Data (Use and Access) Bill [HL]

Lord Arbuthnot of Edrom Excerpts

Committee stage
Wednesday 18th December 2024 Grand Committee

[Lord Kirkhope of Harrogate (Con)]

My Lords, following on from what I said on earlier amendments, this is worse than what the noble Lord, Lord Clement-Jones, has just expressed. Indeed, I fully support the amendments of my noble friend Lord Holmes. However, this just demonstrates, yet again, that unless we pull ourselves together, with better smart legislation that moves faster, we will never ever catch up with developments in technology and AI. This has been demonstrated dramatically by these amendments. I express concerns that the Government move at a pace that government always moves at, but in this particular field it is not going to work. We are going to be disadvantaged and in serious trouble, unless we can move a bit faster.

[Lord Arbuthnot of Edrom (Con)]

My Lords, I rise briefly but strongly to support my noble friend Lord Holmes. The CyberUp campaign has been banging this drum for a long time now. I remember taking part in the debates in another place on the Computer Misuse Act 34 years ago. It was the time of dial-up modems, fax machines and bulletin boards. This is the time to act, and it is the opportunity to do so.

[Lord Clement-Jones (LD)]

My Lords, we ought to be mindful and congratulate the noble Lord on having been parliamentarian of the year as a result of his campaigning activities.

[Lord Arbuthnot of Edrom (Con)]

My Lords, it has taken 34 years.

[Lord Bethell (Con)]

My Lords, I rise to make a brief but emphatic comment from the health constituency. We in the NHS have been victims of appalling cyber- hacking. The pathology labs in south London were hacked and that cost many lives. It is an example of where the world is going in the future unless we act promptly. The emphatic call for quick action so that government keeps up with world changes is really well made. I ask the Minister to reflect on that.

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[Lord Arbuthnot of Edrom (Con)]

My Lords, I shall speak very briefly. I have a great deal of agreement with what the noble Baroness, Lady Kidron, the noble Lord, Lord Russell, and my noble friend Lord Bethell have said. I am rising to nitpick; I apologise for that, but I suppose that is what Committee is for.

The final line of proposed new subsection (da), to be inserted by Amendment 198, refers to

“different characteristics including gender, race, ethnicity, disability, sexuality, gender”.

On our first day in Committee, I raised the importance of the issue of sex, which is different from gender or sexuality. We need to make sure that we get the wording of this amendment, if it were to be accepted by the Government, absolutely right.

[Lord Knight of Weymouth (Lab)]

My Lords, I shall also speak extremely briefly, as one of the three veterans of the Joint Committee present in Committee today, to reinforce my support for these amendments. The Government should be congratulated on Clause 123. It is welcome to see this movement but we want to see this done quickly. We want to ensure that it is properly enforceable, that terms of service cannot be used to obstruct access to researchers, as the noble Lord, Lord Bethell, said, and that there is proper global access by researchers, because, of course, these are global tech companies and UK users need to be protected through transparency. It is notable that, in the government consultation on copyright and AI published yesterday, transparency is a core principle of what the Government are arguing for. It is this transparency that we need in this context, through independent researchers. I strongly commend these amendments to the Minister.

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I hope we will have a ministerial answer from the Dispatch Box that agrees to deal with this issue as a matter of urgency before Report, not one saying it is complicated. We know it is complicated, but for the postmasters, the nurses or anyone else whose life or livelihood has been taken or threatened by a bug, the status quo is unacceptable. Twenty-five years is too long for the law to assert something that is patently false. The MoJ has been looking at this issue in detail for more than five years and I have sought an urgent answer, along with the noble Lord, Lord Arbuthnot, for the past five months. If it is too complicated for the MoJ, I have a group of eminent lawyers and computer scientists who would happily do the task for it. I beg to move.

[Lord Arbuthnot of Edrom (Con)]

My Lords, I declare my interest as a member of the Horizon Compensation Advisory Board. When, on 24 April this year, the noble Baroness, Lady Kidron, proposed an amendment to remove the presumption about the reliability of computer evidence, the noble Baroness who is now the Minister added her name to it—oh the perils of moving from opposition to government.

My noble friend Lord Camrose—the Minister at the time—in a sympathetic speech, resisted that amendment on the basis, first, that there were shocking failures of professional duty in the Post Office case. This was quite true, but they were facilitated by the existence of the presumption. His second reason was that taking us back to the law of 1999, as the noble Baroness, Lady Kidron, eloquently set out just now, would risk undermining prosecutions because we would need to get certificates of accuracy in cases such as breathalysers and those involving emails. There may have been something in that, so the noble Baroness has proposed an amendment that is designed to get round that second point.

I suspect that the Minister will resist this amendment too, but for reasons that I hope she will set out clearly, because we may then decide to move a different amendment on Report. We are making all the running on this—or at least the noble Baroness, Lady Kidron, is, with my full support and, I know, that of the noble Lord, Lord Clement-Jones. I take a moment out of this Committee to pay tribute to their work ethic in this Committee, which has been quite phenomenal.

