Public Office (Accountability) Bill (First sitting)
The Chair
We are sitting in public and our proceedings are being broadcast, although I have asked specifically that the public not be admitted to the Public Gallery at this stage, simply so that they do not file in and then have to file out again for the private session. Will Members please switch off electronic devices? I remind everyone that tea and coffee are not allowed during sittings—if you want to have that, you have to go outside the room. Date Time Witness Thursday 27 November Until no later than 12.00 pm Hillsborough Law Now Thursday 27 November Until no later than 12.30 pm The Law Commission; Crown Prosecution Service Thursday 27 November Until no later than 1.00 pm Margaret Aspinall; Charlotte Hennessy; Steve Kelly; Sue Roberts Thursday 27 November Until no later than 2.25 pm Hilda Hammond; Jenni Hicks Thursday 27 November Until no later than 2.45 pm Lord Evans of Weardale Thursday 27 November Until no later than 3.10 pm INQUEST; Professor Julia Waters Thursday 27 November Until no later than 3.30 pm Grenfell United Thursday 27 November Until no later than 3.50 pm National Police Chiefs’ Council Thursday 27 November Until no later than 4.15 pm The Law Society; LAPG, the Legal Aid Practitioners Group Thursday 27 November Until no later than 4.35 pm The Chief Coroner of England and Wales Thursday 27 November Until no later than 4.55 pm The Independent Public Advocate Thursday 27 November Until no later than 5.30 pm Care Quality Commission; NHS Resolution; NHS England Thursday 27 November Until no later than 6.05 pm Flora Page KC; Whistleblowers UK; Second Sight; Hacked Off Thursday 27 November Until no later than 6.30 pm Mayor of the Liverpool City Region Combined Authority; Mayor of the Greater Manchester Combined Authority Thursday 27 November Until no later than 6.50 pm Daniel De Simone
We will consider the programme motion on the amendment paper, and then the motion to enable the reporting of written evidence for publication and the motion to allow us to deliberate in private about our questions before the oral evidence sessions. In view of the time available to us, which is very limited, I would like to take those motions formally, without debate. I hope that that will be in order for all members of the Committee.
Ordered,
That—
1. the Committee shall (in addition to its first meeting at 11.30 am on Thursday 27
November) meet—
(a) at 2.00 pm on Thursday 27 November;
(b) at 9.25 am and 2.00 pm on Tuesday 2 December;
(c) at 11.30 am and 2.00 pm on Thursday 4 December;
(d) at 9.25 am and 2.00 pm on Tuesday 9 December;
(e) at 11.30 am and 2.00 pm on Thursday 11 December;
2. the Committee shall hear oral evidence in accordance with the following Table:
3. proceedings on consideration of the Bill in Committee shall be taken in the following order: Clauses 1 and 2; Schedule 1; Clauses 3 to 9; Schedule 2; Clauses 10 and 11; Schedule 3; Clauses 12 to 15; Schedule 4; Clauses 16 and 17; Schedule 5; Clause 18; Schedule 6; new Clauses; new Schedules; remaining proceedings on the Bill;
4. the proceedings shall (so far as not previously concluded) be brought to a conclusion at 5.00 pm on Thursday 11 December.
Resolved,
That, subject to the discretion of the Chair, any written evidence received by the Committee shall be reported to the House for publication.—(Alex Davies-Jones.)
Resolved,
That, at this and any subsequent meeting at which oral evidence is to be heard, the Committee shall sit in private until the witnesses are admitted.—(Alex Davies-Jones)
The Chair
We are now sitting in public again and the proceedings are being broadcast. Before we start hearing from the witnesses, do any Members wish to make a declaration of interest in connection with the Bill?
Tessa Munt (Wells and Mendip Hills) (LD)
I wish to declare that I am a director and vice-chair of WhistleblowersUK, which is a non-profit organisation.
The Chair
That is now a matter of record. If any other Member has interests to declare, will they please do so before they start questioning?
Examination of Witness
Pete Weatherby gave evidence.
The Chair
We will now hear oral evidence from Hillsborough Law Now. I am afraid that we have to stick to very tight timings because of the number of witnesses we are seeking to call in these sessions. For this witness, we have until 12 o’clock only. Thank you for joining us, Mr Weatherby. For the benefit of the record, will you please indicate who you are?
Pete Weatherby: I am Pete Weatherby, a director of the Hillsborough Law Now campaign, which takes forward the Hillsborough legacy to change culture and create legal reform.
The Chair
Q
Pete Weatherby: Yes. Hillsborough Law Now has taken forward the legacy project. I led one of the teams at the Hillsborough inquest, representing many of the families, and I have led legal teams in the public inquiries into many other disaster and scandal cases. What happened to the Hillsborough families is well known, so I will not go into it. There was not just the disaster and the tragedy itself but, of course, the scandal of the cover-up afterwards. The Hillsborough families wanted to stop that happening to anybody else, and that is where the project came from.
I led the team that drafted the original Hillsborough law in 2017. It aimed to do three things: to establish a general duty of candour, to establish a duty to assist official investigations, and to rebalance legal representation for victims. The Government asked us to assist them with taking the project forward, given their manifesto commitment. Over the last year, we have met a number of Ministers and many officials to try to get the legislation as good as it can be.
By 16 September, we advised the families and the campaigns that the Government Bill that was introduced for First Reading substantially met the three pillars of the Hillsborough law. We, the Government and the families agreed that we would endorse it, but on the basis that there was further work to be done. We have provided a briefing to the Committee in which we have outlined the further measures that we would like to see, and we ask you to give them due consideration.
Dr Kieran Mullan (Bexhill and Battle) (Con)
Q
Pete Weatherby: Primarily, our concerns are around command responsibility and the extent to which the Bill covers, or does not cover, the intelligence services, and we have concerns about the clause 11 offence going too far in its requirements.
