Access to Redress Schemes

Debate between Alistair Carmichael and Kevan Jones

Thursday 18th April 2024 Commons Chamber

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

It is a pleasure to follow the right hon. Member for North Durham (Mr Jones). I do so with a small measure of trepidation, as a recovering lawyer; it is 23 years since I left legal practice, so it gives me a certain perspective. He is right to say that we are talking about the imbalance of power between the big corporates, Government bodies and public bodies, and the individual private citizen. Beyond that, the real problem is about culture, because nothing in nature or law says that a big corporate, public regulator or public body has to treat people badly; that is the choice of the people who make up those bodies.

That problem is not new. As I have been listening to this debate, I have been reflecting on the fact that not long after I was first elected to this House in 2001, one of the first pieces of casework in which I became involved related to 36 residents in the south end of Shetland whose asbestos roofs had all failed following the grounding of the Braer, off the south end of Shetland, some 10 years earlier. The casual observer might think it common sense that those roofs had worked perfectly functionally for decades and then suddenly, after a tanker full of Gullfaks crude was dumped on top of them, things started to go wrong. The problem was that they did not go wrong immediately; it took time for their failure to become apparent. As a consequence, those people were at the tail end of those who were claiming from the International Oil Pollution Compensation Funds. Everybody believed before the Braer that the sum put into the IOPC fund could never be reached, but of course the Braer maxed out the fund.

By the time the asbestos roof claimants came along, there was no money left to pay the compensation. However, money was left to defend a court action, which is what happened when my constituents raised one. I have never understood the judgment in the case, but my constituents lost and, as a consequence, were left having to carry their own losses. I am certain that had there been more money in that fund at the start, their losses would have been met. So, yes, this is about the imbalance of power, but it is also about the culture of the organisation concerned. An understanding is required on the part of these bodies, be they corporate or public, of the purpose for which they are there. That is what I wish to draw the House’s attention to today.

Last night, I was fortunate to host a showing upstairs of a BBC documentary entitled “King of the Swindlers”, and the parallels with the Post Office Horizon scheme and its victims are there for all to see. There were only a couple of hundred victims of the “King of the Swindlers”, whereas, as we know, thousands of sub-postmasters were affected by Horizon. The “King of the Swindlers” concerned a Ponzi scheme perpetrated by a financial adviser in the north-east of Scotland, Alistair Greig. He was eventually convicted of fraud and sentenced to 14 years’ imprisonment, which was later reduced to 10 on appeal. The victims came from everywhere from Shetland in the north, down through Orkney, along the highland east coast and the Moray coast, through Aberdeen and down into Angus. They were all people who had lived and worked as builders, tradesmen or shopkeepers, saving a bit here and there. They put their money into this Ponzi scheme and lost out. The constituent who first brought this to my attention lost out to the tune of £130,000, and his mother lost £37,000.

Alistair Greig was responsible for his fraud, but he was able to carry it out as a consequence of the serial ineptitude and incompetence of the Financial Services Authority, later the Financial Conduct Authority. A journalist, Dale Haslam of Aberdeen’s Evening Express, who has done tremendous work exposing what went on, pointed out to me last night that if the FSA had got it right the first time Greig’s wrongdoing was brought to its attention, he would have been stopped after only one victim. However, it missed the opportunity not once, not twice, but three times to stop what he was doing. As a consequence, the number of victims ran to hundreds.

Those who lost out were all small business people who had worked hard, saving £100 here and £1,000 or £1,500 there. They put all that money together and trusted it to Alistair Greig, usually on the recommendation of friends, family and others, because that is how business is often done in such communities. These people did not make that money by flipping properties or coming up with a great wheeze in the City; it was all hard won. Eventually, in desperation, they raised a legal action against Sense Network Ltd, the company that stood above Greig in the financial food chain, but they lost twice: in the first instance, and at appeal.

