Public Office (Accountability) Bill (Second sitting)
(6 days, 7 hours ago)
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The Chair
We will now hear evidence from Deborah Coles, executive director at INQUEST, and Professor Julia Waters.
The Parliamentary Under-Secretary of State for Justice (Alex Davies-Jones)
I do not have any questions. We are short of time, so I would rather allow other members of the Committee to ask questions.
Dr Kieran Mullan (Bexhill and Battle) (Con)
Q
Deborah Coles: Thank you for the question. It has been a long-standing campaign of ours to try and sort out what we perceive is a real inequality of arms. The best way to describe it is that it is a traumatic and distressing process to go through an inquest into the death of your loved one in any event, but to try and navigate those processes without your own individual legal representation, and even be expected to ask questions yourself or rely on the coroner to do so on your behalf, is not only extremely unfair but I think perpetuates the sense that the system is not working to get to the truth and to deliver the answers that you want as a bereaved person about how your loved one died.
I can think of so many examples since INQUEST was set up where families still today talk about the retraumatising nature of the inquest process. What legal representation can do as well is enhance the really important preventive function that an inquest can play in safeguarding lives in the future, but that is only where you have a family with the benefit of a lawyer to explore the areas of concern. In our experience, too often the default of state and corporate lawyers is to try and defend their reputations, to try and narrow the scope of the inquest process, and try and prevent consideration of the very serious issues that need exploring, particularly when we are talking here about how our work is predominantly around state-related deaths, where the state had a duty of care towards somebody. In our experience, it is only through legal representation and where families feel that they can play a meaningful and effective part in the process that the truth can come out.
Dr Mullan
Q
Deborah Coles: There is a lot to be said about the inconsistency of the coronial system. Different coroners approach their roles in very different ways. It is quite hard for an individual coroner when they are confronted with teams of state lawyers representing different interests to then try and properly represent the interests of an individual family. Some coroners can try and do that, but that does not take away from the fact that it is the relationship that the bereaved family have with their lawyer that can often ensure that the questions of the utmost importance to a bereaved family are actually asked.
Dr Mullan
Q
Professor Waters: It was two years ago exactly on this day that the inquest into my sister’s death started. We found out four days before the commencement of the inquest that our application for legal aid had been refused—four days. In preparation for that and the possibility that we might have to go into the inquest not represented or foot the bill ourselves, or the lawyers have to do it pro bono—why should they?—I read over 2,000 pages of disclosure evidence. It was very traumatic, as you can imagine, to read some of the details of what my sister went through and some of the medical reports and so on. That alone was traumatising.
A freedom of information request recently found out that Ofsted, which is one of three public bodies—interested parties—that our family were up against, spent £68,000 on external counsel alone and could not provide us with the figures for how much it had spent in its internal legal department. Ofsted has its own legal department—but it still spent £68,000 of taxpayers’ money on external counsel. Presumably, the other interested parties, Reading borough council and Berkshire NHS trust, will have spent similar amounts of money and also have their own internal legal departments. My family, as taxpayers, were indirectly paying the legal fees of the three bodies that had done harm to my sister. That just speaks volumes on the imbalance of power in this system.
It is really retraumatising that at your absolute lowest—and I really hope that no one in this room has been where I was—it is at that point that you suddenly have to navigate this entirely alien system. You do not have lessons at school on what an inquest is, where you find an inquest lawyer, what a prevention of future deaths report is, what kind of coroner you want or what kind of inquest you are going to get. But suddenly, when you are absolutely traumatised by a terrible and preventable death of a loved one, you have to find this stuff out. I am here speaking to you. I have been speaking publicly about what our family has been through and continues to go through—but for every person like me and the other witness, how many hundreds of people are there who are crushed by that system and are unable, for whatever quite legitimate reason, to stick up for themselves and inform themselves? Parity of arms is absolutely crucial and it cannot come soon enough.
Tessa Munt (Wells and Mendip Hills) (LD)
Q
Thank you to the witnesses. I am very sorry to hear what happened.
Professor Waters: It is still going on.
Tessa Munt
I know. I salute your courage. Thank you both for saying what you did. On whistleblowing, what do you feel there might be in the way of protections within this scenario? What protection should there be for whistleblowers?
Professor Waters: Speaking just from my own experience—not as a lawyer or anything—in the last nearly three years since Ruth’s death I have been contacted by various people within Ofsted who shared some really quite disturbing information about its behaviour and its rewarding of certain members of staff who were associated with Caversham primary inspection and other appalling cases. When I have asked if they will speak out, they have said that they do not dare. They have to sign some form of the Official Secrets Act 1989. I have been contacted by numerous headteachers who have been traumatised by Ofsted inspections and have lost their jobs, health and nearly their lives. They have not been able to speak out because they were made to sign non-disclosure agreements in order to get some money to support their families.
It just seems that at every level mechanisms are put in place to do the absolute opposite of what inquests and inquiries should be doing, suppress legitimate concerns and defend people who are causing active and ongoing harm. The stronger the defence—the protections—for whistleblowers, the better, and maybe, finally, all the people from Ofsted who have contacted me will be able to go public with the things they have told me.
Deborah Coles: The only thing I would add to that is that, in the context of the Hillsborough law, we are talking about trying to effect legal, cultural and practical change. If we can help rectify the culture of cover-up, obfuscation, denial and defensiveness that occurs when things go wrong—we are talking across inquests and inquiries not only when people have died, but for other injustices—one would hope that that will help victims in the long term, because it will enable honesty and truth telling. Hopefully that will permeate across the system to those who have important evidence to contribute to inquiries and inquests.
Tessa Munt
Q
Professor Waters: I have written various messages recently to Martyn Oliver, the chief inspector of Ofsted, quoting those Nolan principles. I have received replies that apologise for his insensitivity and promise empathy. I have not asked for empathy, sensitivity or a performance of those; I have asked for honesty, but that clearly does not work. Ofsted has a code of conduct, which they kept quoting in the inquest, but the coroner clearly found that that code of conduct did not apply. There are the Nolan principles, codes of conduct, accountability hearings, and even an offence of perjury, but none of them seem to work—they are too easy to slip away from. A statutory duty of candour with the possibility of criminal sanctions is sadly what is needed—it beggars belief, but that is what is needed to make public bodies be honest.
Deborah Coles: I think the thing that people find quite shocking when we are talking about the Hillsborough law is that you have to effectively legislate to get people to tell the truth. I support what Professor Waters says about penalties, but is also about monitoring and evaluation, because the Hillsborough law will only be as good as its implementation. As I said, up and down the country, there are families going through legal processes that are so defensive and traumatising that the injustices that you heard expressed today by the Hillsborough families—and you will hear more later—about the lying, victim blaming, delays and denials are still being faced by families going through these processes today. That is why the Bill is so important.
The Chair
I call Lizzi Collinge for, I am afraid, what is likely to be the last question on this—we might possibly get a couple more in.
Lizzi Collinge (Morecambe and Lunesdale) (Lab)
Q
Deborah Coles: The first thing to say is that the legal aid provisions will quite clearly have a transformative effect, because families will no longer have to go through intrusive funding processes, crowdfund or represent themselves.
In terms of a change in culture and the duty of candour, at the moment, as I explained, we see exactly what families have spoken to you about: a process that is adversarial in nature and victim blaming. Time and again, families describe their experiences as a battle. These are grieving families who have experienced death, very often where the state has a duty of care; something has gone catastrophically wrong, yet they have to try to drag information out of the people responsible. It is utterly unacceptable. If the Bill actually lands on the ground, meaning that organisations have this duty of candour from top to bottom, and people are called to account if they continue to behave in the way you have had described, I feel that it will change the experience.
