The Rule of Law - how to circumvent it

We live in strange times. We’ve had the government trying to displace the role of the Courts in determining whether Rwanda is safe. They’re just going to declare that it is. And now the Post Office scandal will result in an Act of Parliament declaring 900 sub-postmasters to be innocent and so all entitled to substantial compensation from us. And this, in breach of the doctrine of the separation of powers and regardless of whether they are in fact innocent or guilty. In Parliament, in response to the difficulty of acquitting guilty people, the minister said:
“You ask how many Post Office cases the Criminal Cases Review Commission (CCRC) has decided not to refer to the Appeal Court to date. As of today’s date, there have been 33 such cases, out of a total of 101 completed CCRC Post Office reviews. Decisions not to refer have been reached for a variety of reasons, but a consistent feature is that there was cogent prosecution evidence in the case - extraneous to Horizon - that money was stolen by the sub-postmaster in question (for example: evidence of Post Office money having been transferred to the sub-postmaster’s personal bank account; or evidence from an eye witness who saw the sub-postmaster taking money). A number of the cases which have been turned down have also featured detailed and compelling confessions by the sub-postmaster, wherein they explained to investigators how they took the Post Office money and how they then used it.”.
If the innocent are to be declared innocent within weeks, then so will the guilty. That is the penalty of not having resolved this outstanding scandal many years ago. The only safe-guard will be that, before compensation can be claimed, a statement of innocence will have to be signed by the claimant. If subsequently that claimant is found to have made a false statement, then he can be prosecuted for fraud.

But why have we got to the position where legislation is required to put right a wrong which would normally be dealt with by the standard appeals process? There are a number of reasons. Chief amongst them was the unwillingness of the Post Office (wholly owned by the government) or Fujitsu to admit that there was a problem with the software.

As we now know, sub-postmasters with unexplained debit balances were lied to: they were told by Post Office investigators that it couldn’t have been a computer fault because no-one else had had such a difficulty.

But this was compounded by the standard advice given to ministers by the Civil Service when asked to do something about a supposedly independent company or organisation -  one in fact owned by the government. Sir Ed Davey, now Lib Dem leader, wrote to the leading sub-postmaster campaigner, Alan Bates, in 2010 when he was the relevant minister, that the Post Office must be allowed “commercial freedom to run its business operations without interference”.

The fiction of “arm’s length” independence is widespread in government. As the Times pointed out today, there are about 300 of these bodies, responsible for more than £200 billion of government spending. Activities such as setting interest rates, policing and scientific research should take place without day-to-day political meddling.

But all state-owned entities are ultimately part of government and, when they fail, must be held accountable as such. Instead, their ‘independence’ is used as an excuse to do nothing about rogue behaviour. The view is that it should be left to the company and the complainant to resolve matters in the usual way. Except of course that a real commercial entity has shareholders who will put pressure on the board to get things right in order to preserve shareholder value. The government, as sole shareholder, seems to care more about its own reputation than value.

The Courts only finally received the damning evidence of the faults in the software in 2019. This was during the case brought for compensation by Mr Bates and others. The High Court and then the Court of Appeal issued highly detailed judgements, running to something like the length of War & Peace, saying what had happened and who was responsible. The High Court Judge, Mr Justice Fraser, even wrote to the DPP to ask that action be taken against the people he had named as the culprits. That was at the end of 2019. So far no prosecutions. But suddenly, because we have had the programme on ITV, the politicians are now all squirming and wanting to show how concerned they are at the ‘worst miscarriage of justice in history’ - their words, but not apparently their responsibility for their neglect for at least the last 14 years.

We have an enquiry going on which started in July 2022 and is not likely to conclude before 2025. But, like so many enquiries, it is being used as a crutch by those actually responsible. They hope to defer exposure of their involvement until the fuss has died down. Boris Johnson used just this approach in connection with ‘Partygate’. Mind you, his day of judgement did finally come!

But those involved still say that it would be ‘inappropriate to comment until the enquiry has concluded’. The business minister, Kevin Hollinrake, was asked last month if we could strip the former Post Office boss Paula Vennells of her CBE.  “Sir Tom Scholar [the honours forfeiture chief] has said that we need to wait until the end of the inquiry,” he said. Can anyone be made to repay bonuses? “We should wait for the results of the inquiry.” Or as Lord Callanan, another business minister, was asked 18 months ago, can we make Fujitsu pay up? “We need to wait for the inquiry.” These lengthy enquiries supply valuable time for justifiable anger to die down, legal fees to mount and for the villains to move on to other well-paid posts.

For at least a decade there has been clear evidence on file at the Post Office. It was obtained by an expert employed to look into matters by the Post Office – until he started coming up with answers the Post Office managers didn’t want. The evidence made clear that the accusations and the resulting prosecutions, were deeply flawed.

The Court’s judgement then made it equally clear that the Post Office had failed to reveal masses of information to which the claimants were entitled, so meaning the convictions were by definition unsafe.

Yet, even now, less than 15 per cent of convictions have been overturned, and it was not until last month that significant amounts of compensation reached most victims. But, if all else fails, one can of course always rely upon the absurdity of Treasury procedures. The amounts stolen from the postmasters and the wrongs done are so great that the amount of compensation involved needs its approval. Which means ‘a business case’(!) must be made for payment.

The solution now proposed is of course an interference in the court process but, if steps had been taken when they should to address the wrong, then it would not have become necessary, because necessary it now is. We cannot ask these very wronged people to wait any longer either to be cleared of wrong-doing or to wait any longer to be paid a lot of money in compensation for the wrong done to them.

So why the title to this essay? Dictators take direct action, evading the constraints of the Rule of Law by putting in place judges and laws more to their taste. It seems that in a democracy we use more subtle methods to circumvent it. This scandal has been a wholesale, mainly unspoken conspiracy to breach the Rule of Law. The investigation into the sub-postmasters was, frankly, fraudulent. Those carrying out the prosecution ignored completely the main principle applicable to their responsibilities: that all the available evidence should be provided to the defendant (the lawyers involved in this should be struck off). The courts made findings but nothing effective was done until the drama was aired on television.

And so successive governments and our wonderful civil service have managed to circumvent the inconvenience caused by the Rule of Law for the last 20 years at least. They have done this whilst at the same time criticising so many others around the world for achieving exactly the same end, but using less subtlety than we seem to be capable of. 

Haven’t we done well!

Paul Buckingham

11 January 2024

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