Amendment 2

Post Office (Horizon System) Offences Bill - Committee – in the House of Lords am 12:29 pm ar 23 Mai 2024.

Danfonwch hysbysiad imi am ddadleuon fel hyn

Pleidleisiau yn y ddadl hon

Lord Arbuthnot of Edrom:

Moved by Lord Arbuthnot of Edrom

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

Photo of Lord Arbuthnot of Edrom Lord Arbuthnot of Edrom Ceidwadwyr

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.

Photo of Baroness Brinton Baroness Brinton Democratiaid Rhyddfrydol

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.

Photo of Baroness Butler-Sloss Baroness Butler-Sloss Chair, Ecclesiastical Committee (Joint Committee), Chair, Ecclesiastical Committee (Joint Committee)

My Lords, I remain extremely unhappy about this Bill and the way in which it has arisen, but I recognise the overwhelming importance of, at long last, doing justice to sub-postmasters. I assume that the evidence given to the Court of Appeal would have been similar to the evidence given to the original court. In those circumstances, it seems that the noble Lord, Lord Arbuthnot, is absolutely right and they should not be treated differently.

Photo of Lord McNicol of West Kilbride Lord McNicol of West Kilbride Shadow Spokesperson (Business and Trade), Shadow Spokesperson (Scotland)

My Lords, I am obviously dealing with this in wash-up. The priority is to ensure that we get this Bill through. The arguments have been very well rehearsed across your Lordships’ House and in the other place about Horizon, the Post Office, Fujitsu and the outcomes of that. At Second Reading, I was struck by the contributions from all sides of your Lordships’ House and the language that was used about making sure that we do, and are seen to do, the right thing. The Labour Front Bench has submitted no amendments at this stage for that simple reason. We looked at purpose, but we think the issues around the Bill are clear enough that it deals just with this set of circumstances, which is obviously one of the big issues from across the judiciary.

On the relationship with the Government and the department on the Bill, I thank the noble Lord, Lord Offord, and the team for those discussions. If we can get to a situation, following the Minister’s response and conversations with the Minister down the other end, where these amendments go through and are accepted by the Government, the Bill will be in a better place and all of us will have played our part in delivering that. We support where we are at just now. We intend this to go through, to be dealt with in the other place tomorrow and then to be legislated for. I look forward to the Minister’s response so that we get the warm words and assurances that the noble Lord, Lord Arbuthnot, has worked so hard to achieve.

Photo of Lord Forsyth of Drumlean Lord Forsyth of Drumlean Chair, Financial Services Regulation Committee, Chair, Financial Services Regulation Committee

My Lords, I briefly intervene to thank the noble Lord, Lord McNicol, who has done really sterling work on this, together with my noble friend. I very much agree with his optimism that this matter can be adjusted. I think all of us realise that 13 is an unlucky number and 13 people were going to suffer a degree of injustice. This is an important matter. It is a very good example of what we were talking about earlier: how this House can work consensually to deliver the right result. I look forward to what my noble friend the Minister has to say.

Photo of Lord Fox Lord Fox Liberal Democrat Lords Spokesperson (Business)

My Lords, I will follow on and, I hope, echo that spirit of consensus. One of the spin-offs from the decision to call the election is, of course, that this Bill will make the statute book quicker than it would have in the event that it had gone through a normal process. This is a good thing. However, it will have lost some of that scrutiny. The amendments set out some of the abiding issues that I hope the Minister will address from the Dispatch Box, bearing in mind that we will not have the legislative routes to do that.

The noble and learned Lord, Lord Falconer, raised the DWP in his Amendment 1, which may or may not be an issue, but the core issue that he, along with the noble Lord, Lord Arbuthnot, raised is the 13 appellants. If the Government stay firm in not accepting Amendments 2, 4 and 6, we really have to hear from the Minister at the Dispatch Box what they are going to do instead.