The other thing to say is that there might be some suggestion that this is going to cause problems within the coronial system, which is our area of expertise. The Bill is trying to stop the battle to drag information out of people. There will be proper disclosure and open honesty from the outset about where things have gone wrong. It should mean that processes are shorter and less traumatising, and that they can deliver the answers that not only families need but we as a society need to learn, so that deaths are not repeated.
Professor Waters: The characteristics you mention were absolutely mine and my family’s experience of the inquest, with Ofsted withholding information or providing redacted information. In fact, it was so heavily redacted that it required us to have a second pre-inquest review, so it extends the process and adds to the expense.
I know there has been some discussion about the legal funding potentially being delayed because it might lead to a bigger budget, but parity does not mean more money. In the case of the Ofsted legal team, the coroner had to instruct them not to bring more than seven members of their legal team into the court, and we had Reading borough council and the NHS trust’s legal team up against us. Actually, balancing might mean reducing the amount of money that public bodies spend.
May I say one more thing, if this really is the last question, because I know we both want to say it? Something else that absolutely needs to happen, whether as part of the Hillsborough law or something separate, is that there must be some kind of national oversight mechanism to make sure that the recommendations that come out of inquests and inquiries are acted upon. As I said, it is two years today since my sister’s inquest, and it speaks volumes that I am still battling, frankly, just to try to prevent future deaths and to get Ofsted to do what it is necessary to make its school inspection system safe. I should not have to do that, There ought to be some independent objective body that makes sure that those recommendations happen, so that it does not happen again.
Maria Eagle (Liverpool Garston) (Lab)
Q
Deborah Coles: If I am answering the right question, it should reduce the number of state lawyers that turn up to inquests and ensure a more equal playing field. I have two quick things that I want to say. First, it is quite shameful that successive Governments cannot tell us the cost to the public purse of state lawyers rocking up to inquests across the country. That information is not there and it should be. This Government have made a commitment to try to make sure that such information is made available.
If we are talking about parity and proportionality, there needs to be proper monitoring of why a public body has sent a lawyer to an inquest process. They should be there to assist the uncovering of the truth and the process, but in my experience, too often teams of lawyers from different state bodies turn up at the inquest and work together, or if they do not work together, they try to pass the buck to each other. The time at which you see them at their most active and animated is at the point at which the coroner is going to decide questions that may be left to an inquest jury.
Inquest juries play a very vital role at inquest, I should point out, because they can report on narrative conclusions around systemic failings that they have heard about through the evidence that has come out through the inquest. You see these lawyers standing up arguing with the coroner about what questions should be left to the jury and trying to minimise any criticism of their particular public body. Importantly, they try and persuade the coroner not to make a prevention of future deaths report, which of course can be so important in trying to stop similar deaths happening in the future. Hopefully, we will see a change in that culture of just sending lawyers, period, to inquests.
Professor Waters: I can see you are going to try and stop this, but—
The Chair
I do apologise. It is a pretty strict timetable, but I do appreciate your coming in today. It is a matter of sensitivity and I am trying to give as many people as possible the opportunity to express their views and ask questions. Thank you very much for your attendance, Professor Waters and Ms Coles.
Tessa Munt
On a point of order, Mr Dowd. Is it possible that we can ask witnesses who might have something to add if they can write to you as Chair?
The Chair
I think that is automatic. Just let me chair the meeting.
Examination of Witness
Lord Evans of Weardale gave evidence.
The Chair
We will now hear from Lord Evans of Weardale. We have till 2.45 for this panel. Will the witness briefly introduce himself for the record, please?
Lord Evans of Weardale: My name is Jonathan Evans, Lord Evans of Weardale. I might be able to help the Committee because of two previous roles that I held: first, as a former head of the Security Service MI5, and secondly, as chair of the Committee on Standards in Public Life, which is the independent cross-party Committee that looks at the ethics and standards systems operating across the public service.
Dr Mullan
Q
Lord Evans of Weardale: First, I should make it clear that I am a strong supporter of this Bill. I think it is very timely. It is clear that victims, members of the public, have been badly let down by public authorities over a number of years. I gave evidence to the infected blood inquiry. It is very clear that something needs to be done and I support the Bill. I support the inclusion of the intelligence services in the Bill and strongly support chapter 2, which I hope we will be able to get on to.
There is as much need for the intelligence services to be accountable as there is for any other public authority. It seems to me right that they should be included in the scope of this Bill. I also recognise that there are particular circumstances that mean that the mechanism for achieving accountability and candour might need to be different. Certainly from my previous role heading the service, there are two areas that I think are of potential concern. The first and most important area is that members of the service are under existing legal constraints on what they can say. It needs to be clear how they would be able to cope with this duty of candour, which will be set against their other existing legal duty of protecting information and handling sensitive information appropriately. That needs to be resolved, and I believe that the mechanism laid out in the Bill resolves it acceptably.
This is not about institutional defence of the agency or its reputation. The sort of information we are talking about is such that, for instance, its disclosure could identify a human source, which could lead to their exposure and potentially their death in the worst circumstances. It could also be information we have about an enemy or threat to the UK, whether that be a terrorist or foreign state, and if that state or terrorist group knew that we had the information, they could probably work out where we got it from. They would then be able to take steps to stop us from obtaining it in future, which would mean that we were less able to protect the country against foreign intelligence activity or terrorist planning, and therefore the ability of the agency to safeguard the country would be reduced. That is what you are trying to protect.
You have already cited my second point, which I acknowledge but do not see as the key point, and it is that any individual desk officer in MI5—I think this would probably be the same in MI6 or GCHQ—may see a very small part of a picture, but, particularly for very sensitive information, the need-to-know procedures are in place. They will not necessarily understand why a particular piece of information is very sensitive, or actually what the bigger picture is.
Bilaterally providing that information between an individual and an external scrutiny body brings two problems. First, the external scrutinising body may not be equipped to handle highly sensitive information, and therefore it might go astray, even with good will. Secondly, it is important that the overall understanding of the agency is disclosed to the investigating body, not just one picture or one part of it. That is why I think it makes sense for the responsibility to rest on the head of the agency.
I also looked with great interest to see what pressure there was on the head of the agency to respond to this. The fact that in certain circumstances there is a criminal liability on the head of the agency struck me as being quite a strong measure, and a measure that is appropriate in the circumstances.
Dr Mullan
Q
Lord Evans of Weardale: Your use of the word culture strikes me as being very important. We all know that you can have loads and loads of rules, but if you have a culture that says, “Actually, we don’t really mind about that,” they will not necessarily work. Therefore, ensuring that an organisation is actually educated in its ethical responsibilities seems to me to be critical.
I know from the time that I was in the Security Service that quite a lot of work was done on this, and I believe that the same now applies in the other intelligence agencies. Any intelligence service has the potential to abuse the powers entrusted to it by Parliament or Government, and it is very important that there are constraints on that; part of that is people understanding their ethical responsibilities and the fact that there are really effective speak-up channels, so that, if somebody has a concern, it can be voiced safely and people feel they have permission to raise concerns.