Dr Mullan
Q
Pete Weatherby: On command responsibility, the Bill, and the original Bill, created both individual and corporate duties, and quite rightly so. The problem with the corporate duties is that the offences require a very high threshold. They require either intent or subjective recklessness, which means that the person has to foresee the risk but nevertheless decide to take it. It is not impossible, but it is extraordinarily difficult, to apply that to an inanimate object like a corporate body.
In the original Bill, we imposed some corporate duties but put the responsibility for enforcing them on the heads of the public body involved; this has not quite been followed through in this Bill. We would like to see a simple amendment to clauses 5 and 11, as we set out in the briefing, to put that legal responsibility on the chief officer or the chief executive of the public body. Without that, a lot of the duties in the Bill are reduced to something that looks good but is rather ineffective. We have said all the way through that our watchwords are “practical” and “effective”. If law is not practical and effective, don’t bother. That is the first thing.
On the intelligence services, some of the many campaigns behind a Hillsborough law include the Manchester Arena families. There was a major failure of the intelligence services and the way they dealt with the aftermath of the bombing. This is all in the public domain: they had intelligence that related to the bomber and the bomber’s activities, and they did not act on it. The chair of the public inquiry, having heard closed evidence, came to the conclusion that they should have acted on it. Although he could not say whether it would have made a difference, it might have made a difference. Obviously, that is very important. The problem beyond that was that MI5 then put an incorrect narrative—a false narrative—to the inquiry itself. The judge, the chair of the inquiry, found that the corporate case that it had put was incorrect.
There are other examples. Obviously, we have very limited time. I know you are going to hear from Daniel De Simone, the BBC reporter, this afternoon. His case is another one where the security services have fallen short in terms of candour. These are not the only examples. We are very keen to apply the duty of candour and all of the duties here as much as possible to the security services. The objections to that are that it might interfere with national security. I represented seven of the Manchester Arena families, and I can say very clearly that there is no intention to interfere with national security whatsoever—quite the opposite.
The Bill drafted by us, and this Bill, does not affect national security, positively or negatively. It just does not affect it. What it does affect is that when the intelligence services have to report to an inquiry or the Intelligence and Security Committee or whatever, they have to tell the truth, whether in open or closed session. That is the key element of it. We think that has been missed.
The Government invited me to have a meeting with the intelligence services last night, and I did. I know that this Committee has been briefed as well. I think it was quite clear that the intelligence services have missed that point. We have put forward a very simple amendment that we think takes complete account of those concerns about national security. We ask you to look at that and to adopt that amendment.
The Chair
The Minister has graciously indicated that she wants Members to have the chance to ask questions. Minister, feel free to come back if you choose to. I call Tessa Munt for the Liberal Democrats.
Tessa Munt
Q
Pete Weatherby: No. The reason I have majored on command responsibilities is because that is a weakness in the Bill, but the Bill applies across the piece and to all public servants at all times, with the general duty as well as the duty of candour and assistance, which is the ancillary duty, if you like. So that is really important.
We are very keen to underline that this is an empowering Bill. In many of the cases—Hillsborough is a particularly good example—ordinary, decent police officers tried to tell the truth and were not allowed to tell the truth. This is a Bill that imposes a duty of candour across the piece. Everybody knows about it. Senior officers required junior officers to tell lies—this is the evidence they themselves gave on oath. That has to be stopped, and this Bill does that. We have tried to build in it those empowerment things, including whistleblowing—enhanced whistleblowing provisions and the like.
Maria Eagle (Liverpool Garston) (Lab)
Q
Pete Weatherby: I do not think there is a clear yes or no answer to that, but it is not strong enough. The purpose of what we want to do with command responsibility is to stop the chief constable thinking that it is okay to put the false narrative forward. If there is a legal responsibility on the chief constable to discharge the corporate duty, he is not going to do that. I think that if the amendment is made, the answer is yes; if the Bill is left as it is, it is more complicated. If it is left, I think it will make a big difference, but it will not stop as many of the problems.
There are other examples. Going back to Manchester Arena, the chief constable of Manchester put forward false evidence to the Kerslake inquiry. Those are not my words; he subsequently described it as “a very grave error”. He did that because he did not have command responsibility, and he thought he could get away with it. The command responsibility needs to be made clear, and the provision in clause 2(5) does not go far enough—it is ineffective.
Maria Eagle
Q
Pete Weatherby: Yes, absolutely.
Maria Eagle
They want to know what happened, and they want accountability where there have been errors or grave mistakes. In the Hillsborough case, of course, the match commander lied and then tried to cover up—unsuccessfully, in the end—what had really happened by smearing Liverpool fans and those who had died. It took many years—well, until the Hillsborough independent panel convinced the country of the truth—
Pete Weatherby: In 2012.
Maria Eagle
In 2012. It took a long time for that to be fully put to bed.
Pete Weatherby: Without a blink, in all the cases that I have done, you start with the tragedy itself, and of course everybody wants to know exactly what did or did not happen, but the cover-up does so much damage. People are absolutely outraged. Unfortunately, you cannot undo the bomb or the crush—whatever has caused it— but you then have it compounded by a cover-up, which does so much damage.
Maria Eagle
Q
Pete Weatherby: I think there is a huge role, and there is a discretion within the Government Bill to extend the duty of candour to panels. We would like that to be stronger—that would be great. Of course, there is no one size fits all. As somebody who has been involved in many public inquiries, I have a major criticism of the length of them. The duty of candour will scythe down the length of public inquiries, if it is used properly. Yes, there is an extension of legal aid in the Bill, but it will be dwarfed by the amount of money that will be saved if the duty of candour is used appropriately and properly.
On your point, absolutely, there is a huge role. I have been on panels myself, and it definitely is not a one size fits all. Internationally, there is learning about this. The best example is probably New Zealand, where there is a smorgasbord of different processes.
