Post Office (Horizon System) Offences Bill

Alistair Carmichael Excerpts

2nd reading
Wednesday 20th March 2024 Commons Chamber

[Jonathan Reynolds]

When we look at the precedents, it is interesting to note that there is clearly a legal difference between quashing a conviction and a pardon after an event has taken place, which is the precedent we are more familiar with. I am receptive to what colleagues are saying about a sunset clause from a judicial or safeguarding point of view. Clearly we want to capture as many people as possible who deserve to have their convictions quashed. When we get to Committee, which I assume will be on the Floor of the House, I am sure there will be an attempt to do that.

[Mr Alistair Carmichael (Orkney and Shetland) (LD)]

Is not the point about a sunset clause that none of us knows what is around the corner or what the future holds? Once this legislation has expired, the law of sod dictates that somebody somewhere will come up with a case that requires to be dealt with. That is eminently possible. A sunset clause would serve no useful purpose, other than smoothing a few ruffled judicial legal feathers.

[Jonathan Reynolds]

I hear what the right hon. Gentleman is saying, and we do not want to do Committee stage on Second Reading. We are hearing about the necessity of ensuring that, where cases fall beyond the specific circumstances—to be fair to the Government, I understand why the legislation has been drafted in this way to address this particular cohort, for simplicity and straightforwardness—they can still be identified. Some of that could be done on the numbers, but we will have time to explore this matter in Committee.

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[Jonathan Reynolds]

Hon. Members will have a chance to speak; I cannot speak for every part of the judiciary in the UK, but I believe that that is the issue. The nature of the always distinct legal system in Scotland is a key part of this, whereas in Northern Ireland it is slightly more complicated.

[Mr Carmichael]

I fear that the issue is not so much with the Scottish judiciary as with the prosecuting authorities, given the remarks already on the record from the Lord Advocate. If I may, I will offer the hon. Member for Glasgow South West (Chris Stephens), through the shadow Minister, a rational reason: it is about political accountability. The lines of political accountability lie through the Scottish Parliament and the Crown Office. There are good and compelling reasons about delay for making an exception for Northern Ireland, particularly in relation to the requirement for a full public consultation. Those arguments do not apply in Scotland.

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[Marion Fellows]

I thank the right hon. Gentleman for his intervention. There is absolutely no reason, and the Scottish Government are indeed prepared to do that. There is ongoing work on that, but it will mean that Scottish victims will have to wait longer for exoneration.

[Mr Carmichael]

The Scottish Parliament has provisions in its own Standing Orders for emergency procedures, just as we have. It would be open to it to do it in three days, if it chose to.

[Marion Fellows]

I thank the right hon. Gentleman for his intervention. I am surrounded by lawyerly people and I am not a lawyer. In fact, I sat in a room last night for a briefing where I was surrounded by lawyers and even the lawyers were agreeing that they could not agree on the right way forward. The right hon. Gentleman is absolutely correct, and the Scottish Government will do that, but they cannot do it until we see what happens with the Bill as it is brought towards enactment and until we can take into consideration all the amendments that may be necessary for Northern Ireland. That will create a delay. Yes, the Scottish Government can—I cannot say they will, because I am not a Member of the Scottish Parliament or the Scottish Government—and it is possible for the Scottish Parliament to pass a Bill in three days, but it must be aligned with the exoneration Bill passed here. Otherwise, Scottish victims will not be treated equitably and fairly.

On 10 January, the Minister spoke in this place to, I believe, the hon. Member for Edinburgh West (Christine Jardine) and said he saw no reason at that point why there could not be UK legislation. At an Interministerial Standing Committee on 12 March, the Secretary of State for Levelling Up, Housing and Communities said that he saw no reason why that could not happen. Yet a few days after that the Bill arrived in Scotland with no mention of Scotland at all. It is the Scottish Government’s belief that the Bill could be amended to take into consideration the differences in legal terms. For example, amendments would be needed to bring about alignment on embezzlement and to cover all the different crimes, if you like—well, not crimes, because the sub-postmasters did nothing wrong—so that the Bill would apply in Scotland. The Bill could clear the decks of all the things sub-postmasters were charged with and convicted for, so it is all possible. The issue is one of timing, with sub-postmasters in Scotland being told, “Okay, you’ve waited, but you’ll have to wait longer.”