Ian Byrne (Liverpool West Derby) (Lab)
Q
Lord Evans of Weardale: I understand why you have that concern. As is often the case in these difficult cases, we have two competing public goods. As a country, we benefit from having an intelligence community that can keep us safe; we need to protect that and ensure, therefore, that the agency is not hampered in doing its job. In my previous answer, I tried to explain why I would have, and continue to have, concerns about that being done on a bilateral, immediate basis, without the agency itself being aware of the disclosure. That could be one model, but I do not think it is the right way to do it.
Of the three agencies, I am most familiar with MI5. How accountability works there is that individual agents, as you put it—officers, we would say—do give evidence. If you look at the courts, even though not all the material can be presented in open court, closed material procedures are in place in the courts.
The Chair
Order. Ian, come back with another question if you wish to, but let the witness finish.
Lord Evans of Weardale: Individual officers do give evidence. If you look, for example, at what is being done at the moment in respect of the case that you will be hearing about later—the Agent X case, as I think it is known—it is being investigated by the Investigatory Powers Tribunal, which has been completely clear that the service has a duty of candour in that context. I do not believe that the agency is trying to avoid frank and open accountability; I believe that it is trying to square that with the other constraints under which it operates, because of the sensitive nature of almost all the operation information that the service is using.
That is the dilemma, but I recognise that it is a dilemma. You can take different views, but I think you have to give due weight to ensuring safeguarding—not safeguarding the service because of reputation; we should not have a law that does that. What we need is a law that enables the full story to be disclosed, but in a way that allows the agencies to continue to undertake their public functions, and that is compatible with the other legal constraints with which members of the services operate.
Seamus Logan (Aberdeenshire North and Moray East) (SNP)
Q
Lord Evans of Weardale: I would want to see the exact mechanism, but I do not think it is inconceivable that there could be a way of doing something of that sort, which in broad terms is similar to what is done with closed material proceedings in the civil courts. In order for a court to make a just decision, it needs to have access to the relevant information, even if that is sometimes highly sensitive. The closed material procedures ensure that such information can be brought forward and considered by the judge without its being visible to terrorist sympathisers, for instance, or Russian intelligence officers.
Closed proceedings can work. In some ways, they are sub-optimal because you have to work quite hard to give people confidence that they are really getting at the truth for the public. The ultimate safeguard for that is the fact that the judge is in control of their own court; if they do not believe that justice is being done, they can make that very clear. Over the years, those closed material procedures have been refined and slimmed down in such a way that they are quite widely accepted to be part of a proper justice system while protecting the sensitive information at hand.
Maria Eagle
Q
Lord Evans of Weardale: My understanding is that the responsibility rests on the agency, rather than any one individual, to proactively provide the information, although the liability on the head of the agency includes criminal liability, should they fail to do that.
Maria Eagle
Q
Lord Evans of Weardale: Command responsibility?
Maria Eagle
Yes—so that whoever is in charge actually bears the legal liability for any failings that are discovered.
Lord Evans of Weardale: I am always rather cautious of answering quasi-legal questions on the hoof, because I am not a lawyer.
Maria Eagle
It would be perfectly reasonable for you to write to the Committee with a more considered response.
Lord Evans of Weardale: I will look at the possibility of doing that. Again, I would have to talk to lawyers; I am not sure that I am the best source of legal advice to you. I have talked about exactly the same question a little bit with some of my previous colleagues, and the view from that, which I think has some weight, is that the director of the agency has personal criminal liability if they fail in their duty on this. I do not think you should see this as a carve-out for the agencies.
The Chair
Fine. I just want to hear what the witness has to say without any interruptions halfway through, but I am more than happy to be flexible.
Ian Byrne
Q
Lord Evans of Weardale: I do not think the Bill, as presented, poses a threat to national security. May I say one thing about chapter 2?
The Chair
Regrettably, we have one minute tops.
Lord Evans of Weardale: Chapter 2 requires public authorities to promote and maintain ethical standards as a statutory requirement, which I think is a really significant development. When I was chair of the Committee on Standards in Public Life, we did a report that looked at best practice within public agencies on ethical issues. There are many bits of the public service where there is virtually no induction into the ethical requirements of the job, and no serious leadership on these issues by the leaders of those organisations. In my view, and the view of the CSPL, that is a very big gap. I strongly welcome putting a duty on those who lead public organisations to promote and maintain the ethical health of those organisations, not just the delivery of whatever their role is. That is an important element of this and I welcome it.
The Chair
Thank you very much for your evidence. That brings us to the end of the time allotted for the Committee to ask questions, so I thank the witness on behalf of the Committee.
Examination of Witnesses
Jenni Hicks and Hilda Hammond gave evidence.
The Chair
We will now hear oral evidence from Hilda Hammond and Jenni Hicks from the Hillsborough families. We have until 3.10 pm for this panel. Thanks for coming to give evidence to the Committee. Will you tell us who you are, please, for the record?
Jenni Hicks: Good afternoon, everybody, and apologies for the delay. There was a blockage on the line and our train was delayed for over an hour and a half, so apologies to everybody in the room. It is a privilege to be invited here for you to hear what I have to say. My name is Jenni Hicks. I lost my daughters Sarah, who was 19 years old, and Victoria, who was 15 years old, in the Hillsborough disaster. They were both unlawfully killed.
Hilda Hammond: Jenni has thanked you all for being patient with us. I am Hilda Hammond, widow of the late Philip Hammond, who was chair of the Hillsborough Family Support Group. We lost our son at 14 years of age at Hillsborough. He went with the Boys’ Brigade.
Dr Mullan
Q
Jenni Hicks: What we did go through was that we did not get our truth for 24 years, which is cruel and unacceptable. That has to change. We had many, many challenges in that journey. The main challenge of all—on a personal level—was becoming childless, and all the grief and things that go with that. On top of that we then had a fight just to get the truth about how our daughters, Trevor’s and my daughters, died.
Obviously there was a huge state cover-up. There were lies and corruption going on, with horrendous and untrue things in the media. The Liverpool fans were wrongly blamed—and we are Liverpool fans, so not only were we bereaved, but we felt we were somehow at fault for our daughters’ deaths, too. The whole thing was horrendous. It actually prevents you from moving forward with your grief because it becomes about the event, and not so much about your loss. You have to deal with your loss at a later stage. The whole thing was absolutely cruel—I really have no words to describe how awful it was, and it must not happen to other people in the future.
We had, as I say, various challenges on our journey for the truth. The Peter Taylor inquiry was the first one. Peter Taylor did get to the truth, but the Crown Prosecution Service did not act upon that. If the CPS had acted on the Taylor inquiry, we could have got to our truth more quickly. Various things happened—is this the kind of thing you want to know? We had a judicial review. You probably know the whole of the things that we went through. To be quite truthful, we tried everything, including a private prosecution, but we seemed to be snookered every inch of the way.
The one thing that did get us our truth was the Hillsborough independent panel, the independent panel and the attorneys following up on its results—they were absolutely marvellous, actually. That was down to Lord Michael Wills and Gordon Brown, and to Theresa May, who carried on with that when the Conservative Government came in. If it had not been for those people, we would still have been looking for our truth. The Hillsborough independent panel findings led to Dominic Grieve quashing the original inquest verdict of accidental death and announcing a new inquest, which of course, finally—after 26 years, would you believe it—meant we got the correct inquest verdict of unlawful killing.