The Government do not seem to have the issue quite as close to the top of their priorities as we suggest. Without repeating all that I said on 24 April, I will summarise it as follows. Paul Marshall, the barrister, has pointed out that computer evidence is hearsay, with all the limitations that that implies. Modern computer programs are too large to be exhaustively tested. If computer programs are inherently unreliable, it is wrong to have a presumption that they are reliable. That issue will grow with the growth of artificial intelligence.

The presumption that computer evidence is reliable leads either to such things as we saw occur in the Post Office scandal, with the Post Office essentially taunting the sub-postmasters, saying, “If you can’t show us what is wrong with the computer evidence, we don’t have to show you that evidence”—a shocking case of Catch-22; or to lawyers and courts voluntarily abandoning the presumption and denigrating all computer evidence, whether or not it deserves to be denigrated. That might lead, for example, to some defendants being acquitted when the evidence would require that they be convicted. We are trying to help the Government find a way through a problem that they recognise and assert exists. Will they please give us some help in return? This is both serious and urgent. Just saying that it is very difficult does not begin the process of putting it right.

Post Office: Capture System

Lord Arbuthnot of Edrom Excerpts

Thursday 12th December 2024 Lords Chamber

Asked by

[Lord Arbuthnot of Edrom]

To ask His Majesty’s Government what plans they have to overturn the convictions of sub-postmasters or former Post Office employees convicted in relation to the Capture system.

[The Parliamentary Under-Secretary of State, Department for Business and Trade and Department for Science, Information and Technology (Baroness Jones of Whitchurch) (Lab)]

My Lords, I pay tribute to the important work that the noble Lord has done in campaigning for justice for the postmasters—and indeed his ongoing work on that issue.

We were concerned to learn about the issues outlined in the Kroll report, which related to the Capture system. However, the report did not comment on whether the convictions were unsafe. As the noble Lord will know, the Government are committed to responding to the report, and that response will be published next week. In the meantime, convictions in relation to the Capture software are being reviewed by the Criminal Cases Review Commissions. The UK Government and the Post Office are assisting them with their requests for information, and I encourage all those who believe they have been wrongly convicted to contact the CCRC.

[Lord Arbuthnot of Edrom (Con)]

I am grateful to the Minister for that Answer. It is now clear from the Kroll report that the Minister referred to that the Post Office’s behaviour in relation to the Capture system was just as bad as its behaviour in relation to Horizon. The Horizon Compensation Advisory Board—I declare an interest as a member of it—wrote to the Lord Chancellor in November saying that there was no difference between the Horizon victims and the Capture victims on the question of whether they should have their convictions overturned.

Might the Government consider an alternative approach, which might not offend the understandable concerns of those who do not like the idea of Parliament overturning judicial decisions? Earlier this year the noble and learned Lord, Lord Burnett, who I see in his place, proposed such an alternative arrangement, which involved the judges in an appropriate way. Perhaps we can take the opportunity of reducing the evidential requirements to take a case to the Criminal Cases Review Commission.

[Baroness Jones of Whitchurch (Lab)]

I thank the noble Lord for that. The proposal for the Horizon cases from the noble and learned Lord, Lord Burnett, related to the Lord Chancellor taking a power to refer cases to the Court of Appeal, and putting in place a statutory presumption that any convictions are unsafe unless there is evidence to the contrary. As noble Lords will know, this would represent a significant departure from existing appeals processes, and any further exploration of such an approach would need careful consideration, not just for this case but potentially for others. That is not to say we are dismissing it; it would be under review. I emphasise that, unlike Horizon, we do not yet have evidence that the flaws in the Capture system resulted in wrongful convictions. In fact, the Kroll report is clear on this point, stating:

“Kroll does not provide comment on whether any convictions arising from sub-postmasters using Capture could be considered unsafe”.


Part of the problem with the Kroll report is that because it related to the 1990s it had some difficulty in getting the documentation to assess whether that was the case.

Data (Use and Access) Bill [HL]

Lord Arbuthnot of Edrom Excerpts

Committee stage
Tuesday 3rd December 2024 Grand Committee

[The Deputy Chairman of Committees (Baroness McIntosh of Hudnall) (Lab)]

My Lords, Amendment 5 is in the name of the noble Lord, Lord Lucas, whom I do not see with us. Would the noble Lord, Lord Arbuthnot, like to move it on his behalf?

[Lord Arbuthnot of Edrom (Con)]

I am grateful. I do not know about the amendment in the name of the noble Lord, Lord Lucas, but I wonder whether I might speak to Amendments 34 and 48.

[The Deputy Chairman of Committees (Baroness McIntosh of Hudnall) (Lab)]

Would the noble Lord be prepared to move Amendment 5 first? He need not necessarily speak to it at any length. That said, the noble Lord, Lord Lucas, is now with us, so the problem is solved.

Amendment 5

--- Later in debate ---

[Lord Arbuthnot of Edrom (Con)]

My Lords, I am pleased that my noble friend Lord Lucas managed to make it, because I found him extremely persuasive and I agree with what he said. I shall return to the issue that his second amendment dealt with—namely, the issue of sex. I thank the organisation Sex Matters for its briefing on Amendments 34 and 48. I am not sure why there are no explanatory notes to these but I referred to the point in my speech at Second Reading, and I hope I will be able to explain it adequately now.