In this place, and right across the work I have done over the past few years on the Post Office, there has always been cross-party agreement on getting things sorted out for the victims. As the hon. Member for Stalybridge and Hyde said, that is the point of the whole thing. It is about the victims. It is about what has happened since “Mr Bates vs the Post Office” was broadcast. I sat with my daughter-in-law, who is herself a lawyer—I don’t hold that against her—and she kept saying, “Is this true, Marion? Is this true?” and I had to say that yes, it was.

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[Mr Carmichael]

As a matter of fact, the situation is different in Scotland, where prosecutions are taken in the name of the Procurator Fiscal Service or the Lord Advocate, depending on the forum, and they receive only the report from the Post Office. The prosecution decision is made by the prosecuting authorities. I understand that in other parts of the United Kingdom the Post Office can prosecute in its own right, but that is not the situation in Scotland and that is why it is different.

[Sammy Wilson]

I am not going to enter into a debate about Scotland, because I do not have enough knowledge of the situation, but surely the way around this issue relates to the individuals responsible for having taken the prosecutions and for advising the Scottish Government. That is perhaps where we should be looking. If they are all satisfied that the decision should be taken here in Westminster, why not include that in the Bill? I am sure the Scottish nationalists can argue their case very well.

The one thing I would say as a Unionist is that I am pleased that the SNP recognises that there is a role for Westminster. If the Scottish Government want to give some of their powers to Westminster on this particular issue, I will take that as a Unionist win.

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[Mr Alistair Carmichael (Orkney and Shetland) (LD)]

It is a pleasure to follow the right hon. Member for East Antrim (Sammy Wilson). He says that he is proud as a Unionist to see this decision being taken here, but I say to him gently: be wary of Scottish nationalists bearing gifts of UK accountability, because essentially that is where we have come to today. I will pick up the point about territorial jurisdiction later, but I first want to say a word or two of more general application.

A lot of people in this debate have spoken about this legislation being unprecedented and about the concerns of some in the legal profession and the judiciary and the discomfort they feel. Those feelings of discomfort are entirely appropriate and legitimate, and I would be more concerned if they were not there. However, it is because of the wholly exceptional nature of the situation facing those prosecuted as a consequence of the deception of the Post Office and Fujitsu and the misuse of the Horizon software that we should have a Bill of this sort. I, along with my colleagues on the Liberal Democrat Benches, have no difficulty in supporting the Bill.

I should declare an interest as a recovering solicitor: it is 22-and-a-half years since I surrendered my practising certificate, no doubt to the relief of many. To my former colleagues I would say that it is worth asking why we have courts in the first place. Essentially, we have courts because it is important that there are bodies able to give the general public confidence that the various vehicles of the state work properly and that people can get justice. Do they get it right all the time? No, of course they do not. When I was a solicitor, we often used to say, “Justice has to be seen to be done, and it often has to be seen to be believed.”

Let us not forget that the judiciary are like the rest of us; if they are cut, they bleed. They are vulnerable to the same human foibles as us. They ultimately have to be accountable for people at moments like this. Those who have said that the judiciary need to take a look at themselves are right to say that. I take mild exception to the suggestion that somehow or another the doctrine of the separation of powers builds an impenetrable wall between the different legs of the constitution. It does not.

This House created the very institution of the Supreme Court barely 20 years ago. We interfere all the time in the running of the courts by setting their budgets and telling them what rules of procedure and evidence they can follow, and nobody takes exception to that. What we are dealing with here is an interference of a different order altogether, but it is one that conforms to the principle that there are occasions when this House, as a sovereign Parliament, has to act and intervene. I think the nature and scale of the injustices that have been visited on people here absolutely justify that.

The question about territorial jurisdiction is an important one. I listened very carefully to the hon. Member for Motherwell and Wishaw (Marion Fellows), who, incidentally, I rate very highly—at the risk of killing her political career stone dead by praise. I have enormous respect for how she has managed the all-party parliamentary group on post offices and the very measured and effective way she has prosecuted the case for postmasters, sub-postmasters and Post Office employees. That applies not just in relation to the Horizon scandal, but in the day-to-day operation of the Post Office itself.

It pains me to find myself in a different place from the hon. Lady. I said to her last night that I am still open to be persuaded, but my starting point has to be that we judge the issue by the outcomes for the postmasters themselves. Essentially, can we get those affected in Scotland to the same place by allowing the Scottish Parliament to do its job, constitutionally as it is charged to do, or, in order to get everybody in the same place at the same time, do we have to do it here?