I am trying to précis this down, because I know we do not have a lot of time, but that is basically a very quick version of what went on, but to me, it was the Hillsborough independent panel. I have read through the Bill and things, but I would like to see the public advocate team that we have now used in a similar way, to be able to retrieve the documentation that you need. If we had been able to do that at a far earlier stage, we would not have had to wait 26 years for the correct inquest verdict. I really do think that the public advocate team should have powers similar to those of the HIP—or the same as the panel had. In the first instance, they should not just be about tea and sympathy and pointing you in the right direction; they should be about more than that. It should be about being able to retrieve the documentation needed, particularly if there are lies being told and it is a state cover-up. We need that documentation far sooner.
For me, with my personal experiences, without that we will still have long delays. Yes, it will be good to have a better duty of candour, a duty of candour with consequences, and obviously I think we should have more a duty of conduct, rather than just a code of conduct. That would make a huge difference as well. They should be statutory duties, not just codes of conduct, which is just people making up their own rules as they go along, I think. Those are my feelings on it and that is what I would really like to see. I also think it is important to implement Pete Weatherby’s important amendments to the Bill. They should be implemented straight away, to be quite honest with you.
The other question I would like to ask—I have written it down, so that I do not forget—is this: are we going to have funding for inquests and for whatever families there are? I would like a little more detail on how that is going to work for families, please, if someone could help me with that. It has not been made clear. It was just said that we will now be able to have legal aid, but I am not quite sure how that is going to work, because what about in split families? By the time my ex-husband and I got to our first inquest, we were already on the road to divorce—we had split up. Would we both be able to have equal representation?
Alex Davies-Jones
I will write to you too, Jenni.
Jenni Hicks: Sorry, I am so aware that I only have 10 minutes.
The Chair
No, not at all—do not be sorry at all about it. We want to listen to what you have to say, and the Minister will be questioned in due course about some of the very issues that you and lots of other people have raised. Thank you for that outline; that is really helpful to the Committee.
Natasha Irons (Croydon East) (Lab)
Q
Jenni Hicks: What would be successful to me is getting to the truth more quickly and having a system that does not think it has the right to cover up the people in power, that tells the truth in the first instance, and has a good public advocacy team—I nearly called them the HIP—who help people not only by pointing them in the right direction, but help them get the information that they need and the documentation of that information, just as HIP did. That is imperative.
There are other good things, but you are totally depending on a culture change for the duty of candour, because this culture has been going on for a long time. That is why it has to be duty of candour with really stiff penalties if you are found out to be lying, not just excuses made or clever lawyers being able to interpret it in a different way. There are many versions of the truth out there, and the documentation is the truth, if you like. For me, that is what would be successful.
It would be successful if nobody else in this country had to wait 26 years to get a correct inquest verdict or 24 years to get the truth about how their loved one died, and nobody else had to go through being lied to for all those years about how their loved one died. The mud that the media put out there about what had happened still sticks in some places in this country. That will not help me, Hilda or any of the Hillsborough families, but it certainly will prevent anybody else going through what we have had to go through. That process is cruel; it is not right, and this country should be ashamed of putting bereaved people through it when the truth is as plain as the nose on your face.
Seamus Logan
Q
Hilda Hammond: I would have liked to see the NHS included. I know people have a duty of candour, but I am a retired nurse, so I know the NHS, and at the present time doctors and NHS workers—I will not say they hide behind it—are protected by the law of patient confidentiality. I may be missing it, but I cannot see anything in the Bill that addresses that and makes it clear that in something like this patient confidentiality should not stand in the way. It is a big hurdle, because doctors have been bound by it for years and years, and I do not know how you get around that. The NHS is a huge organisation, and it will be subject to huge amounts of litigation. That is one thing that really needs to be addressed.
We did not find out that Philip had gone to hospital—we did not know—until the following November, when his trainers came back with a hospital tag on. When we questioned them, they were all evasive and gave silly excuses. I said, “Well, did you attempt to resuscitate him?”, and they said, “Oh yes, he had electrode marks on him.” When I spoke to the pathologist, I said, “If a person is being resuscitated, someone puts the electrodes on, someone is getting IV access and someone is protecting their airway. You said there were no puncture marks on Philip.” Do you know what he told me? He said, “I don’t know whether you know this, but there is a cannula now that they put in and it doesn’t leave a mark.” Pure rubbish! Even on neonates you see where they have had the cannulas.
I do not know. Trying to get any information from the medical team is like a brick wall, isn’t it? I really think that is an important part of this law. It is such a good law, and you would not want it to fall at the hurdle of doctor’s being protected from telling the truth.
Maria Eagle
Q
Jenni Hicks: A double apology.
Maria Eagle
A double apology, indeed. To what extent do you think the Bill would benefit from having some provisions, if they could be fitted into order, about empowering independent panels to do that kind of job?
Jenni Hicks: I strongly feel that it is necessary. I have thought very long and hard about, “What was it that made a difference? What made a difference in your journey?” We tried everything, as you know, Maria, and as Ian knows. We wanted not only the truth about our loved ones but to stop the lies that were being told about the fans. It was a double whammy, if you like: we could not get the truth about our loved ones who had died, and the supporters were wrongly being blamed. We were hitting brick walls everywhere we turned.
There was scrutiny and numerous inquiries, but everywhere they came back with the same lies and the same cover-up story. The only thing that stopped that was the Hillsborough independent panel, which showed the power of being able to retrieve the documentation. I was looking through all the documentation, including Bishop James Jones’s 25 points of learning, and point 3 says that you need to have
“full disclosure of relevant documents, material and facts”.
You have to have those quickly, because without them it is going to take longer.
When you think about it, it would save money too. The public—the taxpayers of this country—are paying for all of these inquiries and all this scrutiny. I would love to know just how much the Hillsborough journey up to HIP cost; I bet you it was an awful lot of money. And the taxpayer was paying for that. Something like the public advocate, with similar or the same powers to get the documentation as the Hillsborough panel, would save money too. It would be a cost-saving exercise.
Yes, with all of Pete Weatherby’s amendments—all the good things he has suggested—it would be a good Bill, but we need the back-up of something like the independent panel to help to strengthen it. I really do believe in that. Sorry if I am going on about it—
Maria Eagle
No, don’t worry.
Jenni Hicks: I know from experience and my journey that it was the thing that worked. It just worked. What worked was being able to read the documents. When Bishop James Jones made his report, he pointed it out in his 25 points of learning. It is right at the top: being able to retrieve the documents.
When it comes to this culture change, sometimes they think they are not actually lying; they are just not telling the truth. I have not quite worked out what the difference between those two things is. I have tried to analyse it—lawyers are very good at that. That has to be part of it to strengthen the Bill and make it the best it can be.
With all Pete Weatherby’s hard work—I thank everybody who has worked so hard to get this as good as it is—the Bill is good, but adding the public advocate to it, with the power of being able to retrieve the documentation, would really strengthen it. That would help to fill the gap until the culture changes. The culture is not going to change straight away; it is possibly going to take years, because it has gone on for so long. There are people like the veterans of nuclear testing—their concerns go back to the 1950s. This has gone on for a very long time. It is not a new thing.
We desperately need that change to strengthen the Bill. It is already good, particularly if you implement Pete Weatherby’s most recent amendments, but this would make it watertight. It would certainly make people in power think twice about covering things up if they knew that they would have to show the documentation.
The Chair
We have only a couple of minutes left, I am afraid.
Jenni Hicks: Sorry—that is why I have been trying to speak quickly.