Seamus Logan (Aberdeenshire North and Moray East) (SNP)
Q
Pete Weatherby: Yes, I think that would be a sensible additional measure. I think the measure that we put forward in the briefing would, in a practical and effective way, do what we are setting out to achieve, but the more oversight that can be provided, the better. The ISC is well placed to do that and therefore it would be an additional safeguard. I cannot speak for everybody on that, because I have not seen an amendment in time, but it sounds like a very sensible suggestion.
Ian Byrne (Liverpool West Derby) (Lab)
Q
Pete Weatherby: I think that if the amendments that we are putting forward were made, it would be almost impossible for a Hillsborough-style cover-up to follow.
Ian Byrne
With the strengthening amendments.
Pete Weatherby: Yes. There is no silver bullet or absolute answer, because if people choose to lie, they choose to lie. What we are doing here is putting in so many deterrents—we are not interested in locking people up; we are interested in deterring them in the first place. The answer to the second question, building on the answer I gave Maria Eagle, is that the Bill goes a long way to solving the problem, but the amendments would make it much better.
On the question of international partners, let me deal with it this way. If the head of the French secret service were sitting in Paris, reading the BBC reports of the Daniel De Simone case, in which it is clear from the High Court that the security services misled two different constitutions of the High Court and the Investigatory Powers Tribunal, or reading the account of what happened with the misleading of the Manchester Arena inquiry, would they think, “Well, it’s good that the British secret services are doing that,” or would they think, “Next time we have a dealing with them, can we believe what they say?” The more candid that we can make this, the better the relationship with international partners. There is no threat here; that is a completely false road to go down.
Mr Tom Morrison (Cheadle) (LD)
Q
Pete Weatherby: I think there should be a mixture. There have to be central tenets to it; otherwise, we will fall into the problem where a local authority or police force will have its lawyers lawyering up a code that does not do what it should do. I think there should be a mixture on that front.
Lizzi Collinge (Morecambe and Lunesdale) (Lab)
Q
Pete Weatherby: We have set the standard very high indeed, because we are not interested in criminalising people and we are certainly not interested in scaring people. One example thrown at us during the discussions with the Government was that we might be criminalising junior civil servants who turn up late for work—absolutely not. Intent and subjective recklessness are high hurdles, but they are individual hurdles. A corporate body cannot easily act recklessly. It is not a legal impossibility; you do have health and safety or companies law offences, where there are corporate offences and you prove the mens rea—mental state—through the directing minds, but that is an incredibly difficult complication, and it does not really work with the offences that we are looking at here.
Lizzi Collinge
Q
Pete Weatherby: The Bill creates some individual duties, so you can prove them against the individual, but on the corporate duty, the simple way of dealing with it is the one that we put forward. It is really simple: it is a couple of lines, as you can see from the amendments we have put forward. You make the head of the organisation responsible for the discharge of the corporate duty. There is no problem with that.
Anneliese Midgley (Knowsley) (Lab)
Q
Pete Weatherby: We have had very detailed discussions with the Government about this over the last year, and clause 6 was the culmination of those. The clause baldly states that the provisions apply to the intelligence services, but with a caveat. That caveat in clause 6 is fine. The Government came up with a slight issue, which was that intelligence officers might inadvertently, without realising it, notify things that affect national security. The caveat in clause 6 deals with that, and that is fine. What it does not deal with is the clause 2(4) duty to provide the evidence subject to the notification. I am sorry if this is a bit legalistic, but there is a clear difference there.
What would happen is that the intelligence service would notify the inquiry or investigation of the fact that it had relevant information or evidence to give, but then the individuals within the intelligence service would be required to provide the material. Because the intelligence service is sighted on that, the material from the individual intelligence officers goes through the intelligence services before it goes to the investigation, so the national security aspect is dealt with—no problem.
We thought that was what the Government had agreed to, but when we look at a rather obscure part of schedule 1, clause 2(4) still applies, except that you cannot make it apply, because it stops the issuing of a compliance notice, which is what kick-starts the application of clause 2(4). So that device disapplies it, and that is the problem. If you just changed the schedule 1 thing, clause 6 would be fine. That is what we thought we had agreed to, to deal with the legitimate national security aspect.
It is important that the individual responsibilities apply to intelligence officers as well, subject to the national security checks. We do not think that is a problem at all. We challenged the intelligence services to tell us how it is a problem, and they have not. If they do not apply, you end up in the Manchester Arena situation, where the evidence was corporate and was wrong. It was not until the chair, who was extremely good, called the intelligence officers themselves—on oath, in closed proceedings—that the false narrative that had been put forward corporately was unpicked.
I am sorry if that is a bit complicated, but that is the problem. It is easily solved, and there would be no effect on national security. It would make our intelligence services better, in the same way as the rest of the Bill makes local authorities, police forces and everybody else better.
The Chair
I have to draw this session to a conclusion. Mr Weatherby, thank you very much for you evidence; the Committee is indebted to you.
Examination of Witnesses
Professor Penney Lewis and Tom Guest gave evidence.
The Chair
We shall now take oral evidence from the Law Commission and the Crown Prosecution Service. Good afternoon, and thank you for joining us. Again, we have to stick to the timings in the programme order that the Committee has agreed, so we have for this session, I am afraid, only until 12.30 pm. I would be grateful if the witnesses could confine their answers to some brevity, in order to obtain as much information through Members as possible. First, could you identify yourselves for the record?
Tom Guest: I am Tom Guest from the Crown Prosecution Service.
Professor Lewis: I am Professor Penney Lewis, the law commissioner for criminal law at the Law Commission of England and Wales.
The Chair
Thank you very much indeed. Does either of you wish to make a brief opening statement? I do mean brief.
Tom Guest: No, thank you.
Professor Lewis: No, thank you.
Dr Mullan
Q
Professor Lewis: Yes, there are some differences, but the Bill substantially implements the Law Commission’s recommendations on misconduct in public office. All of the core structural reforms have been adopted, in clauses 12 and 13. There are a few material differences in detail; I will perhaps run through them as a list, without expanding on them, and then if there are any you wish to pick up, you can.