The legal action pursued by the 95 victims who had the determination, courage and stubbornness to pursue it did serve a purpose: eventually all the victims were allowed compensation from the Financial Services Compensation Scheme. That of course comes with an £85,000 cap, so my constituent who had lost £130,000 was immediately £45,000 down. However, those 95 victims of Alistair Greig who supported the legal action and made the compensation for everybody possible are left with a legal fees bill of £1.9 million; they are having to pay some £30,000 each, although the exact number varies. So my constituent started with £130,000, came down to £85,000, and is left with something in the region of £50,000. Let us not lose sight of the fact that Alistair Greig was able to do what he did only because the Financial Services Authority and the Financial Compensation Authority were poor at doing the job that this House charged them to do.

I invited various people to the screening of “King of the Swindlers” last night. I invited the legal team, including the solicitor who acted for the victims. I will be happy to introduce her to the right hon. Member for North Durham, because she is a sterling example of what good people in the legal profession can do, as a member of what I would still regard as a caring profession.

[Mr Kevan Jones]

I hate to think that I have given the impression that I am down on all lawyers; some of my best friends are lawyers. If the system is implemented fairly, people can get proper legal advice without it costing a fortune.

[Mr Carmichael]

I do not disagree with that. I saw enough of that in my time in practice. The right hon. Gentleman knows of my experience with the historical shortfall scheme, and of going into hand-to-hand combat with the lawyers who were instructed by the Post Office. In that case, we were able to make progress for my constituent. A local solicitor, Anne Robertson, a sole practitioner operating in Orkney, took on one of the three biggest firms in London and left them running for cover.

The victims were left with a £1.9 million legal fee because the inadequacy of the regulators left them with no option but to do what they did. We invited the regulators to the showing last night. I invited them in the middle of March; they replied last week in a letter, saying, “No, sorry. We have nothing to add. We are not going to come.” Foolishly, the FCA gave me time to reply, and I had a telephone conversation on Friday night, as I left Shetland on a ferry to go to Orkney, with Chris Wilford, the head of public affairs, and Mark Francis, the director of enforcement and market oversight. Apparently, that is a proper job title; I thought it was some sort of ironic term, but that is what is in his contract. The response was, “Of course we are accountable, but we don’t like being accountable to you. This was an informal process.” All I was asking was for them to come along, sit in room and watch a documentary, along with the people who had lost their life savings to this man, and explain the decision that they had taken. That was all they had to do. They could walk out of the room at the end of the night, and I would be able to ask no more of them, but they were not even prepared to do that. I thought I would be up against some really slick types, but I have rarely come across two more nervous-sounding individuals.

[Mr Jones]

It is your reputation—it preceded you.

[Mr Carmichael]

That could be right, but I doubt it. My reputation is as a friendly and approachable character. We went through the process and eventually I said, “If these people had not taken that court action, how much would any victim of Alistair Greig have got back?” The silence was absolutely deafening. I let it run for as long as I could, and eventually I said, “Well, I think I understand now why you are so reluctant to come to the House of Commons next Wednesday.” The call did not go on much after that, but I did say that I thought that the matter required escalation, and asked them to call back on Monday with arrangements for me to speak to the chief executive. I did not get a call, but I did get an email on Monday saying that they had nothing further to add.

The chief executive of the Financial Conduct Authority is Nikhil Rathi. Interestingly, a couple of years ago that job commanded a salary of £455,000 per annum. I calculated that the Prime Minister’s salary is about 37% of what we pay the chief executive of the FCA. For jobs like that, it often feels that the more you pay, the less you get. I contrast the lack of moral courage of people like that, who will not sit in a room with the people whose lives have been affected by the decisions they have taken, to that of some of the people who were in the room last night, including the solicitors Philippa Hann and Robert Morfee. At first, the judge in the Sense Network case was not going to turn up, but he was there in the room. We expect judges to plead the independence of the judiciary, and rightly so, but out of respect for what these people had been though, he was prepared to turn up, watch the documentary and share the space with them. That spoke well to his strength of character.

Another person who was in the room was Judy Greig, the ex-wife of Alistair Greig, who was responsible for the scheme. She divorced him after his crimes came to light. He made himself bankrupt, but she refused to do that, so she has ended up carrying some of his debt. She is now 72 years old. She is working in a supermarket and still supporting the victims of her husband’s criminality. Her remarkable strength of character is in contrast to that of people like the chief executive of the FCA who, despite the very well-funded taxpayer salary that they get, simply lack the decency and moral courage to sit down in a room with their victims.