The Chair
Q
Hilda Hammond: I want to support Jenni’s view. The reason we got the private prosecution was that, as Maria will tell you, Jack Straw released some of the statements. They were not the full statements, but the reason we got enough evidence to have three High Court judges in London say we had a case for them to answer was down to Ann Adlington, a solicitor for the city council, and Alun Jones, but primarily my husband Philip. He used to stay up all night scrolling through those statements and finding one word that had been changed. It cost us our family life. Philip was eat, sleep, and then, honestly, Hillsborough came before anything else, and rightly so. People should not have to do that. This is exactly what we mean. If we have a panel that will do that, it will stop all that. We lost years and years of our family life.
Jenni Hicks: We should have a facility, as I say, like the public advocate. You should not have to do that as a bereaved parent, trailing through statements and things to find your own truth—that should be there. That is a right of a bereaved person.
The Chair
Thank you very much for your contribution. We have listened to everything you said and it really has been invaluable.
Jenni Hicks: Can I just say that you have still not answered my question on legal aid?
The Chair
Thank you for the time you have taken to speak to us. I hope your journey home is better than it was on the way down.
Hilda Hammond: So do I!
Jenni Hicks: And so do I! Thank you for listening; thank you everybody.
The Chair
That brings us to the end of time allotted for that panel.
Examination of Witness
Edward Daffarn gave evidence.
The Chair
We will now hear evidence from Grenfell United. We have until 3.30 pm for this panel. Will the witness please introduce himself?
Edward Daffarn: My name is Edward Daffarn. I was a resident of Grenfell Tower for 16 years prior to the fire. I was involved with writing a blog called the Grenfell Action Group that tried to highlight some of the failings of our landlord—the tenant management organisation—and the lack of scrutiny by the Royal Borough of Kensington and Chelsea. Subsequent to the fire, I have been a committee member of Grenfell United.
Dr Mullan
Q
Edward Daffarn: Ordinarily, I find it much easier to respond to questions, but in this instance I made some notes that I would like to try to communicate to you. It could go wrong and I might have to ask you to ask me questions.
The thing with Grenfell is that it is so complicated. There are so many tributaries and so many issues. I have spent a little bit of time trying to relate what happened to us at Grenfell to the Bill. I have broken it down into three parts. The first part is an introduction explaining why the Bill is so important and why it is relevant to Grenfell. A lot of the relevance to Grenfell is also relevant to all the other public inquiries and investigations that have taken place over the last 30 years—on Hillsborough, infected blood, the Manchester Arena. There are so many similarities, but I would like to spend three or four moments on each.
The second part is about the need for culture change within organisations, and how the Bill can assist that. The third part that I wanted to address is how the Bill can assist in getting to the truth in public inquiries. Please bear with me; if things go wrong I will let you know and ask you to ask me questions.
At the heart of what I believe is that we need this Act to be implemented without delay and not to be watered down. There is a statement by Bishop James Jones: “The patronising disposition of unaccountable power”. That was the title of his Hillsborough report. Those words are so powerful. They sum up exactly what our position was as bereaved people and as survivors after the Grenfell Tower fire—not only after the fire but in the way we had been treated beforehand. It was this total powerlessness against forces that we had no control over. I truly believe that this Bill can act almost as a silver bullet that could change all that. I will go into some of the reasons in a minute.
I want to talk a little bit about our public inquiry. At the beginning of the inquiry, Richard Millett, who at the time was a QC, asked all of the corporate core participants to take responsibility, tell the truth and help us to get to what we needed to know. At the end of the public inquiry, he said that the “merry-go-round of buck-passing” still played and that the melody was still being heard. That was after nearly five years of a public inquiry—the truth was not being heard.
In their closing statements to the public inquiry, the core participants gave evidence for two-and-a-half days. Again, Richard Millet stated that if everything the core participants said was true, not a single person was to blame for the Grenfell Tower fire. Imagine sitting in and listening to that evidence over all those years and then, at the end of it, not a single person had taken responsibility for what had happened to us. The inquiry concluded that the core participants were guilty of “systematic dishonesty”, which led to the totally avoidable deaths of 72 people. We need to use this Bill to make sure that nothing like that can ever happen again.
Grenfell United attended an inquest family day and left understanding that the families wanted three things. They want to stop public officers from lying and covering up when things go wrong. They want a duty to proactively assist and disclose information to public inquiries. They also want parity of arms—true proportionality in representation in terms of legal aid in front of public inquiries.
How would the Bill address those changes? Obviously, there is the duty of candour, transparency and frankness, a duty to go further than not telling lies, but to proactively assist in getting to the truth in public inquiries, and to change the culture of public authorities and the public officers within those authorities to instil a code of conduct, ethics and values. That is my first part—that is how I would like us to understand why the Bill is so important.
I want to talk a little about changing the culture inside these organisations. Again, I go back to what Bishop James Jones said: we need to dismantle the patronising disposition of unaccountable power that these organisations feel entitled to exhibit. The Royal Borough of Kensington and Chelsea’s tenant management organisation, which was our landlord, behaved like a mini mafia. It was a non-functioning organisation that bullied and intimidated residents. Anyone who put their head above the parapet was targeted.
The Royal Borough of Kensington and Chelsea, whose duty it was to monitor and ensure that the TMO behaved in a proper way, failed completely in its duty to do that. As a result, as residents, as leaseholders, we were not treated with respect, and we were not treated with dignity. It is interesting to think about those words—respect and dignity—alongside the duty of candour. People need to be treated in that way.
Along with the duty of public authorities, and public officers, to tell the truth, and on candour, transparency and frankness, we also need to look very carefully at their duty to instil a code of conduct and ethics, which must be signed up to by the organisations. I am a social worker. Every year, I have to renew my commitment to our code of conduct and ethics. When I was engaging with the Royal Borough of Kensington and Chelsea and its officers and councillors, I was amazed at their complete lack of understanding of their role as public servants. As a social worker, if someone does not want to work with me, I have to find it inside myself to provide exactly the same service to them as to someone who does want to work with me. There can be no discrimination. At the Royal Borough of Kensington and Chelsea, if we challenged them in any way, they would come after us, as individuals.
I used to feel that as a lowly social worker I understood my role as a public servant; the leader of the council at the Royal Borough of Kensington and Chelsea had no idea about those responsibilities. It is really important that, as part of this Bill, we instil a code of conduct and ethics that is meaningful, published and promoted, that is part of training, yearly appraisals and interview processes, and that is, possibly, monitored by the public advocate as well, to make sure that we try, somehow, to change the culture inside these organisations. It is not a silver bullet, because social workers have values and ethics, and things go wrong in social work. Ofsted has values and ethics and, as we heard previously, things go very wrong in Ofsted. It is not a silver bullet, but it is really important.
In terms of criminal sanctions, there must be some bite behind these duties. The other thing with criminal sanctions is that cover-ups normally happen from the top down and not from the bottom up. If junior members of staff are being bullied by senior staff members to tell lies and take part in a cover-up, a criminal sanction would allow them to refer to their legal obligations not to commit a criminal offence. It would give them a way out of that.
In the Grenfell Tower disaster, there were eight public bodies and 27 commercial organisations. We need to make sure that those commercial organisations, which were carrying out a public function, are also responsible for duty, candour and transparency, and that they also have to sign up to the code of ethics and values. We must ensure that they behave in the same way that the public authorities have to behave.
Finally, I want to turn to how the Bill can assist in public inquiries. I briefly mentioned the
“merry-go-round of buck-passing”—
which was still turning: after all the evidence was given by the core participants, there was no one to blame for the fire. As bereaved and survivors, many of us attended the public inquiry and sat through months and months of this evidence. Very naively, I think we always believed that the public inquiry was the one thing that would give us the truth and allow us to leave with an understanding of why 72 people died. I always thought, “Well, these people will come and the truth will give us what we want, and it will set them free.” There were probably 200 witnesses who appeared at the public inquiry, and I can count on the fingers of one hand how many turned up and gave evidence from their heart.