There are some objective fault elements in both offences where the commission had recommended subjective awareness: in the seriously improper acts offence, the commission recommended that the defendant had to realise that a reasonable person would regard the act as seriously improper, whereas the Bill requires that the defendant knows or ought to know that. There is a similar shift in the breach of duty offence.
There is some divergence in relation to the defence to what we recommended as the corruption offence—the seriously improper acts offence. We recommended a public interest defence; the Bill has a reasonable excuse defence. We recommended that the persuasive or legal burden be on the defendant, whereas in the Bill it is only an evidential burden to raise the defence that is on the defendant.
There is an extra seriousness threshold in the breach of duty offence, which we explicitly rejected; we did not think it was needed. That is the requirement that
“the act…falls far below what could reasonably be expected”.
It is a sort of gross negligence threshold.
I think the other points are fairly minor. One is about the repeal of section 26 of the Criminal Justice and Courts Act 2015, and the other is some differences in relation to what counts as holding public office. Having said that, our recommendations on that were that the Government consider certain kinds of public office for inclusion in the list, and the Government have considered all of those kinds of public office. We had anticipated that further work would be needed to refine the list, and that work has been done.
The Chair
Thank you, Professor Lewis. Does Mr Guest wish to come in on the back of any of that?
Tom Guest: No, thank you.
Dr Mullan
Q
Professor Lewis: What it does is expand the scope of the offence. In circumstances where the defendant was not aware—did not realise—that a reasonable person would regard the act as seriously improper in relation to the seriously improper acts offence, or was not aware of the duty in the context of the breach of duty offence, under our recommendations, the defendant would not be liable. Under the provisions in the Bill, however, if the jury were of the view that the defendant ought to have realised the relevant fact, that would suffice. It is an expansion of liability.
Dr Mullan
Q
Professor Lewis: That is less clear. The one thing I could say quite confidently is that there is a significantly lower burden of proof on the defendant. The defendant just has to introduce some evidence to raise the possibility of a reasonable excuse, and the burden will then be on the prosecution to disprove the reasonable excuse beyond reasonable doubt—so to the criminal standard. That difference in relation to the burden of proof is favourable to the defence.
On whether there is a material difference in relation to a public interest defence versus a reasonable excuse defence, I think reasonable excuse would probably encompass things that would fall within a public interest defence and might be broader, but without anything on the face of the Bill constraining what a reasonable excuse is, it is difficult to say. I suppose, eventually, there will be case law that will deal with the question of what does and does not constitute a reasonable excuse in these circumstances.
Dr Mullan
Q
Tom Guest: No. In general, we were supportive of this project from the outset—not because we were having difficulties with the common law offence, but because it sets it out much more clearly to have it contained in an Act. It clears up certain areas such as, “Who is a public official?” and, “How should a jury assess seriousness?” We have not identified disadvantages with the misconduct provisions.
The Chair
The Minister has once again kindly waived her right to question, so I call Tessa Munt for the Liberal Democrats, please.
Tessa Munt
Q
Tom Guest: It is right to identify that the extension of liability is only to direct contractual relationships, so not necessarily further down the line. I would make two qualifications to that. First, we will look at the evidence and the precise contractual relationship—what the evidence of the contract is. Secondly, I think we are talking about clause 4(2) here, which would also cover a private contractor who had a health and safety responsibility in connection with the incident. Although it does not cover the contractual relationship further down the line, that is an alternative route to liability.
Tessa Munt
Q
Tom Guest: Let me explain how the DPP’s consent to prosecute works. In most criminal offences, a private prosecutor or the police can commence proceedings—so they get a summons or they charge someone, the suspect becomes a defendant and they go into the court system automatically.
Where the DPP’s consent is required, that means that the permission of the CPS is required to prosecute. We apply our standard tests to that: “Is there sufficient evidence to prosecute?” and “Is a prosecution in the public interest?” They are the same tests that we apply to a prosecution. If we conclude that those tests are met, we take the prosecution forward ourselves. If we conclude that they are not met, the case does not go into the court system.
The purpose of the DPP’s consent is to make sure that unmeritorious or vexatious prosecutions cannot get taken forward. Certainly, in terms of the misconduct offences, sometimes there are private prosecutors who wish to take forward unmeritorious prosecutions, so it is a check and balance on that. If it is a meritorious prosecution, however, we will go ahead with the prosecution ourselves.
The Chair
It would help if Members could indicate which witnesses they wish to address their remarks to.
Natasha Irons (Croydon East) (Lab)
Q
Tom Guest: That is one of the tests that we have tried to look at when we have been looking at the draft provisions. First of all, there is not a freestanding defence to the duty of candour—there is no reasonable excuse or anything like that—so the Bill is tightly drawn in that respect. There are also no viable defences elsewhere in criminal law that we can see, so the duty of candour is very tightly drawn to be complied with.
The one point that is important to draw attention to, in the interests of transparency and frankness, is clause 3(7), which makes it clear that
“The duty of candour…does not require a public authority…to breach any prohibition or restriction imposed by”
an Act of Parliament
“or a rule of law”.
When I say it is tightly drawn, it is not open ended. The public authority has to point to an actual Act of Parliament or a rule of law where the duty of candour does not require it to breach a prohibition or restriction. That is the one thing we wanted to draw to your attention, but otherwise there are no freestanding, wider reasons why public authorities cannot comply.
Seamus Logan
Q
Tom Guest: Just to make it clear, you are talking about the clause 11 offence, because the clause 12 misconduct offence also uses the words “seriously improper”. I will take the examples you have given to be referring to the offence of misleading the public.