The core aim of the digital verification system that we are legislating for is to enable people to prove who they are and to provide information about themselves. The reason this system of digital identity can be trusted with our data, our safety and our personal and economic lives is that the information it contains comes from authoritative sources. It draws on information in my passport or my driving licence, which itself comes from information on my birth certificate, which itself is a certified copy of the entry on the birth register, which before that came from the information recorded at the hospital where I was born. Actually, I was born at home; nevertheless, the issue remains true.

However, if the chain of integrity of data is broken, the system of digital verification is no longer trustworthy. The Bill contains provision to secure the reliability of digital verification services by means of a carefully constructed framework, a register of providers, an information gateway and a trust mark, but there is a flaw, which my noble friend has referred to, and it has been pointed out by the human rights charity Sex Matters. The digital verification system that has recently been published in its gamma edition, after several years of development, assumes that government sources are reliable and accurate, but, when it comes to the attribute of sex—whether someone is male or female—we know that those records are not accurate or reliable.

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Moved by

[Lord Arbuthnot of Edrom]

7: Clause 3, page 5, line 28, at end insert—
(f) provision requiring that third party recipients of customer data publish regular statements on their cyber resilience against specified standards and outcomes.”Member’s explanatory statement
This amendment would give the Secretary of State or the Treasury scope to introduce requirements on third party recipients of customer data to publish regular statements on their cyber resilience against specified standards and outcomes.

[Lord Arbuthnot of Edrom (Con)]

My Lords, Amendment 7, the first in this group is a probing amendment and I am extremely grateful to ISACA, an international professional association focused on IT governance, for drafting it. This amendment

“would give the Secretary of State or the Treasury scope to introduce requirements on third party recipients of customer data to publish regular statements on their cyber resilience against specified standards and outcomes”.

Third parties play a vital role in the modern digital ecosystem, providing businesses with advanced technology, specialised expertise and a wide range of services, but integrating third parties into business operations comes with cyber risks. Their access to critical networks and all the rest of it can create vulnerabilities that cyber- criminals exploit. Third parties are often seen as easier targets, with weaker security measures or indirect connections serving as gateways to larger organisations.

Further consideration is to be given to the most effective means of driving the required improvements in cyber risk management, including, in my suggestion, making certain guidance statutory. This is not about regulating and imposing additional cost burdens, but rather creating the environment for digital trust and growth in the UK economy, as well as creating the right conditions for the sustainable use of emerging technologies that will benefit us all. This is something that leading associations and groups such as ISACA have been arguing for.

The Cyber Governance Code of Practice, which the previous Administration introduced, marks an important step towards improving how organisations approach cybersecurity. Its primary goal is to ensure that boards of directors should take their proper responsibility in mitigating cyber risks.

While that code is a positive development, compliance is not legally required, which leaves organisations to decide whether to put their priorities elsewhere. As a result, the code’s effectiveness in driving widespread improvements in cyber resilience will largely depend on their organisation’s willingness to recognise its importance. The amendment would require businesses regularly to review and update their cybersecurity strategies and controls, and to stay responsive to evolving threats and technologies, thereby fostering a culture of continuous improvement. In addition, by mandating ongoing assessments of internal controls and risk-management processes, organisations will be better able to anticipate emerging threats and enhance their ability to detect, prevent and respond to cyber incidents. I beg to move.

[Lord Clement-Jones (LD)]

My Lords, this is a fairly disparate group of amendments. I am speaking to Amendments 8, 9, 10, 24, 30, 31 and 32. In the first instance, Amendments 8, 9, 10 and 30 relate to the question that I asked at Second Reading: where is the ambition to use the Bill to encourage data sharing to support net zero?

The clean heat market mechanism, designed to create a market incentive to grow the number of heat pumps installed in existing premises each year, is set to be introduced after being delayed a year due to backlash from the boiler industry. If government departments and partners had access to sales data of heating appliances, there would be a more transparent and open process for setting effective and realistic targets.

I have been briefed by Ambient, a not-for-profit organisation in this field. It says that low visibility of high power-consuming assets makes it challenging to maintain grid stability in a clean-power world. Low visibility and influence over future installations of high power-consuming assets make it difficult to plan for grid updates. Inability to shift peak electricity demand leads to higher capacity requirements with associated time and cost implications. Giving the Government and associated bodies access to utility-flexible tariff data would enable the Government and utilities to work together to increase availability and uptake of tariffs, leading to lower peak electricity demand requirements.

Knowing which homes have the oldest and least efficient boilers, and giving public sector and partners access to the Gas Safe Register and CORGI data on boiler age at household level, would mean that they could identify and target households and regions, ensuring that available funds go to those most in need. Lack of clarity on future clean heating demand makes it challenging for the industry to scale and create jobs, and to assess workforce needs for growing electricity demand. Better demand forecasting through access to sales data on low-carbon heating appliances would signal when and where electrification was creating need for workforce expansion in grid management and upgrade, as well as identify regional demand for installers and technicians.