I sent some evidence to you—a seven-minute tape from the public inquiry, put together by Forensic Architecture, of public officials basically just saying, “I can’t remember. I can’t recall.” We had Robert Black, who was the chief executive of the TMO, responding to a question from Richard Millett, the QC of the public inquiry, by saying, “Pass”—like he was on “Mastermind”, like this was some sort of quiz that he could take part in or not take part in. I am sure you have seen Eric Pickles. Towards the end of the public inquiry, he advised Richard Millett that he should use his time very wisely, because Lord Pickles had other, more important, things to do with his time that day.
That is the kind of contempt and disrespect that we were treated with during the public inquiry, and I truly believe that the Bill forces public authorities to go beyond just telling the truth in public inquiries and that it forces them to provide more in-depth information. I think it would be really helpful if public inquiries and public officials were invited at an early stage to provide position statements about their organisation. That would do one of three things. It would help to speed up the public inquiry process, it would reduce the pain and suffering of families, because the process would not take as long, and it would reduce the cost on the public purse. I thought quite hard about those things, and I hope that I have managed to communicate them in a way that was not too quick and that was understandable.
Joe Powell (Kensington and Bayswater) (Lab)
Q
Edward Daffarn: There were two things that I wanted to say, and you have asked me questions about them both. At Grenfell we were amazingly lucky. From day one we were provided with legal assistance, which meant we could go out and get solicitors and QCs to help to represent us. Within about 48 hours, I was giving evidence to the Metropolitan police as part of its murder inquiry, and I was able to have a solicitor with me. But it was important that the solicitors that we had were able to totally embed themselves into the case and really commit themselves to what happened. The solicitors we had were human rights lawyers, so they had an expertise and an understanding of some of the issues that were most important to us.
Part of the reason that this is so important is that I spoke with some of the Hillsborough families quite early on after Grenfell, and I heard from them that at the beginning of their journey towards justice and in the first public inquiry they had to go out—it makes me upset to talk about it—and raise their own money to pay for their own legal advice. I remember how we were after Grenfell. It was so upsetting just trying to deal with the trauma of the bereavement and leaving our homes and our communities. The idea that we would then have to go out and fund legal aid is just so cruel and heartless. This really needs to be part of the Bill, so that that happens in a fair, transparent and equal way for people.
On the second part of the question that I would like to answer, there is a gaping hole in justice for people and victims that experience these kinds of disasters. There is a lack of a national oversight mechanism. I know it will probably not fit into this Bill, but we talked with Angela Rayner when she was shadow Secretary of State and when she was Secretary of State, and she informed us that we were pushing at an open door in terms of having a national oversight mechanism—an independent body that follows up on the recommendations made in public inquiries.
The Grenfell Tower public inquiry cost £171 million. It is the families, eight and a half years afterwards, who are having to try and hold the Government to account to implement those recommendations; and it is not just us. In every inquiry, the recommendations seem to be buried. It seems to be left to the families to chase them up, and there is no way that that can be right. At some point we need to address that. For me, if the Hillsborough law is what we have got in front of us today, a Grenfell law could be a national oversight mechanism that would ensure that no family ever has to go through what we have had to go through in the last eight and a half years to try and hold the Government to account.
The Chair
I am afraid this will be the last question, because we have only a couple of minutes left, regrettably.
James Asser (West Ham and Beckton) (Lab)
Q
Edward Daffarn: From very early on, our thoughts were that if Hillsborough is to mean anything, it is that we as Grenfell survivors are not having to make a generational battle out of what we are trying to fight for. And yet we are sitting here, eight and a half years after Grenfell, still fighting for justice. At its core, what this Bill says about candour, honesty, changing culture and criminal sanctions addresses Bishop James Jones’s razor-sharp comments about the imbalance of power. That is really important. If that imbalance of power can be addressed, then hopefully people in future will not have to suffer in the way that the Hillsborough families suffered and we suffered.
The Chair
Thank you for your evidence, Mr Daffarn. I am afraid that is the end of this panel. Thank you for taking the time to speak for us, and for your comments, observations and responses to questions.
Edward Daffarn: Thank you for letting me speak to you.
Examination of Witness
Chief Constable Craig Guildford gave evidence.
The Chair
Q
Chief Constable Guildford: Good afternoon, Chair. My name is Craig Guildford; I am the chief of West Midlands police, and I am talking to you from my office this afternoon. I am also the National Police Chiefs’ Council lead for complaints and misconduct, so hopefully I will be able to assist the Committee with its questioning further.
Dr Mullan
Q
Chief Constable Guildford: In terms of the broad structure around misconduct, we have the standards of professional behaviour, but when it comes to addressing the gaps, I think the criminal allegation side of things—particularly the misconduct in public office aspect—has had a number of reviews by the Law Commission over a long period, I think starting around 2015 or something like that, and various reports.
In the three main offences before the Committee this afternoon, I think we have some clear directions from lawmakers that send a very clear message to all public servants, but particularly police officers, about the consequences of their decision making. I think this complements a lot of the cultural change that has obviously occurred since the formulation of this Bill, which has been on the back of the Hillsborough disaster. If you think about how long ago that was and how far the police service has come since then, some of these elements before us really do help to embed and underline the fact that lawmakers have been very definite in their expectations of police officers. We have an internal code of conduct, which we hold officers to account for, but in terms of the more strategic gaps and the will of Parliament, this is very declaratory, in my opinion.
Dr Mullan
Q
Chief Constable Guildford: I understand. Its applicability is ubiquitous to every individual who works for the police service, and I think there are some clauses in the Bill that capture contractors as well, because, like many other public offices, we use contractors around healthcare, safer custody contracts, sessional workers and so on, so it captures those too.
I think the nub of your question really relates to what we already have internally in the police service. We have a codified code of ethics, which is applicable to everybody who works in the police service, from volunteers all the way through to chief constables—the code of conduct, which I referred to earlier, is applicable to all police officers, including special constables.
Our code of practice for ethical policing, which is a more recent development, that also includes reference to what I would describe as a duty to co-operate as a witness. So, we have already made some of those strides, but this legislation absolutely endorses that trajectory.
To answer the question about things from the top to the bottom, the decisions of the top are certainly scrutinised, and scrutinised very closely. In my professional opinion, the legislation as drafted, together with the existing measures in the code of ethics and the code of conduct, endorses a top-to-bottom approach, as well as a bottom-to-top approach, as you have alluded to.
Tessa Munt
Q
Chief Constable Guildford: You would have a number of opportunities to whistleblow as a police officer or a member of police staff. First and foremost, there are opportunities for you to make a disclosure to your line management. You could make a disclosure to another supervisor. You could also make a confidential disclosure, because each force has a confidential reporting mechanism. It is a reported line, and it is done anonymously.
On top of that, we brought in some measures recently that enable people to make a report via Crimestoppers. We also very actively encourage the reporting of any whistleblowing via all our staff associations—the trade unions on the side of police staff, and the Police Federation, the Police Superintendents’ Association and the Chief Police Officers’ Staff Association on the side of police officers.