The advantage of the Bill is that it clearly sets a standard for a jury to apply. Every jury is going to have to look at the specific evidence in the case. What did the suspects know? What were they withholding? What means did they take? What did they know at the time? Was it in the heat of the moment? The jury must consider all the evidence, and it is not possible to cater for all the different factual scenarios that might apply. The advantage, though, is that you have clearly set out in the Bill a standard set of considerations for a juror to apply, and they are clearly directed at setting a threshold between improper and seriously improper. Clause 11(3) is about as clear as you can get when you bear in mind that it has to apply to all kinds of potential factual scenarios; it is clearly set out there how to apply that assessment of seriously improper.
Lizzi Collinge
Q
Professor Lewis: Yes. I would phrase it slightly differently: I would say that the prosecution will have to prove beyond reasonable doubt that there was no reasonable excuse, rather than thinking about truth or falsity. But, yes, once the defendant introduces evidence that raises the defence of reasonable excuse, they will have met their evidential burden, and the persuasive or legal burden will then rest on the prosecution.
Lizzi Collinge
Q
Tom Guest: When I mention that risk, it is to guard against the risk of unmeritorious prosecutions. Before there is a prosecution, there has to be an investigation. Again, you can have private investigations or police investigations. We at the CPS do not see a prospect of unmeritorious police investigations, and we do not see a present risk, although we see some risk, of unmeritorious private investigations. The DPP’s consent comes in at the point of asking, “Is this going to go into the court system or not?” At that point, we as the CPS are assessing whichever investigation has happened against the standard tests of, “Is there sufficient evidence to prosecute the suspect?” and, “Is a prosecution required in the public interest?” Whoever the suspect is, we will assess that against those standards.
Mr Tom Morrison (Cheadle) (LD)
Q
Tom Guest: It is fair to say that it is quite widely drawn, and there can be good policy reasons for that. Clearly, it is important to uphold the freedom of speech and protect the interests of journalism—not having a chilling effect on journalism is important. We understand why it is drafted in that way, but it is drafted quite widely. It would appear to cover those examples. Again, I am giving that at a very broad level. In a real-life scenario, the police would have gathered much more evidence for the prosecution to consider, but it potentially would cover those situations.
Douglas McAllister (West Dunbartonshire) (Lab)
Q
Tom Guest: From a practical point of view, in prosecuting misconduct in public office we do not generally have a problem with that—although I will come on to situations in which we do—because you have already shown that a police officer is doing something very serious indeed. The chances of them establishing that they had a reasonable excuse for that are very slim indeed. For context, it is quite rare that that is successfully raised because the prosecution should already have shown that something pretty serious has happened.
To give an example, we did have cases where public officials were providing information in return for money. On one view, that was a form of corruption, but their defence was, “I have a reasonable excuse for that.” Let me just run through how that works. It could be raised in several formats—ideally, by them giving evidence, but there are other ways. They can try to introduce it in the course of the prosecution case. There is a judge filter—the judge will not allow any old reasonable excuse to be put to the jury—but if the judge is satisfied that it is right for it to go to the jury, ultimately it will be for the jury to assess. The juries did assess that in those examples where public officials were providing information in exchange for money.
The Chair
Q
Professor Lewis: Not really, but just as background information, it is not uncommon in criminal law for there to be a burden on the defendant to raise a defence, and for the burden to disprove that defence to lie with the prosecution. That is a common method of ensuring that not every defence has to be negatived by the prosecution while reflecting the presumption of innocence.
Maria Eagle
Q
Subsequently, there was a cover-up that involved police officers from South Yorkshire and West Midlands police altering statements to try to get across a narrative about what had happened that was different from the truth. None of the officers who engaged in any of that has ever been found guilty of any offence or held to account in any way. Do you believe that if the offences in the Bill had been on the statute book at the time, there would have been a proper chance to hold those officers to account?
Tom Guest: I begin by echoing what the previous Director of Public Prosecutions, Max Hill, said of his sorrow and regret about the outcome of those trials. He was also focused on whether there was an opportunity to put better and clearer law plainly and clearly on the statute book. We feel that that has happened in this Bill. I am afraid that, even if I had seen the evidence, I would not be prepared to comment on particular cases and particular situations. Do I think that the new provisions better and effectively reflect the law on misconduct in public office? Yes, I do. Are there any risks to the provisions? No, we have not identified any. That is perhaps as much as I can assist.
Ian Byrne
Q
Tom Guest: I partly covered this previously but, to draw that out, no, we have not identified any freestanding offence, either in the statute or in general, that is likely to apply. It is important to underline that clause 3(7) covers the fact that if there is another Act of Parliament or another rule of law that prohibits providing information, the duty of candour does not override that. That is the only exception to the duty of candour that we have identified to draw to your attention.
Dr Mullan
Q
Tom Guest: The statutory limits introduced by the Bill seem to fit the culpability in the two offences. The breach of duty offence is clearly far more serious because it engages a duty to prevent death or serious injury. We see the statutory penalty as high and suitable, so far as it is for the CPS to say that. Similarly, the seriously improper acts offence perhaps does not have the same level of culpability but it still has a significant penalty. It is within the remit of the unduly lenient sentence scheme, so we have not identified any concerns about the proposed penalties.
Dr Mullan
Q
Tom Guest: I am not aware of them. There is always a question of overlap. If you have another offence, such as an offence of rape, then we would be charging rape, and we have the maximum sentence of life there.
Dr Mullan
Q
Professor Lewis: All I can say in relation to the misconduct in public office offences, the ones that the Law Commission recommended, is that we recommended the Government consider the inclusion of contractors. They have not been included separately in schedule 4 but, as Mr Guest said, I do not think I am in a position to comment on whether in particular cases, particular offences may have been committed, because one would need to see the evidence and one would need to be a prosecutor in order to take a view on that.
Dr Mullan
Q
Professor Lewis: If someone were in public office, which I think is not necessarily the case based on the clauses before us, it is possible that the seriously improper act offence could be considered. I think that is as far as I can possibly help.