The provisions of Part 1 of the Bill contain powers for the Secretary of State to require the sharing of business data to customers and other people of specified description. It does not indicate, however, that persons of specified description could include actors such as government departments, public bodies such as NISO and GB Energy, and Ministers. An expanded list of suggested recipients could overcome this issue, as stated in Amendment 9 in my name. It makes no provision for the format of information sharing—hence, my Amendments 8 and 10.

In summary, my questions to the Minister are therefore on: whether it has been considered how the primary legislation outlined in the Bill could be exercised to accelerate progress towards clean power by 2030; whether climate missions such as clean power by 2030 or achieving net zero are purposes “of a public nature” in relation to the outline provisions for public bodies; and whether specifying the format of shared business data would enable more efficient and collaborative use of data for research and planning purposes.

Coming on to Amendments 24, 31 and 32, the Bill expands the potential use of smart data to additional public and private sector entities, but it lacks safeguards for sensitive information regularly used in court. It makes specific provision for legal privilege earlier in the Bill, but this is not extended in provisions relating to smart data. I very much hope that the Government will commit to consult with legal professions before extending smart data to courts.

Many of us support open banking, but open banking is being used, as designed, by landlords to keep watching tenant bank accounts for months after approving their tenancy. Open banking was set up to enhance inter- operability between finance providers, with the most obvious example being the recent new ability of the iPhone wallet app to display balances and recent transactions from various bank accounts.

Open banking approval normally lasts six months. While individual landlords may not choose this access, if given a free choice, the service industry providing the tenant-checking service to landlords is strongly incentivised to maximise such access, otherwise their competitors have a selling point. If open banking is to be added to the statute book, the Bill should mandate that the default time be reduced to no more than 24 hours in the first instance, and reconfirmed much more often. For most one-off approval processes, these access times may be as short as minutes and the regulations should account for that.

Coming on to Amendment 31, consumers have mixed feelings about the potential benefits to them of smart data schemes, as shown in polling such as that carried out a couple of years ago by Deltapoll with the CDEI, now the Responsible Technology Adoption Unit, as regards the perceived potential risks versus the benefits. Approximately one-quarter of respondents in each case were unsure about this trade-off. Perhaps unsurprisingly, individuals who said that they trusted banks and financial institutions or telecommunications providers were more likely to support open finance and open communications, and customers who had previous experience of switching services more frequently reported believing that the benefits of smart data outweighed the risks.

Is it therefore the Government’s expectation that people should be compelled to use these services? Open banking and imitators can do a great deal of good but can also give easy access to highly sensitive data for long periods. The new clause introduced by Amendment 31 would make it the same criminal offence to compel unnecessary access under these new provisions as it already is to compel data provision via subject access requests under the existing Data Protection Act.

Amendment 32 is a probing amendment as to the Government’s intentions regarding these new smart data provisions. In the Minister’s letter of 27 November, she said:

“The Government is working closely to identify areas where smart data schemes might be able to bring benefits. We want to build on the lessons learned from open banking and establish smart data schemes in other markets for goods and services.”


I very much hope that the Minister will be able to give us a little taste of what she thinks these powers are going to be used for, and in what sectors the Government believe that business can take advantage of these provisions.

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[Baroness Jones of Whitchurch (Lab)]

The noble Lord is tempting me. What I would say is that, once this legislation is passed, it will encourage departments to look in detail at where they think smart data schemes can be applied and provide a useful service for customers and businesses alike. I know that one issue that has been talked about is providing citizens with greater information about their energy supplies—the way that is being used and whether they can use their energy differently or find a different supplier—but that is only one example, and I do not want people to get fixated on it.

The potential is enormous; I feel that we need to encourage people to think creatively about how some of these provisions can be used when the Bill is finally agreed. There is a lot of cross-government thinking at the moment and a lot of considering how we can empower citizens more. I could say a lot off the top of my head but putting it on the record in Hansard would probably be a mistake, so I will not be tempted any more by the noble Lord. I am sure that he can write to me with some suggestions, if he has any.

[Lord Arbuthnot of Edrom (Con)]

My Lords, one problem with cybersecurity is the fact that, if one company is spending money on it but is worrying that its competitor companies are not, they might feel that an element of compulsion would be helpful. I just raise that with the Minister, who suggests that some of these things might be better in the cybersecurity and resilience Bill. My noble friend Lady Neville-Jones and I think she is right, so I beg leave to withdraw my amendment.

Amendment 7 withdrawn.

Data (Use and Access) Bill [HL]

Lord Arbuthnot of Edrom Excerpts

2nd reading
Tuesday 19th November 2024 Lords Chamber

[Lord Arbuthnot of Edrom (Con)]

My Lords, it is always rather daunting following the noble and learned Lord, Lord Thomas. I think the safest thing to say, which has the added benefit of being true, is that I agreed with him.

I declare my interests as set out in the register, in particular that I am a member of the Horizon Compensation Advisory Board and the chair of the advisory panel of Thales UK, which makes the British passport. As the noble Lord, Lord Knight, said, this Bill is a wonderful opportunity to talk about everything that is not in it and to discuss further measures that could be included. The noble Baroness, Lady Kidron, mentioned the amendment she moved on 24 April to the predecessor Bill, designed to deal with the presumption that computer evidence is reliable, despite the fact that we all know that it is not. We shall need to come to that presumption in Committee.