[Chris Stephens]

To kill the right hon. Gentleman’s political career, I should say that I have the same respect as he has for my hon. Friend the Member for Motherwell and Wishaw (Marion Fellows). As he said, this debate is about how we can best get justice to the victims. Can I offer as a solution something that is happening now? The Criminal Justice Bill, which has not reached all stages of the parliamentary process, already has a legislative consent motion from the Scottish Parliament for the areas of the Bill that impact Scotland. Perhaps that is a way of getting around the territorial debate. If Scotland and Northern Ireland were put there, it would allow legislative consent both in Northern Ireland and Scotland to happen concurrently, at the same time as the legislation is passing here.

[Mr Carmichael]

That is one way in which the procedure could be done. However, I say to the hon. Gentleman and the hon. Member for Motherwell and Wishaw that the question of quashing convictions is just one element of justice. The other important element is that those who were responsible for initiating the prosecutions must be accountable. That accountability would be missing if the provisions for Scotland were put in this Bill or the Criminal Justice Bill. That accountability is important for the quality of justice, if it is achievable within the timescale; we are balancing competing demands.

The position of Northern Ireland is qualitatively different because there is a statutory requirement for a 12-week consultation. The Scottish Parliament does not have that requirement, so it would be able to proceed.

[Angus Brendan MacNeil (Na h-Eileanan an Iar) (Ind)]

I apologise for not being here at the beginning, as I was chairing the Energy Security and Net Zero Committee. The other leg of justice that must be served is compensation, which I am sure the right hon. Gentleman was coming to anyway. Compensation is not just for those who were convicted, as a lot of people out there dipped into their own pockets and paid money to the Post Office to keep the heavies away and prevent prosecution. Those people also need to see justice. One of the big things is moving the legislation forward so that all that happens and the money gets to the people.

[Mr Carmichael]

The hon. Gentleman is right. If he has been listening, he will have heard me speak on a number of occasions about my work to support constituents who are pursuing claims as part of the historic shortfall scheme. That would be the route to compensation for the people to whom the hon. Gentleman refers.

We have taken a particular approach quite deliberately and for good reason. Because the Post Office function is reserved legislatively to the United Kingdom Parliament, as a United Kingdom operation, the compensation should be paid on a UK-wide basis. However, the decisions to prosecute were taken in Scotland, by law officers accountable to the Scottish Parliament. For that reason, it makes sense for the Scottish Parliament to deal with the consequences of those prosecutions.

[Angus Brendan MacNeil]

I do not necessarily have the answer, but the problem is that if the Scottish Parliament quashes the prosecutions, there could be a hiatus while we wait for Westminster to do something and the money arrives. It is a chicken and egg situation. I would much prefer the Scottish Parliament to sort it and to have the resources to compensate, but unfortunately in the UK that is not the world we live in.

[Mr Carmichael]

I do not think it is unfortunate, but highly fortunate and deliberate, that we are in the UK, but we will save that debate for another day. The compensation can and will be paid on a UK-wide basis. Given the timescale that the Government have outlined so far, we would expect the convictions to be quashed on the basis of this Bill by the middle of July. That gives the Scottish Parliament time to meet the same timescales, so that victims in Scotland have their cases quashed by that time.

[Kevin Hollinrake]

The right hon. Gentleman is making some important points about the way the prosecution systems work in different parts of the UK, which we must take into account. On the point by the hon. Member for Na h-Eileanan an Iar (Angus Brendan MacNeil) on paying redress, the key thing is overturning the conviction. Once that conviction is overturned, wherever in the UK, that individual will have immediate access to the redress scheme wherever they are in the UK. There is no hiatus, as he described it.

[Mr Carmichael]

I am grateful to the Minister for that. Those who are not convicted will have access to compensation through the historic shortfall scheme—a process available to them at the moment.

[Kevin Hollinrake]

The Bill relates only to overturning convictions. There is a discussion about territorial extent, which I understand and am happy to continue to discuss. The three compensation schemes—the Horizon shortfall scheme, the group litigation order scheme and the overturned conviction scheme—are all UK-wide, so that whatever detriment is experienced, wherever they are in the UK, there is no delay to compensation. There is no difference, in terms of compensation, between one part of the UK and another. We are keen to expedite it wherever it is in the UK and we have work to do.