Tom Guest: Turning to the duty of candour extension, which directly addresses this, I think our straight answer is that “direct contractual relationship” is in the Bill for a reason; of course we would look at the evidence and the precise contract, but it does appear limited to that. I agree with what Professor Lewis said: when you come to the misconduct in public office offences, schedule 4 is intended to reflect existing public offices, but every attention should be paid to it to decide whether it has become any wider or more narrow, and whether there is good reason for that. We are not expressing a view but, if we are going to replicate the existing common law, we need to make sure that schedule 4 does so effectively.
Joe Powell (Kensington and Bayswater) (Lab)
Q
Tom Guest: Even if I were possessed of the information about the Grenfell live investigation, I do not think it would be wise for me to comment on that directly. However, having scrutinised the proposals on the duty of candour, we do not say lightly that it is tightly and clearly drawn. There is not an ambiguity in what is expected of public officials or public authorities in principle.
The Chair
Thank you very much for your evidence, Professor Lewis and Mr Guest. The Committee is most grateful to you.
Examination of Witnesses
Margaret Aspinall, Charlotte Hennessy, Steve Kelly and Sue Roberts gave evidence.
The Chair
Good afternoon and thank you for joining us. We are now going to take oral evidence from Margaret Aspinall, Steve Kelly, Sue Roberts and Charlotte Hennessy. May I ask you very briefly to introduce yourselves? We will the do the introductions first and then we will take, if you wish, a very brief opening statement from all or any one of you.
Sue Roberts: My name is Sue Roberts. I lost my older brother—well, he was unlawfully killed at Hillsborough. I was only 23 at the time. I feel like I have lived my whole adult life under this dark cloud of Hillsborough. I lost my parents, particularly my dad, prematurely because of the torment that the parents went through because of Hillsborough. I am now trying to continue to right things for future generations.
Steve Kelly: My name is Steve Kelly. I lost my older brother, Michael, who was also unlawfully killed at Hillsborough. I am 72 years old now, and I have spent half my life trying to right that wrong. It is something that has not only tormented us; it has haunted us. We have given so much of ourselves—as Sue rightly said—so that in years to come, people will never go through this again. It has been cruel, and it will continue to be cruel until we get sanctions in place for those that break the law, cut corners and cover up. We will carry our fight on until that happens, and we hope you look favourably on us today.
Margaret Aspinall: My name is Margaret Aspinall. I lost my eldest son, James, who was just three weeks into being 18 and at his first away game at Hillsborough. He was unlawfully killed. I had four other children besides James; James was the eldest. They have lived their lives under the shadow of Hillsborough, watching their mother fighting, campaigning and trying to get justice for the 97. It is an absolute disgrace what has gone on over the years. We are now 36 years down; all that we want, and all that we are here for, is to have a Hillsborough law to change a system that was so corrupt and morally wrong against ordinary people—that is why we are here today. My children and grandchildren are living under the shadow of Hillsborough now. To me, that is an absolute disgrace, 36 years on.
Charlotte Hennessy: I am Charlotte Hennessy. I am the daughter of Jimmy Hennessy, who was unlawfully killed at Hillsborough when I was six. I am now 43 years old and a mum of four sons. I have spent my whole life quite literally trying to climb out of this hole—the cover-up of what happened at Hillsborough. I am here today to represent what happened to my dad.
Could I ask the Committee to speak a bit louder? Margaret, Sue and Steve struggle to hear.
The Chair
Thank you very much indeed. Before I invite questions, can I say personally how very much I appreciate that you are here and have taken the trouble to be here today. The lines of questioning will be as sympathetic as, under these circumstances, it is possible to make them.
Dr Mullan
Q
I will just ask whether any of you want to talk about how things might have been different, and how the experience might have been different for you, had you known what had happened from the start and had truth from the outset.
Charlotte Hennessy: My experience is very different from Margaret’s, Sue’s and Steve’s, because I was so young. I did not know the magnitude of what had happened until the Hillsborough independent panel released its report. That was the only opportunity I had to access evidence statements and be able to piece a timeline together of what actually happened to my dad. That was when I really realised the magnitude of what had happened. I want to acknowledge the Hillsborough family members who are not here today—if it were not for them, and for the survivors who stood by their truth even when they were shut down by those who were supposed to protect them, and if they had not fought the fight, children like me would never have known the truth of what happened.
For me, it only got worse from there. It was like Hillsborough had just happened at that time, because that was when I realised that my dad’s original cause of death was completely untrue—even down to his pathology report being untrue. It was not how my dad died. I will not speak about the details here, but I will send them privately to the Committee. It has had a profound impact.
Had all that information been available, I do not think I would have had to spend my whole teenage and adult life fighting for the truth of what happened to my dad. It now impacts my own children, like Margaret said earlier. My husband is here in the room today. We have had to educate our children on the seriousness of those lies, on the impact of the cover-up, and on the fact that their granddad would have been buried in a lie if it were not for those good people.
The Chair
Could I just ask, because there are four of you, that you indicate when you wish to add to the first answer given? That will help me to help the Committee, as we have quite a lot of questions to get through.
Dr Mullan
Q
Margaret Aspinall: Yes. The family has had great financial loss. As I said earlier, I had four other young children. The youngest was only six—the same age as Charlotte—at the time, the next was seven, one was nine, and then a son who was fifteen going on sixteen. They had an absolutely terrible time. I had to change their schools because of things young children were saying. Innocent children were saying terrible things about how their brother died and how it was caused. Obviously, it was what they were listening to, so I had to change their schools. It was a very difficult thing. My husband was at the game as well, and he has never been to a game since. He just cannot face going to another football match. My children went through a terrible time, like Charlotte did.
At the same time, I realised something when Sue and I were working in the Hillsborough office a few years ago. A phone call came through, and Sue said to me, “Margaret, there’s somebody on the phone for you.” I picked the phone up, and it was my granddaughter, who was 10 at the time; she said, “I would like an appointment to see my nan, please.” I thought, “I’m doing to my grandchildren exactly what I’ve done to my own children.” I was working so hard, and not just myself, but others—though I can only speak for myself—to get to the truth of Hillsborough. The lies and the cover-up, as Charlotte said, were an absolute disgrace.