That is why I think that the question of culture is at the root of the issue. Since I became interested in the last few days in the detail of what was going on in the FCA, I have found very little to offer me comfort. Apparently, the FCA said that 60 of its staff were earning salaries below the £29,500 per year set by the Joseph Rowntree Foundation as the minimum amount that people need to earn to reach an acceptable standard of living. It is a possibility that the FCA will establish its own hardship fund in 2024, if there is enough demand among staff. This is an organisation where the chief executive is paid £455,000 a year.

Some of the commentary on the culture in the FCA is pretty damning. In one anonymous online report, a former colleague described the CEO as

“a very high IQ, but not as much EQ”—

emotional quotient. As we know, culture comes from the top of an organisation downwards. Unite, the union that represents many FCA workers, talks about the “toxic” environment for staff representatives, who have been given “minimal information” by their bosses. Again, this comes down to culture. How the FCA treats its staff reads across to how it treats people like my constituents, who find themselves in need of its services.

We set up the FCA for a reason, and the FSCS for another reason. The FSCS was only supposed to be there in case the FCA failed in any way. It is paid for by companies in the financial services sector, which are regulated, so they pay for the regulation, and for the failure of that regulation. This is something that the Government seriously need to look at soon. In the meantime, if the FCA wants to do anything to persuade me or anybody else in this House that I am wrong about the culture within that organisation, it can put the final sum of £1.9 million in a cheque to the 95 claimants who were the victims of Alistair Greig and Midas Financial Solutions.

Post Office Historical Shortfall Scheme

Debate between Alistair Carmichael and Kevan Jones

Tuesday 14th December 2021 Westminster Hall

[Mr Carmichael]

Absolutely. Indeed, as I will come to in a few minutes, my constituent Elena Kimmett, who was for many years the sub-postmistress in Stromness, illustrates truth better than anyone else I can think of.

I thought the question about culture was perhaps just me being a grumpy guy after a bad meeting, as I can occasionally be, but I had a recent lengthy discussion with the National Federation of SubPostmasters. In correspondence to me, the federation put it in the following terms:

“The culture of the Post Office of today and tomorrow must be significantly different to that of the past. In a recent survey of Postmasters conducted by the NFSP, only 29% believe they are being listened to by Post Office today. In terms of resetting the relationship between Post Office and the network, Postmasters gave Post Office a score of 5 out of 10 for their progress so far.”

The executive director with responsibility for the historical shortfall scheme, Declan Salter, was left in a position in July this year where the Post Office board did not renew his contract, and it has still not been renewed. I would like to hear about that from the Minister, either today or in due course in correspondence. It has left the administration of the scheme rudderless. We need to know the intentions of the board. If it is not going to renew the contract of the person it put in charge of the scheme, it should at least come forward and tell us what it intends to do instead.

Throughout this whole sorry affair, the strategy of the Post Office has been to use public money to outgun the sub-postmasters. The settlement with the sub-postmasters was forced on them by the Post Office. That is in the context of the Post Office knowing, by 2013 at the latest, that many of the convictions were unsafe.

[Mr Kevan Jones (North Durham) (Lab)]

I thank the right hon. Gentleman for securing this debate. Does he agree that it is actually worse than that, because the Post Office spent £100 million to defend the indefensible? He said earlier that the Government are the only shareholder. Does that not give rise to the question of what the Government, as shareholder, and Ministers were doing to actually stop the Post Office frittering away £100 million of public money?

[Mr Carmichael]

It does. That has to be examined and established in the fullness of time. That is probably more than we will achieve today. It is still one of the outstanding questions in relation to this issue.