I supported the amendment from the noble Baroness in Committee earlier this year, although I accept—as I think she does—that simply returning to the position as it was in 1999, before the presumption existed, may not be the best solution. We need some method, for example, of accepting that breathalysers, on the whole, work as they are intended to do, and that emails, on the whole, work as they are intended to do, and we should not have to get a certificate of accuracy from Microsoft before every trial.

The need to find a solution to the problems so brutally exposed by the Post Office scandal is urgent. In the Post Office cases, in essence, the proper burden of proof was reversed and hearsay evidence that was false was accepted as gospel truth. As a result of Horizon and the appalling human behaviour that accompanied it, the lives of hundreds, perhaps thousands, of postmasters were ruined and the UK and Fujitsu are going to have to pay billions in compensation. So this matter is urgent.

The solution may be, as Alistair Kelman has recommended, a set of seven or so detailed statements setting out what has been done to ensure that the computer evidence is reliable. It may be, as a senior and highly respected judge has recommended, a division between complex cases, such as those involving a system such as Horizon, and simple cases, such as those involving breathalysers and emails, with more stringent evidentiary requirements for the complex cases. It may be, as Professor Steven Murdoch has suggested, that documents designed to test the reliability of computer systems should be made available to the other side and be subject to challenge. It may be something else, but this Bill is an opportunity to consider, examine and test those solutions, and another such opportunity may not come along quickly. I repeat: this matter is urgent.

On a different matter, Part 2 of the Bill establishes a regulatory framework for the provision of digital verification services in the UK. We need to be clear that having a clear and verifiable digital identity is a completely different matter from going down the route of identity cards. This is not an identity card Bill. It is an essential method of establishing, if you want or need to have a digital identity, that you are who you say you are and you have the attributes that you say you have. It is a way of establishing relevant facts about yourself without having to produce gas bills. I do not know about other noble Lords, but I find producing gas bills rather tricky now that they are almost all online.

Sometimes the fact you need to establish will be age: to establish that you are allowed to drink or to drive, or that you are still alive, or whatever. Sometimes it will be your address; sometimes it will be your sex. We do not want men going to women’s prisons, nor men who identify as women working in rape crisis centres. Sex is an issue on which it is necessary to have some degree of factual clarity in those circumstances where it matters. The Bill, again, is an opportunity to ensure that this factual clarity exists in the register of births. It will then be for the individual to decide whether to share the information about their sex, age, or whatever.

An organisation called Sex Matters—I am grateful for the briefing—issued a report yesterday pointing out that, at the moment, data verification services are not authoritative, in that they allow people to change their official records to show them as the opposite sex on request. One consequence is that, for example, transgender people risk being flagged up as a synthetic identity risk and excluded, for example, from banking or travel. Another is that illnesses may be misdiagnosed or that medical risks may fail to be identified.

So this Bill is a rare opportunity to put right some things that currently need to be addressed. Those of us speaking today have received a number of helpful briefings from organisations interested in various issues: I have mentioned only a couple. I hope we will take the opportunity given to us by the Bill to take on board several of those proposals.

Future of the Post Office

Lord Arbuthnot of Edrom Excerpts

Monday 18th November 2024 Lords Chamber

[Lord Arbuthnot of Edrom (Con)]

My Lords, like the Minister, I believe in the Post Office. I see its future as a network of essential hubs spread throughout the country, holding communities together and giving people the chance to do their banking, to meet on a social basis, and to interact with the Government, other agencies and more services, including healthcare. That future would build up the country’s resilience. If that is right, should we not be expanding the network rather than reducing it?

[Baroness Jones of Whitchurch (Lab)]

First, I pay tribute to the noble Lord for all the work he has done on this over the years. Nobody knows the challenges better than he does, and I absolutely agree: there is potentially a rosy future for post offices in exactly the way he described—as a network of basic service provision hubs, in addition to the banking hubs that we also see expanding. We need to ensure that we get the finances of this right, but we can all see the potential of the Post Office network to provide far more than it already does. It can provide a community hub, in the way that we were just talking about, but also a public service hub. Particularly as we move towards a lot of services being digital and online, post offices will have a role to provide for people who are digitally excluded in some way, so that they have that point of contact and a person can help them access those services, face to face. They have an essential role in the future, in the way that the noble Lord talked of.

Post Office (Horizon System) Offences Bill

Lord Arbuthnot of Edrom Excerpts

Committee stage
Thursday 23rd May 2024 Lords Chamber

Moved by

[Lord Arbuthnot of Edrom]

2: Clause 1, page 1, line 10, leave out paragraph (c)

[Lord Arbuthnot of Edrom (Con)]

My Lords, in the unavoidable absence of the noble and learned Lord, Lord Falconer, I shall speak to Amendments 2, 4, and 6, and to the question that Clause 3 stands part. I shall briefly touch on Amendment 1, which intended to include in the convictions to be overturned by this Bill those convictions that were secured by the Department for Work and Pensions. Although I have concerns about those convictions—I thank in particular a former sub-postmaster, Chris Head, for his tireless work on the subject—I do not think that those concerns have yet reached the extraordinary threshold required to ask your Lordships, as a legislature, to overturn convictions made by the courts.