When it came to the funding, we had to pay for every court case we went to. I am even talking about even judicial reviews, scrutiny, inquests, all different things. We paid every step of the way, and they had lawyers paid for by the state—from our taxpayers’ money—while we had to go cap in hand, trying to fight for the truth that was there all along, and for justice. What families went through—I cannot forgive that.
My children grew up with Hillsborough and my grandchildren are growing up with Hillsborough now, 36 years on. They are still not seeing their nan because I am busy doing other things to try to get a Hillsborough law, alongside others—good people, unsung heroes, who are supporting this campaign. They have done so much to change a system that must be changed—not for us, because it is too late for us—but for the good of this nation. The law has got to be changed, in all its entirety.
Steve Kelly: On the point of finances, when Hillsborough happened, obviously your finances just did not come into it. I will speak personally—I was a taxi driver at the time, and taxi drivers never earn good money, do they? You are always struggling, but you get by. I remember that I had to go to Sheffield to find my brother, I came home, and the last burden that I wanted to give to my mother and my sister Joan was issues of finance.
When the disaster was coming to the fore and all the information was coming out, we were obviously making plans to bury our brother. There was only one thing you could do at that time: you would go and borrow the money. I went to the bank and borrowed the money. I never, ever went to my mam and told her how much it was. Again, she had just lost her son, and she did not know how. You just bore those problems and lived through them for years, on the financial side alone, with paying loans back and so on.
That is why we want this law in—we beg you to bring this law in—because the trauma alone of losing someone, and then the trauma again of all these years fighting back, is so difficult to bear. The financial burden was not even a second thought—I appreciate the question, but it was nothing to do with us really. We got through it. People should not have to get through things. People should be helped and supported. This law, hopefully, will do that.
The Chair
Once again, the Minister has indicated that she wants Members to have the opportunity to ask questions. I call Tessa Munt for the Liberal Democrats.
Tessa Munt
Q
Charlotte Hennessy: We are very confident. We have literally given 10 years of our lives, fighting to be here in this place. We have to acknowledge that Keir Starmer is the only Prime Minister who has endorsed the Bill. I would like to remind everyone that our Prime Minister made me a promise. He made a pledge to the public. It is now your duty to ensure that you fulfil that promise as well. If we were not confident in the Bill, we would not be sitting here today.
Steve Kelly: Just touching on something that Seamus was talking about before, about changing cultures within authorities and so on, I would like to give you an example that has never left me. During the Hillsborough inquests, a man in his 40s or early 50s was giving evidence. He was an ex-PC—at the time of Hillsborough, he was probably a young PC. He was being questioned about the culture within the South Yorkshire police force at the time in 1989.
I will never forget that man saying, “When you used to go Snig Hill, and you’d be walking along the corridor, you’d hold your head down when you’d see the bosses. You daren’t look at them, because we were frightened of them.” How could we encourage young officers like that to become whistleblowers? You couldn’t. We need a culture change. I thought that was a great point that this is something this law might do for not only policemen, but any public servants—anyone deserves support if they are trying to right a wrong.
That young policeman must have taken that with him to those inquests. I remember looking at his face and thinking, “That’s the first time you’ve got that out.” The burden was on him all those years as well. It should not be like that. Hopefully, the Hillsborough law will support that.
Sue Roberts: You are right; the culture changes have to be led from the very top—from the CEOs of these companies. Either they have to want to make this change happen or they need to move on.
Anneliese Midgley
Q
Charlotte Hennessy: We completely support what Pete said earlier and the amendments that he has suggested. We are in full agreement with all the information that has been included in the Bill. Going forward, we need to acknowledge that Hillsborough is our story, but there are many, many others. We also need to acknowledge that the Hillsborough Law Now campaign group is made up of so many other examples of miscarriages of justice. They will have submitted their own evidence to you, so I will not name them all today, but we need to ensure that there is change going forward. We cannot keep allowing the same situations to repeat.
Not to be disrespectful, but ultimately we also need to acknowledge that the current laws that are in place failed to secure prosecutions against those that were responsible. David Duckenfield told that one lie while he stood over people who were scrambling for their lives. He got away with that because the Crown Prosecution failed to secure a criminal case against him. He was offered sympathy while family members had to sit and watch. He was allowed to place files so that he did not have to look at the family members that were sat in the public gallery.
We could sit and talk about examples all day. Norman Bettison was in this building. He briefed people about what happened at Hillsborough. He was allowed to do that. He was then made chief constable of Merseyside and then he was knighted. He was complicit in the cover-up. We have to change it. It has to stop.
Margaret Aspinall: I have to thank Maria Eagle—if you don’t mind, Maria. I always remember, a good few years ago, Maria having the power—the guts—to stand up in Parliament and say that it was “black propaganda” with Bettison. She was absolutely spot on.
When I look back over the years and think about what Charlotte was saying earlier, Mr Duckenfield—I call him Mr Duckenfield out of respect to all of you; otherwise I would not—walked away scot-free. He went missing for a couple of hours and not one person knew where he was. He could not remember where he had been; he could not remember where he was. He must have been the bloody Invisible Man because, good God, there’s no way. I think the police were scared to say exactly where he was. They were all scared; they were all covering up for each other. To me, that is an absolute, utter, utter disgrace of a system in this country.
I know we can’t bring judges up, but there is a few of them should be brought up. When we were at the private prosecution, where a judge could turn round and tell Mr Duckenfield, “Don’t worry, Mr Duckenfield, you won’t get a custodial sentence,” we knew then we had no chance—no chance. He directed the jury twice, because they came in and asked a question. For him to turn round and say, “What message are you sending out to the emergency services if you come back with guilty?”, what does that tell all of you? It tells you we had no chance whatsoever. We were up against a system that was corrupt from the very top to the bottom.