When my noble friend Lady Brinton and I met the Minister and his team—I thank them for that—it was clear to me that the Minister understands the injustice that is built into this. I understand that there is a wrestling about how much judges are offended in this, but the noble and learned Baroness, Lady Butler-Sloss, made it clear that the point has been made already in the substance of the Bill. The 13 are merely an extension of the same issue and have to be included in the same way, because they were the people who had the best case to defend and bravely went to law to do it, and now they are in danger of being hung out to dry. I know that is not what the Minister wants and I believe that a way must be found.

My noble friend Lady Brinton made the point that it is not for this Bill to legislate on this. However, it is for the Minister to say that, in the event that Capture proves also to have lured people into situations where they have been unjustly prosecuted, the Government of the day will act promptly and properly to make sure that they are not dragged through the same mess as those trapped by Horizon.

The noble Lord, Lord Holmes of Richmond, raised three issues in his amendments; unfortunately, he is not here to speak to them. They are all important issues for the future. I suggest that they are not substantive to this Bill, but they are issues that I hope, whichever party is in government, will be looked at going forward. The inviolability of computer evidence has clearly been compromised. The ability of organisations to make their own prosecutions has raised concern and a thorough review is needed. There is also the role of corporate governance within the Post Office to be considered. I know the noble Lord has also made comments on this on a number of occasions. Clearly, there is something wrong. Whoever is running the Government needs to understand that Post Office governance has been broken.

I would just like to say a word to the Minister, the noble Lord, Lord Offord. He came to this relatively late and picked up the issues very quickly. He has humanely and swiftly dealt with them, and he should be praised, along with the Bill team and all of those working on it. With the inclusion of the 13, I hope we can put this thing to bed.

Photo of Lord Offord of Garvel Lord Offord of Garvel Parliamentary Under Secretary of State (Department for Business and Trade)

My Lords, I will be moving the amendments tabled in my name. I will also discuss the other amendments tabled ahead of Committee.

Amendments 7 and 8 in my name are about condition E. They are technical amendments concerning condition E in Clause 2(6) to ensure that it is clear how the condition should operate. Condition E requires that, to be in scope of the Bill, at the time of the alleged offence, a relevant version of the Horizon software was being used in the branch where the individual was carrying out Post Office business. Currently, this condition does not have the same provision for overlapping dates, which we have in condition A relating to the offences falling within the Horizon period.

The provision in condition A ensures that convictions meet the condition if the date of an offence overlaps with the specified dates, even if it does not fall entirely within it. The absence of an overlapping dates provision for condition E means that it could be possible for a Horizon case conviction to meet condition A but not condition E, even though both are intended to relate to a relationship between the use of Horizon and the date of offending in the same way. This makes condition A less effective so, to remove this inconsistency of approach and ensure that the criteria are clear and operate as intended, we seek to amend condition E to include an overlapping date provision similar to the one included in condition A.

This approach allows us to include within the quashing the possible circumstance where, following the installation of Horizon, an alleged shortfall was identified and the Pose Office concluded that this shortfall must be as a result of theft or some other offending over a period leading up to this installation, leading to a charge offence date overlapping with the period of installation.

Turning to DWP cases, I will now address Amendment 1 in the names of the noble and learned Lord, Lord Falconer of Thoroton, and the noble Lord, Lord Sikka. I thank them for their careful consideration of this issue. It is the Government’s view, however, that the cases the DWP prosecuted are of a very different character from the cases in the scope of this Bill. Therefore, the Government’s position on this matter is unchanged. These cases were investigated and prosecuted between 2001 and 2006 by DWP investigators using different processes from those used by the Post Office. They are of a fundamentally different character.

The DWP prosecutions were for welfare-related fraud offences and did not arise from shortfalls in the Horizon IT system. Rather, they were related to the fraudulent use of pension and allowance order books or girocheques. Many involved people stealing money intended to be paid in benefits to vulnerable people. We know of cases in which organised criminals seized large numbers of girocheques and order books, which were then converted to cash.

