Statement of Chair in relation to List of Issues
1 I have, today, published a list of the issues (List of Issues) which the Inquiry intends to investigate. As the preamble to the List makes clear, the List has been completed following a process of consultation with Core Participants (CPs) and Interested Persons (IPs) upon a Provisional List of Issues (PL) which was published on 26 August 2021
2 I have been able to reach a decision upon many of the proposed additions and amendments to the PL following my consideration of the written submissions submitted by CPs and IPs in response to the PL. This Statement is accompanied by a Table which identifies the nature of each suggested addition/amendment to the PL, my response to the suggestions and brief reasons for that response. It should be noted that the question number which appears in the second column of the table is the issue number specified in the PL.
3 I am satisfied that this Table constitutes sufficient notice to CPs, IPs and the public at large as to the nature of the suggested additions/ amendments to the PL and my reasons for accepting or rejecting each suggestion.
4 Following receipt of the written submissions upon the PL, I identified 4 themes upon which I required further written and oral submissions before I could properly determine whether or not the themes should be investigated. These themes were identified in a Notice of Hearing which I published on 12 October 2021. I invited core participants and interested persons to make written submissions on each theme and I gave notice that I would hear oral submissions on the theme at a public hearing convened for that purpose on 8 November 2021. I published all the written submissions received in response to this Notice and the public hearing took place as planned on 8 November 2021.
5 None of the CPs and IPs who made written or oral submissions on the themes suggested that they should not be investigated. Many of the written submissions supported the view that the Inquiry should investigate all four themes and the thrust of the arguments made by those who made oral submissions was to the effect that all four themes should be investigated.
6 Having reflected upon all that I have read and heard I am satisfied, to the extent indicated in the paragraphs which follow, that the four themes identified in the Notice of Hearing should be investigated during the course of the Inquiry.
Theme A – Second Sight Support Services (Second Sight)
7 I accept the broad proposition advanced by many parties that a detailed understanding of the investigation undertaken by Second Sight and the relevant events surrounding it is very important if the Inquiry is to understand the culture prevailing at POL during the course of the investigation, the willingness of POL to engage openly with criticisms of Horizon during that period and its attitude to SPMs confronted with shortfalls which, to them, were inexplicable. It is clear to me, too, that a detailed examination is required of the circumstances in which the contract between Second Sight and POL was brought to an end. Further, the role, if any, of Government in the decisions made by POL is a legitimate line of enquiry.
8 Accordingly, I have included within the List of Issues a number of lines of enquiry – see paragraphs 169 to 171. I am satisfied that these paragraphs properly encapsulate the appropriate lines of enquiry.
Theme B – Reliance upon Legal Advice
9 All those who made detailed written submissions and all those who made oral submissions at the hearing on 8 November urged me to investigate the extent to which POL and/or Royal Mail Group relied upon legal advice when formulating policies and guidelines on the civil and criminal liabilities of SPMs, managers and assistants for shortfalls apparently evidenced by Horizon. Those participants also submitted that I should investigate whether they relied upon legal advice when bringing civil and/or criminal proceedings against SPMs, managers or assistants, although one CP, BEIS, cautioned me against an attempt to investigate every single case in which criminal or civil proceedings had been instituted.
10 I also received submissions to the effect that I should investigate the nature of the legal advice obtained and relied upon and, to that end, I was encouraged by a number of CPs to invite POL and others to waive legal professional privilege.
11 I have no doubt that an investigation of these matters is a crucial part of the Inquiry’s work. It was submitted to me that the Inquiry is addressing an acknowledged scandal which encompasses prosecutions, major civil litigation and multiple individual claims against SPMs and that if “matters went wrong” either in the legal advice given to POL, or in the failure to heed advice, or in the failure to obtain advice at all it is essential that the Inquiry reaches conclusions on these matters. I agree.
12 Reliance upon legal advice and the nature of that advice is, inevitably, a theme which runs through a number of the issues in the List – see paragraphs 65, 101, 102,114,134,135,143,144,153 and 174. I am satisfied that those paragraphs properly demarcate that which needs to be investigated.
Theme C – Conduct of Group Litigation
13 In the Notice of Hearing, I asked whether an investigation into the conduct of the group litigation was within the Terms of Reference of the Inquiry and, if so, whether or not the conduct of the group litigation by POL and others should be investigated. All those who made detailed written submissions maintained that POL’s conduct of the group litigation was within the Terms of Reference. Those who made oral submissions maintained the same stance. All those parties also submitted that I should investigate how POL had conducted the litigation and, in some submissions, (both oral and written), the suggestion was made that I should investigate the conduct of the lawyers instructed by and on behalf of POL.
14 At this stage I am content that the conduct of the group litigation by POL is a proper line of enquiry. Very many powerful submissions were made in support of that view which I accept. I refer, in particular, to the submissions made in writing and orally on behalf of the clients of Howe+Co and Hudgells and by Professor Moorhead. At paragraphs 177 to 181 of the List of Issues, I have set the boundaries of that enquiry, at least as a starting point. I acknowledge that evidence may be obtained which might lead me to consider some aspects of the conduct of the lawyers instructed by and on behalf of POL particularly as evidence emerges in response the issues identified at paragraphs 179-181.
15 For the avoidance of any doubt, I make it clear that it was not suggested by any CP or IP that I should investigate the conduct the group litigation on the Claimants’ side and I do not consider it to be appropriate to include any reference to the Claimants’ conduct of the litigation in the List of Issues.
Theme D - Divergences across the United Kingdom.
16 I asked whether the Inquiry should investigate whether and to what extent there existed divergences in the policies and practices adopted by Royal Mail Group and POL within the four countries of the United Kingdom when taking action against SPMs, managers and assistants alleged to be responsible for shortfalls shown by Horizon. All those CPs and IPs who responded specifically to this Theme orally or in writing, with one exception, supported the view that the Inquiry should investigate these matters. The exception was BEIS which expressed themselves to be neutral in relation to this Theme.
17 My preference is that I should investigate this Theme. In the List of Issues, I have identified topics for investigation at paragraphs 162 and 163. I accept that the Inquiry’s work would be incomplete if it was confined to investigating the policies and practices adopted by Royal Mail Group and/or POL in respect of some, but not all, of the constituent countries of the United Kingdom.
18 However, I must act in accordance with the provisions of section 27 Inquiries Act 2005. The lines of investigation suggested in paragraphs 162 and 163 may ultimately require me to determine facts or matters which are wholly or primarily Northern Irish transferred matters, Scottish matters and Welsh matters. Accordingly, I will be writing appropriately to the Minister so as to ensure that the terms of section 27 are satisfied.
19 Pending an answer from the Minister, I cannot confirm the extent to which I will investigate the topics I identified at paragraphs 162 and 163 of the List of Issues. I will make a further announcement about the investigation of this Theme once I am in a position to do so.
20 It must be clearly understood that my investigative work will ultimately be guided by the evidence which emerges throughout the Inquiry. Accordingly, the publication of the List of Issues does not bind me to investigate a listed issue regardless of the state of the evidence. Further, emerging evidence may lead to me to the view that an issue should be considered notwithstanding that it does not appear on the published List of Issues.