Post Office: Legislation may be needed to fix powers issue
The Horizon Compensation Advisory Board (HCAB) has expressed concern about the powers of legal regulators to investigate the lawyers involved in the Post Office Horizon scandal.
The independent advisory board of parliamentarians and academics has written to both the government and the Legal Services Board (LSB) to express its concerns at the lack of the powers of the Bar Standards Board (BSB) to compel evidence.
It has also cited last month’s High Court ruling [1] in the Carter-Ruck case, which found the Solicitors Regulation Authority did not have the statutory power it thought it had to compel the production of legally privileged information.
The SRA has been given permission to seek a leapfrog appeal [2] to the Supreme Court.
Newly published correspondence showed that the HCAB wrote to the LSB in April to say “the BSB appears to be hampered in obtaining evidence since they have no power to compel individuals to produce evidence, unlike the statutory powers available to the SRA”.
Chair Chris Hodges, emeritus professor of justice systems at Oxford University, wrote: “This is not just an unhelpful disparity but appears to be a significant omission in the toolbox of effective regulatory powers.
“The absence of such a power – and other powers perhaps – may at least be expected to delay appropriate proceedings, and possibly even to defeat the delivery of justice in individual cases. This is a problem that we understand has been understood for some time and of broader import than Post Office cases.”
The HCAB also raised the issue in June with the then chief secretary of the prime minister, Darren Jones, warning the lack of powers to compel access to evidence, “may lead to serious failure to hold barristers to account… It may require legislation to fix this issue”.
LSB chair Monisha Shah finally responded in August, noting the disparity in the information-gathering powers between the BSB and SRA.
“Our engagement with the BSB and SRA has resulted in collaboration and the sharing of information between both regulators to progress their investigations.
“We share the HCAB’s view that cases concerning misconduct by any barrister in relation to the Post Office scandal must be pursued robustly by the BSB. The LSB will continue to engage with the BSB to ensure that this is the case.”
She added that the LSB intended “to explore, with the relevant regulators and the Ministry of Justice, whether any existing statutory routes could support changes to regulatory information gathering powers, and what further steps may be appropriate”.
The Carter-Ruck ruling then came down and the report of HCAB’s most recent meeting last month said the board expressed “serious concern” over the decision. “They noted this has implications for a wide range of regulators.”
A spokesman for the HCAB told Legal Futures: “The board is concerned to ensure the Post Office cases are fully investigated. Those investigations will reach beyond matters covered in the Post Office inquiry, and the limited waiver of privilege there.
“It should be remembered that Mr Justice Fraser raised concerns about the abuse of privilege, which were but a sample of what the inquiry has revealed. The inquiry also did not investigate some potentially significant matters beyond certain dates.
“There are sensible, real and potentially serious concerns that the BSB is not able to fully investigate its roster of cases because of their absence of powers.
“The full effects of the High Court decision in Carter Ruck are still to be worked through, and depend in part on the outcome of any appeal, but risk, in our estimation, serious damage to ongoing investigations by the SRA in particular.
“We have been and will be doing our best to ensure the government ministers responsible are fully aware of the issues and the need for action.”
The LSB had no further comment beyond its reaction to the Carter-Ruck case, which was that it was “considering the implications”.
A Ministry of Justice spokeswoman said: “We are aware of the issues raised by the Horizon Compensation Advisory Board and continue to monitor the operation of the existing regulatory framework.”
A BSB spokesman added: “We are speaking to the SRA and are keeping abreast of the progress of the appeal. We will obviously keenly await the outcome and are concerned to see that the matter of legal services regulators access to privileged materials is resolved.
“Separately, we would welcome powers to obtain documents from third parties.”
The other members of the HCAB are Lord Arbuthnot – who as MP James Arbuthnot played a critical role in exposing the Post Office scandal – Lord Beamish (former MP Kevan Jones, who also campaigned on the issue for many years) and legal ethics specialist Professor Richard Moorhead.