The question of public money being used to defend the indefensible, as the right hon. Gentleman raises, goes to the heart of the way in which the historical shortfall scheme is being administered. That hit me like a bolt of lightning on 23 November, when I was part of the good faith meeting—that is a term of art, not a description of what we actually went through—with representatives from the legal firm acting for the Post Office, Herbert Smith Freehills. I do not know what Herbert Smith Freehills charged the Post Office for that one hour, but the poor lawyer it put forward certainly earned her money in a way she had perhaps not anticipated at the beginning of the meeting. I pick my words with some care, because having checked the Herbert Smith Freehills website earlier today, I see that I was at university with its chief executive. However, I am left feeling that, if the Post Office just paid everybody what they asked for, it would probably end up still better off financially than it has by pursuing it in this way.

Nobody on that call was able to explain the position of the Post Office. We were told right at the start that there would be no recording of this meeting; in a good faith meeting, that seems a quite remarkable way of demonstrating good faith. I know myself, as a former legal practitioner—albeit more than 20 years ago; I would probably know just enough to be dangerous these days—that there are two ways in which lawyers can be used on these occasions. They can be used as an adviser, and indeed as a conduit for good information, or they can be used to insulate the client from the anger of the claimant. It was pretty clear from the Post Office putting nobody up for that so-called good faith meeting that it was the latter, rather than the former.

The meeting involved me and Anne Robertson, principal of JEP Robertson & Son solicitors in Orkney. Incidentally, as someone instructed to administer an estate, she has gone above and beyond anything that anybody could reasonably expect of a solicitor in that situation. Her client is in fact now the estate of the late Elena Kimmett, the postmistress in Stromness from 31 July 1989 until she resigned in October 2008, essentially because she could take no more. I first had contact with Elena in my early days as a Member of Parliament. I started talking about post offices and she got in touch and said, “Well, if you’re interested, come in and see me and I’ll tell you what it’s really like.” And she did.

We all talk about the role of sub-postmasters and sub-postmistresses. Elena Kimmett was somebody who instinctively took enormous pride in the fact that she was part of the Post Office, which allowed her to help so many people, including older people, within the community. She was caught in the Horizon scandal and was absolutely devastated by the apparent disappearance of cash within the new computerised system. She had a long sequence of relatively small losses, which gradually increased, and caused her enormous anxiety.

I have spoken to Elena’s sons about it. They tell me she balanced her books every Wednesday; they well remember the gradual change in her. She went from being a happy, competent, outgoing mother to somebody who was withdrawn, quiet and reserved. On Wednesday night, the balancing night for the post office, instead of coming home for the usual family meal, she started not to want to take part and would instead just eat a few biscuits and have a glass of wine. That is the change that the situation she was going through wrought in her. She was making up the losses from the Horizon system from her own pocket. She asked the Post Office on many occasions for help, but she was always told that the system was infallible and that if money was going missing and it was not her, then it must be her staff. Her staff had all worked for her for long periods of time, and included her mother and husband.

In May 2002, matters came to a head when there was a shortfall of £3,000. She contacted the Post Office again and was told, again, that the system was infallible. She inquired whether other offices were experiencing similar difficulties. She was told no, there were no others and that it was her problem and her responsibility. That was a significant amount of money for Elena and her husband to take from their own savings to put into the business.

Elena eventually gave up the post office in 2008. One year ago today, on 13 December 2020, just six months after she had made an application to the historical shortfall scheme, she died. Her two sons and her former employees have no doubt that Elena’s life was badly affected by the actions of the Post Office—she was devastated, and felt she could not continue in the job that she loved.

That brings me to my questions about the administration of the scheme. My concerns begin with the composition of what is called an application form, but which should properly be regarded as a claim form. The wording of the questions is clearly slanted towards fault and questions actions by employees that are completely unrelated to the employment. The wording actively discourages and gives no space or invitation to specify what the experience of the applicants has been or the effect that it had on them. The application form did not specify that it would be the only opportunity that Elena would be given to state her case. No advice was given that she should seek legal advice before completing and submitting what was a legal claim.

Can we hear from the Minister or the Post Office on who drafted the form? There was no warning whatsoever to applicants that any offer would be considered solely upon and restricted to the amount stated on the form. The form seems to be designed to steer applicants away from any thought of compensation, even to the point of the space given for the response.