Tessa Munt
Q
Chief Constable Guildford: That often depends on who makes the allegation and whether it is criminal or conduct related. If it is a criminal matter, it is reported to a police force or the IOPC. If any criminal or conduct matter is reported and it involves a chief constable, it goes to the IOPC under the law. If it is anybody below that level, it goes to the professional standards department in each of the police forces. It is then independently assessed, and given to an investigator, who is trained and accredited, and independent of the people who are complained about and the complainant.
Alex Davies-Jones
Q
Chief Constable Guildford: Having been consulted on the way through this, having thought about it quite considerably and having spoken to the director general of the IOPC, I think that the drafting at the moment is pitched at the right level, because it says that that harm needs to be of a serious nature. When it comes to setting out harm, it mentions phrases such as “departed significantly from”.
What will the impact of that be from my perspective? I think it will encourage leaders and individual officers to do the right thing. Initially, it may increase the likelihood that a narrative would be corrected earlier. Think back to some of the foundational pillars upon which this legislation rests, and a lot of the narrative that was, let us say, placed in the public domain around Hillsborough—and sometimes around other events where there is knowledge that is known to the police service and is able to be communicated, but which for whatever reason on occasions is not. Sometimes, in my opinion, that does not help with public confidence.
Going back to the question, I think this will encourage the clarification of issues at an earlier stage. But I suppose, on reflection, from a professional perspective, we have to balance some of that with an individual’s potential reluctance to say too much too early. Of course, the public quite rightly have an expectation that facts will be clarified and that information will be shared and placed in the public domain, and that is absolutely the right thing to do. That is the balancing act. It is important that it is pitched at the right level, which in my professional opinion it is. The “harm” is economic, physical or emotional, and I think it says it should be not inconsequential, which is important. On occasion—you will know this from your family perspective—we absolutely do get things wrong, but the legislation is designed to allow us to correct those things fairly expeditiously.
Mr Tom Morrison (Cheadle) (LD)
Q
Chief Constable Guildford: They obviously occur over a period of time. Certainly in my service—I have done over 30 years—they have come in the second half of my service, rather than the first. However, the way that we train them is very explicit: it is done on a values basis through initial training. We recruit and assess new candidates on the basis of values. We do recruit training, which in most forces happens over a period of 20 to 22 weeks, and recruits have a specific input on values-based decision making. We have something called the national decision model, which allows them to think about the consequences and the options they have in making their decisions.
The code of ethics absolutely underpins what we do. It sits in the middle of our decision-making circle. It is trained, really, from day one. I am trying to bring it to life a bit: this sits in the middle of all the specialist public order training, post Hillsborough, for commanders at public events, particularly football, and their accreditation and training. For all our bronze, silver and gold commanders, the code of ethics sits inside the wheel in which we make our decisions. To reinforce the point, the other aspect is that whenever there is a misconduct meeting or hearing for police officers, there is always reference to the code of ethics—the ethical behaviours that are expected of officers and staff.
The third bit of your question was about how we measure this. I would say that we measure it in three ways. The first is the training at the beginning. The second measure is around outcomes from our misconduct proceedings, as well as the proportionality of our misconduct proceedings and how they are used and referred to. The third measure —this is particularly important—is the measure of public opinion. As organisations, we respond to that, and we openly and candidly answer those questions.
In the consultation, we have gone through certain elements in relation to which we have said that, operationally, we may not express candour at certain times: for example, in a live situation in which we lawfully employed the services of, say, an undercover police officer or an undercover officer online; or in a live firearms operation, a live kidnap operation or a product contamination operation. In those cases we may seek to use a little bit of subterfuge to make sure we gain the lawful aim and the right public outcome for the victim at the end of it. Does that explain it?
Seamus Logan
Q
Chief Constable Guildford: I honestly think that what is proposed here complements what we have been doing over a period of years. This is not unexpected for the police service and it is not new for senior officers, but I think your point is a fair one in so far as these are new offences, and a particular number of people will be charged with investigating them. Those people will sit within the IOPC, the Independent Office for Police Conduct, and they will also sit mainly within each of the professional standards departments of each of the 43 police forces. Some additional training will be required, but I think it will be very marginal in initial recruit training, because it very much complements what we already teach with that package.
Seamus Logan
Q
Chief Constable Guildford: To be fair, that is a good question. My reflection, very much, is that we have the Independent Office for Police Conduct, which is completely and utterly independent of the police service, all the chief constables and all the staff associations. That would be the body that an individual—let us say an individual in my position, potentially—could approach, if I had one of those specific concerns. From a police service perspective, I would say that that possibly already exists, but for other members of the public sector, that might be a very legitimate point of reflection and a good point. I think there would be some opportunity and benefit for other members of the public sector, yes.
The Chair
Thank you. If Members have no other questions, I thank Chief Constable Guildford for his contribution.
Chief Constable Guildford: You are very welcome.
Examination of Witnesses
Chris Minnoch and Richard Miller gave evidence.
The Chair
We will now hear oral evidence from the Law Society and the Legal Aid Practitioners Group. We have until 4.15 pm for this panel. I would appreciate it if witnesses briefly introduced themselves for the record, please.
Richard Miller: I am Richard Miller. I am the head of the justice team in the policy directorate at the Law Society of England and Wales.
Chris Minnoch: I am Chris Minnoch. I am the chief executive officer of the Legal Aid Practitioners Group. We are a membership group that represents practitioners across England and Wales who deliver legal aid services.
Dr Mullan
Q
Chris Minnoch: That one is squarely for Richard, I am afraid.
Richard Miller: In the past, families at inquests have been either unrepresented or represented by someone on legal aid or by pro bono services, perhaps against public bodies that have very little in the way of limits on the legal representation that they can provide. One of the aims of the Bill that we very much support is that there should be much more parity of arms. Now, parity does not necessarily mean absolutely equal representation on the two sides. It does not necessarily mean that, just because the public body has a King’s counsel representing them, the family must also have a King’s counsel. I do, however, think there is a question about whether, if there is a significant discrepancy, that indicates that the public body may not in fact be complying with its duty of candour.
In terms of the rights of individuals within the public bodies, if an individual has their own separate interest, they may need to be separately represented from the public body itself, but it is very important that we separate out where the public body has liability from where any individuals have liability. Generally speaking, in terms of what may follow by way of civil proceedings, it would be the body and not the individuals facing those consequences. It is the role of the public body that is most significant here, and we need to ensure that there is balance with the bereaved families.
Dr Mullan
Q
Richard Miller: The starting point would be the coroner, who will be a qualified lawyer and therefore very used to making assessments about what is necessarily and reasonably incurred by way of legal expense and legal work. They will be in as good a position as anybody to judge whether what the public body is doing is reasonable. It is a standard part of civil litigation that you have to justify your costs as necessary and reasonable, so it would not be a new requirement; it would just be a new forum within which that requirement was applying. The lawyers advising public bodies would already be well used to identifying what is necessary and reasonable in any given circumstance. Obviously, they will need to calibrate that advice in the light of this legislation, but it is not a new skill—it is a not new judgment that they will have to make. It is something that they already do.
Tessa Munt
Q
Chris Minnoch: That is not something I have necessarily prepared for, but I appreciate that it is an important point, so thank you for asking about it. For many years now, there has been a deficiency when it comes to employment cases, particularly since the removal of employment law from the scope of the legal aid scheme. As an organisation, it is important to legal aid lawyers and their clients—similarly, from the Law Society’s perspective, I am sure I would not be wrong in saying this—that people taking actions in the employment tribunal or facing proceedings as a result of whistleblowing have access to legal advice and representation. There is a certain element where people who benefit from union membership are partially protected by that or can have resources made available to them, but there is a gaping hole in the legal aid scheme at the moment around employment law and employment cases for employees. We would hope that the Government would consider filling that, because it is a very important point.