[Mr Carmichael]

I do not really need to answer that, so I will take the hon. Lady’s intervention.

[Marion Fellows]

I thank the right hon. Gentleman. One of the issues about timing, and it is about timing, is that I think everyone would agree that it is best that every victim is exonerated at the same time. As we do not yet have the programme for the timing of the Committee and Third Reading stages, it is possible that the Scottish Parliament could be in recess. It will be in recess as early as 29 June, a full month before this place.

[Mr Carmichael]

That is a political decision for the Scottish Government, who control the Scottish Parliament’s business, to take.

[Marion Fellows]

May I gently correct the right hon. Gentleman? The recess dates are not set by the Scottish Government; they are set by the parliamentary board.

[Mr Carmichael]

They are set by the Parliamentary Bureau, of which the majority of members come from the SNP and the Greens. I have kept this fairly broad in its terms. Can I just say gently to the hon. Lady that if the Scottish Government, instead of trying to evade political accountability, would take their responsibilities seriously and get on with it, they would get on with the drafting of the necessary legislation? If they want to wait and see how it all works here, to see if there are further amendments, then of course they can do so. They should be mindful of the fact that, apart from this one point, on the substantive provisions in the Bill there is complete unanimity across all parties in the House. So I would not see this as a Bill that is likely to attract amendment on the substance.

If the hon. Lady wishes to introduce her amendments relating to jurisdiction at a later stage, then that is another matter altogether. If we consider the consequences for the substance of the Bill, we would effectively be writing a whole new part of it. For example, if we have regard to the offences for which compensation is to be paid, very few are terms of art in Scots law, so we would be writing a new Bill to be inserted here.

Why are the Scottish Government so resistant to getting on and doing what they are constitutionally charged to do, when they could do it if they started now, in a timescale that brings everybody to the same place? The hon. Lady herself said that compensation had to be done equitably and fairly. I put it to her and to her colleagues that the consequence of their route being followed would be Scottish victims having justice of a lesser quality, because the decisions about prosecution are accountable to this House in England, and there would be no such accountability for decisions on prosecution if they were to be taken in the Scottish Parliament.

[Chris Stephens]

Not true.

[Mr Carmichael]

Can the hon. Gentleman sitting to my left explain to me why he thinks that is not true?

[Chris Stephens]

I will—and I am always to his left, as he knows. If the Parliament discusses legislative consent, that is where the accountability takes place. I say to the right hon. Gentleman again—he does not need to answer it today, because the Bill will go through other stages and the Minister said he is considering it—that I hope he will consider the Criminal Justice Bill example and legislative consent as a solution to the issue.

[Mr Carmichael]

It is a solution to the issue inasmuch as it is another means of doing the same thing that the hon. Gentleman’s party wants to do in respect of the Bill, but it is not a solution inasmuch as it allows that level of accountability, and it is the accountability that matters.

The current Lord Advocate, Dorothy Bain, has already said, on the record, that

“not every case involving Horizon evidence will be a miscarriage of justice and each case must be considered carefully and with regard to the law. It is also important to recognise”

—as others have said here—

“the important…constitutional role of our Appeal Court in Scotland and that due process must be followed.”

That is a qualitatively different approach from the one that is at the heart of the Bill. The Lord Advocate may be right, but that is where she has to explain herself; and she also has to explain the decisions that were taken by her predecessors. It is 30 years ago now, but I did start my legal career, meagre and modest though it may have been, at the Crown Office in Edinburgh. Elish Angiolini, whom we were fêting here a week or two ago for her report on the workings of the Metropolitan police, was my first boss when I was a trainee solicitor there. My second boss was Frank Mulholland—now Lord Mulholland —the second Lord Advocate who would have had responsibility for some of these cases. All of them will have to be accountable in their own way.

The current Lord Advocate will of course be accountable, and it is obvious from the statement she gave to the Scottish Parliament that her work is already fairly well advanced. She has confirmed that the Scottish Criminal Cases Review Commission wrote to 73 potential victims of the Horizon scandal in 2020. She has also confirmed that the Crown Office has identified another 54 cases that are being reviewed by prosecutors, and that many of those cases have been contacted by the SCCRC as well. As of March 2024, 19 people have come forward to have their cases reviewed. Eight of them have been referred to court, with six having their cases cleared. The remaining two cases are still pending an outcome.