However, I take a different view about those cases that have been before the Court of Appeal. We shall, I hope, decide today in Parliament to overturn the convictions of hundreds of sub-postmasters. We need to try to be fair. as between sub-postmasters. in choosing those whose convictions we overturn. The 13 cases which have been before the Court of Appeal in one way or another are not outstandingly wicked, compared with the hundreds of other sub-postmasters whose convictions will be overturned. Those 13 will not necessarily have the recourse of going back to the Court of Appeal because there may be no new evidence in their individual cases—new evidence which other sub-postmasters whose convictions are being overturned by this Bill are not required to provide. That is not fair, and I believe we should agree to Amendments 2, 4 and 6, and we should take out Clause 3.

[Baroness Brinton (LD)]

My Lords, I have Amendment 14 in this group, but just before I get to that, from these Benches, I support everything that the noble Lord, Lord Arbuthnot, just said. Had we had a proper, usual style of Committee we would have debated this for much longer and perhaps even taken things to a vote, but we recognise that times are different.

I have tabled Amendment 14 because I had a bit of a debate with the Minister about the previous software, Capture. I am very grateful to him for the private meeting that we had, where we discussed my concerns in some more detail. I hope he will be able to give some more reassurance.

Because there is now an inquiry or an investigation into the Capture process, it obviously cannot be included within the Bill. However, should that inquiry discover that the same sort of faults happened, and the Post Office used the same sort of criminal investigation procedure, could the Minister please explain, hypothetically, what would happen to Capture? Would it require a similar Bill to remedy the position of those postmasters, should they be found to have been incorrectly charged and then convicted? This is important because although there are differences between Capture and Horizon the more that is revealed, the more there are some striking similarities, both in Fujitsu’s denial of glitches and bugs and in the way the Post Office investigation team prosecuted cases.

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[Lord Offord of Garvel (Con)]

I thank the noble Lord for that. My understanding is that, in this case, which is unprecedented, the CCRC will be able to review new evidence in relation to Horizon.

Amendment 15, in the name of the noble and learned Lord, Lord Falconer of Thoroton, is on consequential provision. The Government are satisfied that the current provisions are sufficient to ensure that the Bill can be amended and modified to give full effect to the intentions of the Act. I hope the noble and learned Lord will be happy not to move the amendment on that basis.

Amendment 16, in the name of the noble and learned Lord, Lord Falconer, is on territorial extent. This proposed new clause would require the Government to conduct a review on the application of the Bill to Scotland. The arguments for the Bill’s extension to Scotland have already been explored at length in the other place, where MPs voted against Scotland’s inclusion. Therefore, the Government do not believe that a further review is necessary. I was pleased to see that the Scottish Government introduced their own legislation in the Scottish Parliament to quash the convictions of Scottish postmasters last month. We will continue to support them in that approach to ensure that Scottish postmasters receive the justice they deserve. I hope the progress of the Scottish Bill will satisfy the noble and learned Lord and that he will be happy not to move his amendment.

[Lord Arbuthnot of Edrom (Con)]

Will my noble friend forgive me? I am still thinking about what he said about the Court of Appeal cases. It seems he has changed his mind in the last hour and I wonder what has propelled him to do that.

Post Office (Horizon System) Offences Bill

Lord Arbuthnot of Edrom Excerpts

2nd reading
Monday 13th May 2024 Lords Chamber

[Lord Arbuthnot of Edrom (Con)]

My Lords, I declare an interest as a member of the Horizon Compensation Advisory Board, although I think it has now been renamed the Horizon redress advisory board. It is a genuine honour to be able to follow a speech such as that from the noble and learned Lord, Lord Burnett. I am grateful for what he said and for the immense amount of work that he has put into this most terrible of problems. I want to comment on some of the points that he made during his remarks, but I am grateful to him.

In the face of one of the most widespread injustices in this country—we all know the background—we needed to do something. This Bill is the Government’s answer, and I welcome it. I am extremely grateful to my right honourable friend the Prime Minister, my noble friend the Minister in this House and the Post Office Minister in another place, Kevin Hollinrake, for their astonishingly fast appreciation of the need for urgent, dramatic action and for following it through in this way. I am also grateful to my right honourable friend the Lord Chancellor for having some really difficult discussions, as we have just heard, with the judges about this.

As the noble and learned Lord, Lord Burnett, has told us, the Bill could have gone two ways: it could have gone his way, or the way that it has. The argument in favour of involving the judges, based on the separation of powers, has been carefully set out by the noble and learned Lord. It is an uncomfortable thing—some would put it much stronger—to have the legislature overturning decisions made by the judiciary, because that could form a constitutional precedent, and I accept that it does form a constitutional precedent, which would take us in the direction of totalitarianism.