The question then arises of consequential loss. There is nothing in the form that would allow for the sort of compensation that Elena should, in law, have been entitled to. The application form asks postmasters to identify any alleged shortfall losses, as well as any other losses that are caused by the Horizon shortfall—namely, consequential loss. That appears to limit any payment to the claimant to proven consequential loss as defined by the Post Office. There is no reference to compensation for anguish, upset or distress caused by its action. There is no reference in the form to any payment. In correspondence to me on 22 October 2021, the Post Office was sympathetic and apologised, but it could not extend the offer on the basis of the information available “at this stage”. Those are the significant words. Having subsequently given it information about Elena Kimmett’s loss, I would have expected it to entertain that, but there appears to be no opportunity for it to do so.

There is a lot more that I could say, but I am aware that others want to make brief interventions and I want to make time available for the Minister to give the fullest possible answers. I will finish with this one final nugget from that good faith meeting on 23 November. When we indicated at the end that we were not content with what we had been told and would not accept the offer, the representative of the solicitors acting for the Post Office turned round and said, “Be aware that if you go to the next stage, it is possible that the sum offered could be reduced or withdrawn completely.” If ever there was a point when we understood the lack of respect that still pertains between the Post Office, its representatives and the sub-postmasters whom we represent, that was it. That was the disgrace. That is why it has to change.

Covert Human Intelligence Sources (Criminal Conduct) Bill

Debate between Alistair Carmichael and Kevan Jones

Committee stage & 3rd reading & 3rd reading: House of Commons & Committee: 1st sitting & Committee: 1st sitting: House of Commons & Report stage & Report stage: House of Commons
Thursday 15th October 2020 Commons Chamber

[Mr Carmichael]

With help like that, I am not sure that the Government necessarily need any obstruction. Yes, I am certain that this provision is in the Bill for a reason, but we do need to hear from the Dispatch Box about the relationship between the Human Rights Act and activities that would be carried out overseas. When we hear from the Minister, I hope that he will address that point.

[Mr Kevan Jones (North Durham) (Lab)]

The right hon. Gentleman is making an important point, but the Human Rights Act is not the only protection. There is also the guidance that goes alongside the Bill and that already exists for the operation of CHIS, which is nearly 70 pages long and identifies what can and cannot be authorised.

[Mr Carmichael]

Indeed, and the guidance is important. It is helpful to have that published, but of course, guidance is guidance, and it can be changed much more easily than an Act of Parliament. The concern that I and many Members have is that there is little by way of meaningful limits and protections in the Bill, which is where they really require to be.

I will now address the amendments that I have tabled, and I shall seek to do so as swiftly as possible, because I realise that we are under a degree of time pressure. Amendments 20 and 21 cover the question of civil redress. The Government’s proposition is that, essentially, this is a statutory embodiment of existing practice and guidelines. In fact, the truth of the matter is that the Bill goes much further than the MI5’s current guidelines. The guidelines from 2011 state that

“An authorisation of the use of a participating agent has no legal effect and does not confer on either the agent or those involved in the authorisation process any immunity from prosecution”,

and that authorisation

“may form the basis of representations by the Service to the prosecuting authorities that prosecution is not in the public interest.”

The Bill goes much further than that. It states, in effect, that authorised crimes are lawful for all purposes, which means not only that an agent would be exempt from prosecution but that victims would be barred from seeking redress in the civil courts. Cases where civil claims have arisen from the use of covert activities in relation to the animal rights movement, for example, would not have any legal redress in the courts under the Bill. Essentially, the thinking behind amendments 20, 21 and others is that the independent oversight in the Bill simply is not there. We all know—it is human nature, as much as anything else—that if people are left to mark their own homework, they will always give themselves an A*. Frankly, for matters as important as this, we need something a bit more substantial.

The test for authorising criminal conduct in clause 1 is currently that the person authorising the conduct must believe that it is “necessary” and “proportionate” to do so. Amendment 14 is a very modest amendment that would mean it should be not just believed but “reasonably” believed that it is necessary and proportionate. That is not the most significant bar that will have to be crossed, but the fact that it is not there illustrates just how widely the Bill is drawn.