Given the amount of work that has been done and given the nature of what the Lord Advocate has said on the record, it makes, to my mind, absolutely no sense for the Scottish elements of this one narrow part—on the decisions to prosecute—to be taken differently. It comes down to accountability, and if we have learned nothing else throughout this whole sorry episode of the Horizon system and Post Office Ltd, surely we have learned that, at the end of the day, accountability makes a difference.

Post Office (Horizon System) Offences Bill

Alistair Carmichael Excerpts

Committee of the whole House
Monday 29th April 2024 Commons Chamber

[Kevin Hollinrake]

I would welcome that discussion, and I will follow it closely in the other place.

The controversial element of this unprecedented, exceptional legislation is the overturning of the convictions, because we are interfering with the courts by legislating in this way. The convictions expire on day one. All that happens further on from that is the marking of the records, which is not the controversial part. The controversial part is the interference with the courts. Again, I am happy to have a continuing conversation with the right hon. Gentleman.

New clause 7, in the name of the right hon. Member for Orkney and Shetland (Mr Carmichael), would require the establishment of an independent intermediary body to administer financial redress to individuals whose convictions are quashed by the Bill. I also acknowledge the Business and Trade Committee’s recommendation on a similar point.

I assure the Committee that we are building independence into the process of making financial redress. Final decisions will, if necessary, be made by an independent panel comprising a King’s counsel, an accountant and a retail expert. The panel will have a case manager, who will ensure that cases are settled fairly, swiftly and in a non-adversarial manner. I have been clear throughout my work that we should put the victims of the scandal back in the position that they would have been in, and that we should move as quickly as possible. We feel that it would take months to set up an independent intermediary, and that it would add additional steps to the process and risk creating unnecessary bureaucracy.

[Mr Alistair Carmichael (Orkney and Shetland) (LD)]

If my new clause had been selected for debate, I would probably not seek to press it. I am not in a position to do anything more, but I thank the Minister for his assurances on independence.

[The First Deputy Chairman of Ways and Means (Dame Rosie Winterton)]

As the new clause was not selected, we probably should not be discussing it.

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[Mr Carmichael]

I am pleased to give this Bill my support and that of my party on Third Reading. It shows what is possible when the House comes together and works collegiately, as we have done. It must surely remain a concern to us all that it is necessary in the first place.

I pay warm tribute to the Minister for how he has handled this matter, not just as a Minister but in his time before he came into office, as well as to the right hon. Member for North Durham (Mr Jones) and the hon. Member for Motherwell and Wishaw (Marion Fellows), although she is not in her place at the moment. I would say only that I hope that the Scottish Government can bring to the Scottish Parliament the legislation that has been prepared so that we can all come to the same place at the same time, because the important thing here—we have to come back to this time and again—is the outcome for the sub-postmasters themselves. For the Post Office as an institution, this is an important step in restoring its trust and its standing in the communities that we all represent.

I leave the House with this final thought. There is a temptation to think that when the Bill passes and its provisions are implemented, somehow or other that is it—job done. I caution the House against that. We are here tonight because of a head of steam that was built up because of the nature of the Post Office as an institution, the standing of sub-postmasters in our communities, the sheer number of cases and the remarkable way in which the ITV programme caught the mood of the nation.

What happened to sub-postmasters is different from what happens to people all the time only in one respect: the sheer scale of it. In my time as a Member of Parliament, I have come across so many examples of people with good, reasonable cases who were squeezed out of what they are entitled to because of the inequality of arms. Public bodies have deep pockets—the taxpayer is behind them every step of the way—to pay for the best legal representation and to stonewall in cases where people would otherwise have good justice.

I will be back in Westminster Hall on Wednesday morning to deal with a case about the accountability of the Financial Conduct Authority, where it acted in respect of claims made by constituents of mine who had been the victims of a Ponzi scheme only because it was eventually forced into doing so by people who, as with the Post Office, were brave enough to take their case to court. Ultimately, they lost, but in the process of taking their case to court, they put the FCA in a position where there was no alternative but to pay out to all the victims through the financial services compensation scheme.

The brave 95 people who took the legal action in the first place are left £2 million out of pocket. Everybody gets something because they were brave enough to stand up, but they are left to pay at the end of it. That might be the law, Madam Deputy Speaker, but you will never persuade me that it is justice.