Crucially, unlike the cases in the scope of this Bill, cases prosecuted by the DWP relied principally or exclusively on non-Horizon evidence. They relied on physical evidence of irregularities in the security foils on the order books or girocheques, slips being cashed out of sequence in the books, stamp and handwriting discrepancies, surveillance and evidence from searches. Parallel work concluded by accredited financial investigators traced the money in many cases to show that it was actually going into staff members’ bank accounts.

A typical case could involve, for example, someone working in a Post Office removing pension books, sometimes in large numbers in conjunction with organised criminal gangs, and cashing them separately, keeping the cash for themselves. When the pensioner arrived at the Post Office to collect their pension book, it was not there, leading to delays and difficulties for them in accessing their pension.

Unlike cases prosecuted by the Post Office, we are not aware of DWP cases that have been overturned on appeal. Given that the DWP cases are of a very different character from those in scope of the Bill, I hope that the noble Lords will agree not to press their amendments. If there are cases prosecuted by DWP that do not follow this pattern, they can, of course, be reviewed by the CCRC, but it would be inappropriate to overturn them in bulk.

I turn now to the amendments on the Court of Appeal. Amendments 2 to 6 and 9 to 12, in the names of the noble and learned Lord, Lord Falconer, and the noble Lords, Lord Holmes and Lord Arbuthnot, address Court of Appeal cases. I thank the noble Lords for their consideration of Court of Appeal cases but, after careful consideration, the Government’s position remains unchanged.

The Bill is unprecedented and constitutionally sensitive. It is therefore vital that we legislate carefully, respecting the separation of powers and the independence of the judiciary as far as possible. The Court of Appeal cases are excluded from the Bill because we believe the Government must tread carefully with judges in the senior appellate courts have considered a case. Some of these amendments seek to navigate a middle ground by excluding only cases upheld on appeal or only those considered after the landmark civil case of Bates v Post Office.

Although I understand and appreciate the compromise being sought here, the Government’s view is that these opinions are no more constitutionally appropriate than removing the full exclusion as proposed in the other amendments. Our view is that there is a line here that is not for the Executive to cross in seeking to reverse decisions of the senior appellate courts. We recognise that this approach may leave individuals in question concerned about the way forward for their cases. In cases where the Court of Appeal has upheld a conviction, the usual routes of appeal remain available to them, and the Criminal Cases Review Commission stands ready to consider these cases, should the individuals concerned wish to pursue a further appeal.

Photo of Lord Beith Lord Beith Deputy Chairman of Committees, Deputy Speaker (Lords) 12:45, 23 Mai 2024

I am grateful for the help the Minister gave the Constitution Committee when we looked at this matter, although we have obviously been unable to report because of the timescale. Does he believe that the Criminal Cases Review Commission can, within its criteria, take account of important new evidence—namely, the failure to disclose what was known about the Horizon system, which is a significant new element of evidence? Previous experience of the CCRC suggests that it is cautious about admitting something as new evidence, which is one of the primary criteria for allowing appeals to go back to the Court of Appeal.

Photo of Lord Offord of Garvel Lord Offord of Garvel Parliamentary Under Secretary of State (Department for Business and Trade)

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.

Photo of Lord Arbuthnot of Edrom Lord Arbuthnot of Edrom Ceidwadwyr

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.

Photo of Lord Offord of Garvel Lord Offord of Garvel Parliamentary Under Secretary of State (Department for Business and Trade)

I thank my noble friend. We have been clear in our discussions with him that there are two sides to this argument and great sympathy is expressed for the group in the Court of Appeal cases. At this stage in proceedings, however, the Government are retaining the position as outlined from the Dispatch Box.