I will not express a preference between the suggestion of the noble and learned Lord, Lord Burnett, and the Government’s suggestion in this legislation, because this is the Bill that we have, and I am thankful for it. I understand—of course I do—the constitutional difficulty of Parliament overturning judicial decisions: I practised as a barrister, my wife is a judge and I value the separation of powers. But I also value timely justice and the early reversal of some of the greatest unfairnesses that this country has ever seen. I want to set out the arguments against involving the judges, if only for the record. I accept that the points made by the noble and learned Lord, Lord Burnett, deal with many of the points that I will make, but, as I said—and as I know he accepts—we have the Bill that we have.

The Fraser judgments in Alan Bates’s group litigation came out in 2019. The clear consequence of those judgments was that many hundreds of convictions were unsafe. We do not know exactly how many—which is odd—but it was in the region of 1,000. Yet, by the beginning of this year, only a few more than 100 sub-postmasters had even applied to have their convictions overturned. There were several reasons for this. The first and the most important was that too many sub-postmasters wanted nothing whatever to do with a court system that had, in their view, treated them so badly. They had been utterly traumatised and wanted to put the whole ghastly experience behind them. They were simply not applying to have their convictions overturned. They wanted no contact with officials, lawyers, politicians, journalists or anybody else at all, for understandable reasons. Yet appeals rely on the appellant applying, and the current system has no procedure for mass appeals brought by the state itself. I did not quite get to the bottom of what the noble and learned Lord suggested to redress that, but it would have probably been workable. Nevertheless, we have the Bill that we have.

The second reason for not involving the courts was that, in many cases, there is no evidence. In some cases, the Post Office will have taken the evidence away from the sub-postmasters and destroyed it; in other cases, the sub-postmaster himself or herself will have given up and destroyed it; and in yet more cases, the sub-postmaster will have died. To overturn a conviction on the basis that it is unsafe, you need to establish with evidence that it is unsafe. I approve of the suggestion of the noble and learned Lord, Lord Burnett, of a presumption of unsafety, but we have the Bill that we have.

The third reason was that appealing against convictions must be done through several different stages. Appeals go to the Post Office, then to the Criminal Cases Review Commission and then to the court at different levels, with the application of different tests, sometimes leading to different outcomes, which is strange in itself. The noble and learned Lord, Lord Burnett, touched on that.

The fourth reason was that the Court of Appeal overturned only those convictions for which Horizon computer evidence was essential to the prosecution. That was an arguable limitation—although, in my personal view, wrong and unfair—in the earlier stages of the process. However, as the public inquiry has uncovered new facts about the behaviour of the Post Office, I suggest that it is a limitation that is no longer tenable. I tread carefully here because the inquiry has yet to report, but it seems that the Post Office investigators, incentivised as they were to recover money rather than to achieve justice, and the Post Office lawyers, intent on concealing evidence, tainted all the evidence produced by the Post Office in any trial.

The deaths of many of the sub-postmasters makes me remind your Lordships that this is urgent. We have to get on with it, and this Bill does that. The Bill quashes certain convictions and, by doing so, it gives rise to redress being paid to hundreds of sub-postmasters. The Bill does not itself deal with that redress. When people say that only a small proportion of sub-postmasters have received redress, they are right, but that will rapidly change with the passage of this Bill. It is an essential step to getting us to where the country wants us to be.

The question of which convictions are to be quashed is a difficult one, but nothing about this saga is easy. The Bill quashes convictions in England, Wales and Northern Ireland, but not in Scotland. I listened with interest to the suggestion from the noble Lord, Lord Browne, as to how the procurator fiscal could operate in Scotland. The Scottish Government are legislating to achieve something similar; I hope that that can be looked at carefully in Committee.

The quashed convictions under this Bill have to have been prosecuted by the Post Office or the CPS, or by the Northern Ireland authorities, but those prosecuted by the Department for Work and Pensions, for example, are not included. This too will need careful consideration in Committee. Certainly, the DWP will need to give very careful thought to the extent to which it relied on Post Office evidence and investigations, and to consider whether the convictions that it secured were any more safe than those secured by the Post Office and the CPS. Should we consider perhaps in Committee widening the scope of the Bill, so that those convictions too are overturned? I have to say that I do not know. I should very much like to hear why the Government consider that DWP convictions are safe when CPS convictions are not. I should also like to hear what the DWP is doing to re-examine its convictions to ensure that it has not relied upon tainted Post Office evidence and investigations.

Another category of convictions not quashed by this Bill is those that have already been considered by the Court of Appeal. I listened carefully to what the noble Lord, Lord Browne, said about this, and I agree with what he said. There are 13 of these cases. I am very uncomfortable indeed about this, for the following reason. The Bill overturns many hundreds of convictions. The Government accept, as they should, that some of the convictions overturned will in fact have been of sub-postmasters who were guilty of a crime. That is the price that we pay for the exoneration of the innocent. Those who have been in front of the Court of Appeal, in exactly the same way as those sub-postmasters who have been in front of other courts, may or may not be guilty. I do not think it is acceptable to tell them that they can go back to the Court of Appeal if there is new evidence, because other sub-postmasters are not being required to provide individual evidence of their innocence—a reversal of the burden of proof. These 13 sub-postmasters are being punished for their efficiency and courage in being early in taking their convictions to the Court of Appeal.

