Tuesday 2 June 2020

Subpostmasters take on the government!

Alan Bates, veteran campaigner and founder of the Justice for Subpostmasters Alliance
The Justice for Subpostmasters Alliance has launched a crowdfunding campaign with a view to making a complaint to the parliamentary ombudsman about the behaviour of the government in essentially letting the Post Office go rogue for the last two decades.

In a circular to JFSA members, founder Alan Bates says:
"As you know, due to the terms of the Settlement Agreement we are not able to take further civil litigation action against the Post Office; however our focus presently is on the Post Office's only shareholder, the Government."
Bates says the JFSA got advice from a "specialist QC" about taking the government to court:
"His advice was that it might be possible, but it would be very expensive and we would be looking at years again, so realistically that wasn’t looking to be a practicable option.  However... he suggested that there might be a better, quicker and cheaper route to follow, a complaint to the Parliamentary Ombudsman."
The parliamentary ombudsman was established by an act of parliament in 1967. S/he can investigate complaints from members of the public who believe that they have suffered "injustice" because of "maladministration" by government departments or certain public bodies.

Maladministration, according to a Commons briefing paper, can be defined as a public body not having acted properly or fairly, or having given a poor service and not put things right. At the time the office of the ombudsmand was established in 1967, the Leader of the House of Commons defined maladministration as including “bias, neglect, inattention, delay, incompetence, inaptitude, perversity, turpitude, arbitrariness and so on”.

The ombudsman has the right to:
"summon persons and papers, (i.e. to require the attendance of witnesses and to have access to information), and absolute privilege to protect his or her reports. These powers are analogous to the powers of a judge of the High Court."
It all sounds good for aggrieved Subpostmasters so far, and it would certainly be fascinating to have various ministers and mandarins at BEIS, UKGI and the Cabinet Office hauled over the coals, but...
"If the Ombudsman finds in favour of the complainant, and against a department, the Ombudsman has no executive powers to alter a department’s decision or award compensation."

Nonetheless the ombudsman can suggest a remedy, which might include financial compensation. In 2009, a former ombudsman, Ann Abraham, published her "principles for remedy", which state:
"our underlying principle is to ensure that the public body restores the complainant to the position they would have been in if the maladministration or poor service had not occurred. If that is not possible, the public body should compensate them appropriately."
But the ombudsman has no power to enforce a remedy and the government can ignore its recommendations. If the government chooses to ignore the ombudsman, the ombudsman has the power to lay a special report before parliament. This the government can also ignore, although backbench MPs would be entitled to jump up and down about it.

One other thing to note is that it is free to complain to the ombudsman - so why does the JFSA want to raise £98,000?

Mr Bates says preparing the relevant documents won't come cheap:
"the reason we will be incurring costs is for preparing the submission to the Ombudsman to ensure our documents focus on our strongest points in our claim of maladministration by BEIS, and in order to do that, we need to use a QC experienced in such matters.  But the costs involved are nowhere near the cost or time involved of bringing another civil litigation action against Post Office’s shareholder.

"I am sure you will agree that during the civil action the Post Office threw everything it could at us, including four legal teams, the Court of Appeal and trying to sack the judge.  Be absolutely certain that the Government will try every trick in the book to have our submission dismissed.  We will only have one chance of following this route and we need experienced legal representation."
Mr Bates says the crowdfunding platform is already set up and accepting pledges. He says that if the full target of £98,000 isn't raised, money will not be taken from anyone's accounts and no complaint to the ombudsman will be made, by the JFSA, at least.

Is this tilting at windmills? At the very best it is a long shot, but then so was taking on the Post Office at the High Court. I've learned not to underestimate Alan Bates.