Amendment 13, in the name of the noble and learned Lord, Lord Falconer, would require the appropriate authority to notify bodies other than the convicting court that a conviction has been quashed. The effect of this amendment would be potentially onerous. It is not clear what would constitute an appropriate body or how the appropriate authority would decide which bodies ought to be notified. The reason the Bill currently requires that the convicting court be notified is to reflect what would happen when the Court of Appeal quashes a conviction. This amendment would create a difference between the two processes and it is unclear what purpose it would achieve. Therefore, I hope the noble and learned Lord will be happy not to move this amendment.

Photo of Lord Forsyth of Drumlean Lord Forsyth of Drumlean Chair, Financial Services Regulation Committee, Chair, Financial Services Regulation Committee

I may have misunderstood but, when I spoke earlier, I understood that there had been agreement between the various parties, as my noble friend Lord Arbuthnot indicated. My noble friend said that there are “two sides to this”, but I understood that that was part of the agreement and the understanding. This is very important for 13 people.

Photo of Lord Fox Lord Fox Liberal Democrat Lords Spokesperson (Business)

May I suggest that we have a 10-minute break to discuss this, please?

Photo of Lord Offord of Garvel Lord Offord of Garvel Parliamentary Under Secretary of State (Department for Business and Trade) 1:04, 23 Mai 2024

My Lords, I apologise to the Committee for the confusion in proceedings this afternoon. I would like to deal with the amendment put forward by my noble friend Lord Arbuthnot in relation to Court of Appeal cases. Proceedings are progressing here at great speed and I am grateful to noble Lords for their patience. I express my deep personal sympathy with my noble friend on this issue. However, I confirm that, on Court of Appeal cases, the collective government position has not changed. I understand that my noble friend may therefore wish to test the opinion of the Committee on this issue.

I move now to Amendment 13 on post-Assent implementation, in the name of the noble and learned Lord, Lord Falconer. This amendment would require the appropriate authority to notify bodies other than the convicting court that a conviction had been quashed. The effect of this amendment would be potentially onerous. It is not clear what would constitute an appropriate body or how the appropriate authority would decide which bodies ought to be notified. The reason that the Bill currently requires that the convicting court be notified is to reflect what happens when the Court of Appeal quashes a conviction. This amendment would create a difference between the two purposes and it is unclear what purpose it would achieve. I therefore hope the noble and learned Lord will not press his amendment.

I turn now to Amendment 17, in the name of my noble friend Lord Holmes of Richmond, which would require the Secretary of State to lay before Parliament a report on the power to bring private prosecutions. Sir Wyn Williams’s inquiry is examining all the failings that led to the Post Office convictions and it is important that we do not pre-empt the findings of that inquiry by publishing a separate review on this single issue. The Government have already committed to reviewing the Justice Select Committee’s 2020 report on the role of private prosecutions, and are in the process of doing so. The Government believe that this is out of the Bill’s scope and could detract from resourcing the implementation of the Bill. I therefore ask my noble friend to consider not pressing his amendment.

I turn to Amendment 18 on computer evidence, also in the name of my noble friend Lord Holmes. I fully understand the intention behind this amendment, which is to highlight the role that computer evidence played in the prosecution of postmasters. I agree that we need to look closely at the wider question of how computer evidence is used in court proceedings. The failings of the Horizon accounting system are now well known. However, as was made clear in the Court of Appeal, and as continues to emerge from the ongoing statutory inquiry, faulty computer evidence was not the sole cause of this miscarriage of justice. Rather, the prosecutions relied on assertions that the Horizon IT system was accurate and reliable, which the Post Office knew to be wrong. This was supported by expert evidence that the Post Office knew to be misleading.

Sir Wyn Williams’s inquiry is examining all the failings that led to the Post Office convictions and it is important that we do not pre-empt the findings of that inquiry by publishing a separate review on this single issue. The use of computer evidence is much broader than purely Horizon-style accounting software. Indeed, computer evidence is now widespread in most prosecutions, with serious fraud offences typically involving millions of such documents. The Government recognise that a law in this area must be reviewed, but we need to tread carefully, given the significant implications that any change in the law could have for the criminal justice system.

