words, Computer Weekly contacted Number 10 for more details, specifically asking if the prime minister was committed to a full public inquiry and whether it would be judge led. The response made clear that a decision had not been made. In answer to Computer Weekly’s question, the government statement said: “The Department for Business, Energy and Industrial Strategy is working actively with the Post Office on this matter and will hold them to account on their progress. We are also looking into what more needs to be  done.”

By June 2020, the government had announced a “review” of the Post Office Horizon IT scandal, quickly described by campaigners as “pointless” and “pathetic”.

Peer James Arbuthnot, former MP for Hampshire East, who campaigned for the subpostmasters affected, said the government review was “a pathetic response to a national outrage”.

“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,” he said at the time. “The purpose of an independent inquiry should be to establish the truth, rather than to protect the government from any suggestion of blame.”

Paul Scully, then minister for small business, said the independent review would have similar investigative powers as a judge, but the terms of reference do not imply this.

Back then, Bates described the minister’s independent review as “a pointless exercise in futility”. He added: “We’ll wait for the judge-led public inquiry.”

In an email to its members, the JFSA said it would not engage with what it described as a sham. “We need to know who in government took such disastrous decisions, and who failed to undertake their duties that led to us having to pursue the Post Office through the courts, costing each of us £86,000 (legal costs),” it said. “Who lied? Who knew what? That’s what we want to know, not what lessons have been learned to help Post Office and government going forward – that has no interest to us.”

Another major setback for the government’s plan came when forensic accounting firm Second Sight, which investigated Horizon at the Post Office’s request and in doing so revealed its flaws, also refused to take part in the review. Second Sight said: “We see no point in supporting a review with such inadequate terms of reference – and we will not do so.”

In Parliament, the chair of the Department for Business, Energy and Industrial Strategy (BEIS) select committee, then Darren Jones, also urged the government to give its planned review of the Post Office Horizon IT scandal the power to summon individuals to give evidence under oath. By October 2020, MPs began demanding the government provide a statutory public inquiry, and in March 2021, after the existing inquiry had already begun, the JFSA applied for a judicial review of a government inquiry into the scandal, which it described as a “whitewash”. This heaped more pressure on the government.

“Please treat this letter as a pre-action letter within the pre-action protocol for judicial review,” read the letter from JFSA solicitors at the time. “Our client intends to challenge the decision dated 9 March 2021 of [BEIS] refusing to pause the current non-statutory Post Office Horizon IT Inquiry, to re-establish this inquiry as a statutory inquiry and to hold a consultation on the terms of reference, to take account of pressing matters of public importance, including inter alia the question of abusive prosecutions of subpostmasters.”

The letter to BEIS was the first formal step in seeking a judicial review, where a judge would review the lawfulness of the Horizon inquiry but not be limited to that alone. By May, the government was cornered, and the inquiry was set to be made statutory with the power to compel witnesses and evidence. Minister Scully said: “The government has now given notice to convert the inquiry into a statutory inquiry and at the same time amend the inquiry’s terms of reference.”

In a written statement, he added: “Government wants to be fully assured that through the inquiry there is a public summary of the failings associated with Post Office’s Horizon IT system.”

Battle for financial redress

But another battle raged – and is still raging. The financial redress of victims might seem to have been sorted out to those new to the scandal, but it’s far from concluded. Furthermore, the government, which is using taxpayers’ money to foot the bill, was dragged kicking and screaming to the position it has adopted today.

After the JFSA won in court and the 555 successful claimants received derisory financial redress after legal costs were paid, the JFSA demanded that the Post Office, and therefore government, paid these costs. The Post Office had set up a compensation scheme for subpostmasters affected, but excluded members of the JFSA because it said the court settlement was “full and final”.

At the beginning of 2020, Bates wrote to Kelly Tolhurst MP, minister for small business, consumers and corporate responsibility, part of the BEIS, demanding the government pay costs so the damages were more appropriate. The government refused. Tolhurst replied in a letter: “I note that the settlement agreed with the Post Office included all legal and other costs. In those circumstances, I must respectfully refuse your request for payment.

“In engaging in mediation, it is almost invariably necessary for the parties to make difficult compromises. It also requires a recognition of the limits that the law places on what sums might be recoverable. I have no doubt that the process was a challenging one, particularly bearing in mind the long history, and I thank you and all the claimants for your participation to finally resolve this matter and enable the parties to move forward.”