I feel sometimes we are on trial yet again for what happened at Hillsborough, because we are sitting here like this. I feel I am trying to ask all of you to do the right thing. I have asked the Prime Minister. He made that promise; he made a phone call to me that he would do the right thing. As Charlotte said, we thank him for that. He has made that promise; he will have to fulfil that promise. He has also promised it would not be watered down. For Hillsborough families—and for the likes of Ian as well, who was at that game and who knows what we have all gone through and what the survivors went through—we are here to change a system that should have been changed decades ago. When you look at all the cover-ups that have gone on—I can name them all, but I won’t, because I am sure you all know—it is a disgrace that we are sitting here now, 36 years on, trying to change the system. I am asking all of you, please don’t let anybody else go through what we have gone through. Please, I ask you all: do the right thing.
The Chair
Q
Steve Kelly: You asked us what the Hillsborough campaign wants from this. The Hillsborough campaign finished; Denton, Foster and Metcalf were found not guilty. I remember being there that day. Again, it came back that the case had been quashed. They walked away, after some of the most horrific things you could do as a policeman or a solicitor. I can remember, although I was surrounded by the campaigners and survivors who have supported us all these years, the feeling of loneliness, thinking, “What now?” We had been all these years fighting; looking for truth, which we never got—we got some truth; looking for justice, which we never got—we got justification; and looking for accountability—someone mentioned it before—and we have never had accountability.
I went home that day—I live alone—and I sat at home that night and sobbed. Why? I had done nothing wrong. I was just a lad from Liverpool; I’d done nothing. But those three men walked away with not a stain on their reputation, with their full pensions, and probably with a smile on their face—I had actually seen the smiles on their faces as they left the courts. You shouldn’t let anyone do that, to anyone. It is cruel. As I say, there was that feeling of loneliness and defeat. We had done nothing wrong. Why did I feel defeated? Because I couldn’t go to my mother’s grave and say, “We got them.” It shouldn’t happen.
Charlotte Hennessy: Can I just—
The Chair
One moment; do you mind if I just take Sue Roberts? Then by all means come back.
Sue Roberts: For my parents, and I am sure all other parents, it was just a feeling of despair. I thought this judicial system was the best judicial system in the whole world. Little did I know how wrong I was. We need to make our system the best in the world, and the Hillsborough law is the first step in the right direction.
The Chair
I will ask you to come in again in a moment, Ms Hennessy. As Ian Byrne was at the match, it is probably appropriate that I call him next, and then by all means comment.
Ian Byrne
Q
Charlotte Hennessy: We fully endorse all the amendments that Peter has already submitted.
Ian Byrne
Q
Charlotte Hennessy: I think they are needed; they make the Bill stronger, and anything that makes the Bill stronger is imperative.
Steve Kelly: We touched on it before—sorry, I am not sure who it was—but there should be more sanctions on the press. Without the press reports, the Hillsborough story would not have been as disastrous for us and would have not taken so long to come to a conclusion.
James Asser (West Ham and Beckton) (Lab)
Q
You have expressed your confidence in the Bill, and we want to get it right. Given that you have had to spend four decades of your lives campaigning on this, which is an extraordinary and appalling amount of time to get to this point, if we get this passed and deliver on your confidence, what does that mean for you? Does it mean that you can say, “We have won. We get our lives back. We can do all the family things that this has taken up”? Or does it change your campaigning so that you can support others? You may have not thought about that point. I just want to make sure that we understand, if we get this done for you, and if we get it done right, what it actually means for you. I think it is important that we know.
Steve Kelly: You do think about it every day. We are confident—believe it or not—and we have a lot of hope.
Sue Roberts: We keep having this conversation.
Charlotte Hennessy: We do; it is something that we talk about often.
Sue Roberts: We cannot wait for there to be a Hillsborough law so that we can move on.
Charlotte Hennessy: We know that we are never going to be able to secure criminal prosecutions for what happened to our loved ones—that ship has sailed. The best thing that we can do now is just make sure that nobody ever goes through what we have been through. Yes, that is a conversation that the four of us have very often. Once the Bill is passed in its entirety, I think we will be done.
Margaret Aspinall: I always say that, with Hillsborough, it is not all negativity; there is positivity as well. The positivity is that we have changed things in the way that supporters are treated. They were treated appallingly in the ’70s and the ’80s—I think back to my own husband—but we have changed things in that way. People now have a choice of either standing or sitting, with about a 99% certainty that they will go home.
I think the most important positive thing that we can get out of Hillsborough is having a Hillsborough law for the people. It would be a wonderful legacy for the 97, and this is for them as well. That is most important thing: that they have left a legacy and changed a corrupt system that was so wrong. I think our job will be done then.
I was a relatively young woman when I lost my son. I am a very old lady now—I am not going to tell you all how old I am, by the way, but I have had a bus pass for quite a few years. For most of my life, I have not seen my children grow up, or my grandchildren growing up —one is engaged now. It is so wrong, and nobody should have to face that and to fight and campaign for truth, for justice—or for accountability; I do not think there was any such word as “justice”.
If we get this Hillsborough law passed—and get the King to rubber stamp it, or whatever happens—our job will be done. The good people behind us are unsung heroes who have helped us along this journey. There is a lot to thank them for as well, and hopefully to thank all of you for.
The Chair
There are a lot more questions that Members would like to ask all of you, and no doubt there are a lot more answers that you will wish to give, but we have run out of time—that was inevitable this morning. Thank you so much for coming. I appreciate that it has not been easy for any of you; we all understand that, but we are deeply grateful to you. Thank you so much.
Charlotte Hennessy: Thank you for the opportunity. As members of the Bill Committee, you have a huge opportunity to change that culture and make our legal system stronger and better. Please do not waste it, and please do not let the public down.
The Chair
That brings us to the end of the morning session. The Committee will meet again at 2 pm this afternoon here in Committee Room 4A to continue taking oral evidence.
Ordered, That further consideration be now adjourned. —(Jade Botterill.)