I turn to Amendment 14, on Capture. I thank the noble Baroness, Lady Brinton, for her continuing interest in this. We maintain the position that Capture should remain outside the scope of this Bill. We have not found sufficient evidence to date to conclude that Capture led to people being wrongly convicted. Given the limited information that we currently have about Capture and resulting convictions, there is not yet evidence that any miscarriages of justice took place. I reassure the noble Baroness that we are looking into what can be done on Capture. As soon as the Government found out about issues with the Capture system, we asked the Post Office to investigate. We are in the process of appointing an independent forensic investigator to look into the Capture software and how the Post Office addressed concerns about it.

Photo of Baroness Brinton Baroness Brinton Democratiaid Rhyddfrydol

I am sorry, but I am slightly concerned with the proposal that the Post Office could investigate. Will the Government consider providing someone slightly more independent, given some of the issues that have arisen recently?

Photo of Lord Offord of Garvel Lord Offord of Garvel Parliamentary Under Secretary of State (Department for Business and Trade)

My understanding is that, obviously, the first port of call will be the Post Office, as it administers these matters. However, I can confirm that we are in the process of appointing an independent forensic investigator to look into the Capture software and how the Post Office addressed concerns about it—that will be an independent review. I am happy to reassure the noble Baroness that, once the investigator has reported, the Government will seek to return to this House to set out our plans.

Photo of Lord Watts Lord Watts Llafur

On the issue of credibility, the people who have been affected by the scandal will want the Post Office to have no connection whatever with any investigation. Does the Minister think it would be a good idea to ignore the fact that the Post Office needs to be involved and do this completely independently, to give credibility to the findings that are put forward?

Photo of Lord Offord of Garvel Lord Offord of Garvel Parliamentary Under Secretary of State (Department for Business and Trade)

I thank the noble Lord for that. That is exactly the intention of the independent investigator.

I turn to the amendment on Post Office governance. Amendment 19 is in the name of the noble Lord, Lord Holmes of Richmond, and I thank him again for his engagement on the Bill. Post Office governance is a priority for the Government. However, it is not the subject of this Bill, which has a clear scope to quash the wrongful convictions of the postmasters affected by the Horizon scandal. Therefore, we do not see the Bill as the place to address governance issues. Furthermore, we do not support a review of the kind suggested by this amendment, due to other work that is progressing. Phases 5 and 6 of the Post Office Horizon IT inquiry are looking at past governance issues and could make recommendations for specific changes that the Government will consider carefully and respond to in due course.

Nigel Railton has been appointed as interim chair of the Post Office, and will be invited to give Ministers his views on the future direction of the Post Office, which could include proposals for change that the Government will consider. We of course keep governance models under review, but we do not support another review of governance issues while the activities I have outlined are under way. I hope the noble Lord will be happy to withdraw his amendment.

In conclusion, I thank the Committee for its attention to the Bill. I commend to the Committee the government amendments in my name.

Photo of Lord Haskel Lord Haskel Deputy Chairman of Committees, Deputy Speaker (Lords)

My Lords, if Amendment 2 is agreed, I cannot call Amendment 3.

Ayes 76, Noes 111.

Rhif adran 1 Post Office (Horizon System) Offences Bill - Committee — Amendment 2

Ie: 74 Members of the House of Lords

Na: 109 Members of the House of Lords

Ie: A-Z fesul cyfenw

Rhifwyr

Na: A-Z fesul cyfenw

Rhifwyr

Amendment 2 disagreed.

Amendment 3 not moved.

Photo of Lord Haskel Lord Haskel Deputy Chairman of Committees, Deputy Speaker (Lords)

My Lords, if Amendment 4 is agreed to, I cannot call Amendment 5.

Amendments 4 to 6 not moved.

Clause 1 agreed.

Clause 2: Meaning of “relevant offence”