There is, of course, one new bit of evidence which the Court of Appeal did not consider in relation to these 13 cases: that all the sub-postmasters, other than these 13, are about to be exonerated. It stretches credulity to believe that the Court of Appeal would say that, out of all the hundreds of convicted sub-postmasters, it would choose for these 13 to remain convicted. Can it be fair that they should be the only sub-postmasters in the country to be left with convictions? I cannot see that the Court of Appeal would welcome a new application from them, because how could it consider anything other than the facts of these individual cases? We shall need to consider this very carefully in Committee.

The Government are to be congratulated on their speed and courage in bringing the Bill to us, but I first became involved in this matter in 2009 and Alan Bates did so in 2003. “Speed” is obviously a relative term. Let us get on with it.

Post Office Legislation

Lord Arbuthnot of Edrom Excerpts

Thursday 14th March 2024 Lords Chamber

[Lord Arbuthnot of Edrom (Con)]

My Lords, I declare my interest as a member of the Horizon Compensation Advisory Board. I pay tribute to my noble friend the Minister; to Kevin Hollinrake, the Minister in another place; to his impressive team of civil servants; to the Government in general; to Alan Bates; to ITV; and especially to Alex Jennings, of course. But, before this turns into an Oscars speech, we must acknowledge that there is much to be done.

I just want to raise one matter: those excluded from this legislation. I understand that the Government do not want to go head to head with the Court of Appeal, but some people have been excluded through the accident of fate—they have been refused permission to appeal or have had their convictions not turned down by the Court of Appeal. Will the Government encourage and, if necessary, resource and facilitate, those people who are expressly excluded for those reasons from this legislation? Will the Government encourage them to go back to the Court of Appeal for their convictions to be reconsidered? It would be quite wrong if these sub-postmasters were, through that accident of fate, the only sub-postmasters in the country to continue to have convictions against their name.

[Lord Young of Norwood Green (Lab)]

My Lords—

Horizon Scandal: Psychological Support Services

Lord Arbuthnot of Edrom Excerpts

Monday 4th March 2024 Lords Chamber

[Lord Offord of Garvel (Con)]

I thank the noble Lord for that. As far as parliamentary business is concerned, it is planned to have the legislation go through both Houses and have it all done by the Summer Recess. That is in process, and there are more announcements to follow shortly. In relation to the claims, as I have said before, 78% of claims are now settled, and compensation has been paid to 93% of postmasters, some on an interim basis. As I said in the Chamber last week, we can go only as quickly as we receive the claims. We are at the most difficult end of the claims now. For example, with the GLO 477, we have had 58 claims, of which we have settled 41. We can go only as quickly as the claims come in, and we have guaranteed that we will work to get 90% cleared within 40 working days.

[Lord Arbuthnot of Edrom (Con)]

My Lords, I declare my interest as a member of the Horizon Compensation Advisory Board. I am troubled by the Answer my noble friend has given, because how can a family member, as opposed to the sub-postmaster themselves, claim for compensation or psychological help? Many of these families have broken up. Does my noble friend agree that the mere fact that there may be a lot of family members entitled to help or compensation should not of itself be a reason for denying them that help or compensation?

[Lord Offord of Garvel (Con)]

I thank my noble friend. I once again pay tribute to his continual scrutiny of this matter, and his vital role on the advisory committee. Currently, the compensation is directed to each claimant—a postmaster or postmistress—but the whole point of having the advisory committee is to have live discussions on this. I encourage him, in that capacity, to keep those discussions going.

Post Office: Executive Remuneration

Lord Arbuthnot of Edrom Excerpts

Tuesday 27th February 2024 Lords Chamber

[Lord Johnson of Lainston (Con)]

Again, I am very grateful for this challenge; it is a very important discussion to have. The Government are responsible for setting remuneration for the board, while the bonuses that I think the noble Lord, Lord Sikka, was referring to relate to the Post Office executives, so we should separate the two. Both still need to be investigated—absolutely. I do not have the specific answer to the question relating to the Chief Secretary to the Treasury, but I will be delighted to write to the noble Baroness.

[Lord Arbuthnot of Edrom (Con)]

My Lords, either the Post Office is an independent arm’s-length organisation, or it is one for which the Government are fully responsible. Does my noble friend agree that the Post Office Horizon scandal shows that never again should Ministers refuse to answer questions relating to a body in which they own all the shares?

[Lord Johnson of Lainston (Con)]

I pay tribute to my noble friend for the astonishing work he has done on this great travesty. I am very grateful to him personally for driving this agenda, and I agree in principle with some of the comments he has just made. There seem to be an air gap between arm’s-length bodies, the Government and Ministers. It is very important that this situation allows us to review exactly how the principle of arm’s-length bodies functions, in the sense that it does not mean they are entirely out of Ministers’ or the Government’s remit and our lines of inquiry. Noble Lords would expect that of us. They remain within reach, and the inquiry will allow us to have a significant investigation into how culture and practices can be improved in the governance of such institutions.