Like most IT folk in the UK I’ve been aware of the Horizon scandal as it’s unfolded over the decades as a slow rolling train wreck ruining hundreds of lives.

The recent TV series Mr Bates vs The Post Office seems to have finally brought things to a head in terms of political attention, after far too many years of the victims being ignored. Sadly this shouldn’t be a surprise to anybody. To misquote Wilhoit’s law:

The British Establishment consists of exactly one proposition, to wit: There must be in-groups whom the law protects but does not bind, alongside out-groups whom the law binds but does not protect.

Computer Weekly has done an excellent job of covering the story and keeping receipts. I count 340 links to past articles in their ‘Post Office Horizon scandal explained: Everything you need to know‘. The most damning though is ‘Post Office tried to convince independent IT witness that he was wrong about Horizon‘. From the headline it’s a story about a powerful organisation leaning on an expert witness, but that buries the true importance of what happened.

Jason Coyne was hired as an expert witness for a case against Julie Wolstenholme, who was subpostmaster and one of the early victims of Horizon flaws back in 2001. Coyne’s findings (about the failings in Horizon) never made it to court because the Post Office chose to settle the case – with a payoff and confidentiality agreement. The Law Society Gazette’s coverage of the ongoing public inquiry doesn’t bury the lede – ‘Post Office lawyer wanted postmistress to ‘keep her mouth shut’‘.

This, for me, is the smoking gun, as it’s too often that the cover-up becomes more important to defend than the original (in)action. That payoff could only have been approved at the highest levels within the Post Office (almost certainly the CEO), which has to mean they were (painfully) aware of the Horizon issues, and choosing cover-up over fess-up.

I don’t yet see the public inquiry asking the most important question: “who approved the payment?”.

I caught a little of the inquiry live as I was washing the dishes earlier in the week. They were grilling one of the Post Office ‘inspectors’ Stephen Bradshaw, who came across as somebody with all the wit, charm and subtlety of a bailiff serving an eviction notice as he trotted out various versions of ‘I was a lowly foot soldier just following orders’. No doubt he’ll walk away from it all with his share of the blame and his share of the shame.

But that brings me back to the misquote above. The inquiry is another tool of the establishment, and if its purpose is to spread the blame and shame to the Bradshaws that pass through it, then that’s letting those that gave the orders off the hook. Bradshaw and the lawyers he tried to pass the buck to were working in a rotten culture, and that rot all traces back to the cover-up and everything done to perpetrate it and protect it.

Which brings us to the confidentially agreement, or Non Disclosure Agreement (NDA) as they’re commonly called. I can’t remember the number of NDAs I’ve signed over the years. They’ve become very much part of business as usual, and I totally acknowledge their usefulness in protecting business secrets, whether that’s a (new) way of doing something, or proprietary/sensitive data. What I can remember are the times I’ve refused to sign NDAs, or written NOT ACCEPTED into the box. Such things have become a too common part of the badging in process for US tech firms (like click through end user license agreements), and are in my mind entirely unacceptable as there’s no time for proper reading, never mind review by a legal advisor.

What I can vividly remember are the few occasions I’ve signed an NDA in the full knowledge that I was selling my silence. Such things are tools of oppression, wielded by the rich and powerful against individuals without the means to fight back. Such things are used to silence the voices that would otherwise speak out about the malfeasance of individuals, corporations and government agencies. They’re also very effective at blocking collective action. If an individual can’t speak on a topic then they can’t rally others, or join a group.

The (mis)use of NDAs to silence illegal behaviour was a feature of the #MeToo movement, and particularly Harvey Weinstein’s trial. One sad truth that emerged was that he got away with it for so long because after abusing people he was then able to further bully them through the threat of legal action. It seems the same is true for the Post Office (and their executives). This raises the thorny question of whether an NDA is even enforceable when used to cover up crimes, a topic covered (in relegation to the Epstein case) in ‘Why nondisclosure agreements may not be enforceable‘:

In general, the bottom line is: If a contract is specifically about something illegal, that contract cannot be enforced. (For example, an NDA that gives you $1 million in exchange for promising to keep quiet about a murder is clearly void, since it’s against public policy to cover up murder.) As such, any contract that involves illegal activities, including an NDA clause in a contract, would not necessarily stop someone from testifying about the illegal conduct to which the contract refers.

From the same piece:

Especially given the current climate, many judges are unlikely to look kindly upon NDAs that may apply to unsavory or wrongful behavior, as opposed to legitimate purposes such as the protection of confidential data.

So, if you’re an employer, you’d be well advised to refocus on proper risk management and training, to prevent problems from happening in the first instance… Don’t think for a moment that you’ll be able to escape liability by silencing witnesses under an NDA. And it’s a good idea to conduct business by the New York Times rule: Namely, if you wouldn’t want to see something on the front page of the New York Times, then don’t do it.

This sadly is a very US perspective on the matter. I fear that the London Times rule goes something more like “if you wouldn’t want to see something on the front page of The Times, then make sure you have a good libel lawyer on retainer”.

It’s good to see the sub-postmasters might finally get some of the justice and recompence they deserve. But what’s even better is this might be a turning point for the relationship between British people and State power. I get a sense that Mr Bates vs The Post Office might have the scales falling from people’s eyes. “If they did that to hundreds of people who were pillars of their community then what else is going on?”, is a question being asked across the country. It’s a good question, and it’s going to need a robust political response that goes way beyond exonerations and compensation.

Updates

17 Jan 2024 – this topic came up in today’s Prime Minister’s Questions. I wasn’t able to catch the name of the Conservative MP asking the question (over the background jeering), but it was good to hear her vociferously arguing for NDAs being stripped from settlement agreements. The PM’s response seemed to suggest that there’s already some political momentum on the issue.

22 Jan 2024 – Dave Farley has published an excellent video ‘Developers Blamed For The Post Office Horizon Scandal?‘ looking at the technical aspects of the Horizon system and its development, and asking what sort of duty of care developers (and those hiring them) have for the people using their software.

26 Jan 2024 – Returning to last week’s PMQs I can now see them in Hansard, and the question referred to above was asked by Dame Maria Miller (Con).

It is against the law to silence victims of crime, but that is exactly what the Post Office did through the use of non-disclosure agreements, and this is just the most recent case of NDAs covering up mismanagement, misconduct and even crimes at work. Will my right hon. Friend the Prime Minister consider banning their use in all severance agreements once and for all?

and the PM’s response:

My right hon. Friend is right to raise an important point. The ability to speak out about things is key to unlocking justice. While NDAs can have a place—and my right hon. Friend is right to say that they should not be used to stop victims of crime in particular getting the justice they deserve—I can tell her that the Ministry of Justice is carefully considering how best to address this issue, including the use of legislation, and I know that my right hon. and learned Friend the Justice Secretary will keep the House updated on further progress.