Tessa Munt
Thank you. I invite you to pass your comments to the Chair in writing at some point, if that is possible, because I do not have time to ask you about that in detail now, but I am very interested in your views.
Richard Miller: I fully agree with what Mr Minnoch has said on that point. The Law Society would also be very happy to provide more detailed views on this issue in due course.
Alex Davies-Jones
Q
Richard Miller: There are three areas that most need to be covered. First, what is the structure within which legal aid is delivered? We believe that the Bill does not go quite far enough here, in that it provides for legal help—the very lowest level of assistance—to families and it provides for advocacy. In most court proceedings, there is a middle level of legal representation that is provided. We think that level has benefits both for the Government and for the families concerned. For the Government, it provides greater control and greater quality control over the work. For the families—or, more to the point, for the firms representing the families—it means they are able to apply for payments on account in long-running cases, which is crucial to make this an economically viable expansion for firms.
You have to get the structure right in the first place. You then have to build up the capacity and you also have to make it attractive enough overall for lawyers who are not currently doing this work to want to come into it. Those are the three aspects that need to be addressed. Chris, do you want to expand on that a bit?
Chris Minnoch: Thank you, Richard. Minister, it is a very important question. I will start by saying how refreshing it is to come to a session such as this to talk about something positive in relation to the legal aid scheme—a positive expansion—after so many years of giving and submitting evidence to various Committees asking for these sorts of measures to be introduced. I give credit to the campaigning groups that have made this happen and to the Government for taking such a progressive step.
Richard is absolutely right that we have to see the expansion of legal aid in the context of the current civil legal aid system in particular, but you cannot dissociate that from the criminal legal aid system because there is an overlap between the two in terms of who is delivering the service. There are fundamental weaknesses in the sustainability and in the workforce, especially regarding recruitment and retention, that have been recognised by various recent Government-led reviews. There is lots of evidence there and I am sure that, as a Minister, you are fully aware of some of the challenges you face in trying to plug those.
Richard highlighted a really important point about the technical construction of the scheme. We are already in discussions, as is the Law Society, with the Ministry of Justice and the Legal Aid Agency about how we can improve that structure to make the work as sustainable as possible, and as attractive as possible, both to existing providers and new providers.
There is a really critical element, however, which was raised earlier today in some of the evidence that I heard, about which types of lawyers are best placed to deliver these services. Despite the challenges that the legal aid scheme has faced, particularly in the last 15 years or so, we are really lucky to have a core of incredibly experienced and expert lawyers who carry out this sort of work. Our advice to the Government would be to start there and then look to expand the capacity of those lawyers.
There is an issue around capacity, because inquest work takes such an emotional toll on the lawyers involved. There are elements of vicarious trauma that are involved in these sorts of cases, so it is very difficult for your entire caseload to be inquest work for 100% of your time. There are some natural capacity issues built in, even for lawyers doing that work currently, but those are the organisations—I think one of the earlier witnesses described them as human rights lawyers—where we need to start building up their capacity by making the system as attractive as possible, so that they themselves can recruit and develop the lawyers who can expand this work.
We are also already in talks with the Legal Aid Agency about separating out inquest work from the current categories of legal aid, so it is a separate category of legal aid with its own separate supervisor standards and its own separate accreditation process—those sorts of things. Richard, you might want to address the kind of training, development and accreditation issues arising from that.
Richard Miller: Indeed, yes. We are already having initial discussions with the Legal Aid Agency about what training might be required and whether accreditation would also be worthwhile in this area. The Law Society is well positioned to deliver training at scale, as would be needed here. One thing that we would like to explore is whether there is scope for Government assistance with the cost of that training to ensure that we can get the initial boost to capacity that will be urgently required.
On the question of accreditation, at the moment our preference is not to go that far, because we must be careful not to establish too many barriers to getting that expansion in place first. Down the line, it might be that accreditation would be worthwhile, but initially I think we need to make sure that the training is there and that lawyers are aware of their obligation not to deliver work beyond their competence. That should get the expansion of capacity that we need in the short term that we can then build on.
Alex Davies-Jones
Q
Richard Miller: That is why we need to be starting those discussions right now, and we are. It is very difficult—it is a bit chicken and egg—because until the work is there, lawyers might not see that now is the time to incur the cost of developing plans to expand into the area. We need to get the legislation in place and be very clear as to when it is coming in, in order for the lawyers to be able to prepare for it.
We can never be absolutely certain, but with a combination of what we are starting to do already and building on the experience of the lawyers who are already working in this field, some of whom have said to us that they believe they can expand fairly quickly to mop up at least some of the additional demand, we can probably get to a tolerable position. It is going to involve work over a prolonged period of time to continue to build capacity, but delaying implementation simply does not help us to address the problem.
Chris Minnoch: To add to that, one of the difficulties with delaying implementation is that—this may come out in a later question from the Committee—the lawyers have a very important role to play in supporting bereaved families at inquests, but they also have a very important role in supporting the inquest itself and the coroner. They will probably play an important role in enabling or assisting the coroner to make determinations around the reasonableness and proportionality of public authority representation. You have heard already today about the extraordinary difficulties that unrepresented bereaved families face in accessing the information they need before the inquest proceedings or an inquiry begins, and that is another role the lawyers can play.
Delaying implementation on the basis of concerns about capacity might actually undermine some of the other elements of the Bill that are central to making it work and to the creation of the culture change that we have heard victims and bereaved families speak about so eloquently.
Douglas McAllister (West Dunbartonshire) (Lab)
Q
Secondly, if a public authority has a team of, for instance, one senior and two juniors, why should a bereaved family be represented by perhaps only one junior counsel? That really would not be parity of arms. The Bill talks about members of bereaved families, but how many members of that family are we talking about? Is it one specific next of kin? We heard evidence earlier from a witness who talked about a divorcing couple. Would they both be granted legal aid?
Chris Minnoch: On your first question, there is an issue around non-means-tested legal aid becoming available and so the case coming into scope at that stage, at the point at which the public authority is appointed as an interested party. Some of our members have expressed concerns that the appointment—the actual point at which an authority becomes an interested party—might be quite late in the process. It could be not when the inquest is opened, but perhaps closer to when the proceedings commence. An awful lot of work needs to be done in the intervening period, and that can last a long time. We are already talking to the Ministry of Justice about whether, although that is currently written into the Bill, it is the best way to determine the point at which non-means-tested legal aid is made available.
Of course, there are other situations in which means-tested legal aid will be made available, particularly when more than one family is involved who want representation, or at least preparation for the inquest rather than the advocacy itself.
At the moment, there is not a cap in respect of the preparation and advocacy aspects of work on inquest cases. That is probably right, because the system is already over-bureaucratic and underpaid. The creation of a cap, or people having to extend the level of legal aid they can access at different points in time in an inquest process, is just going to act as another barrier to ensuring adequate representation.
Parity is a really difficult question. I have been speaking about this to our members who are inquest specialists. One of the points they made, which was slightly surprising to me—I think Richard alluded to this earlier—was that they do not necessarily see parity as being about the number or seniority of the lawyers that represent either side in the inquisitorial process. Because of the completely different role that a bereaved family have in an inquest—as opposed to a public authority—it is probably understandable in many circumstances why a public authority might have a bigger legal team. If the duty of candour works in practice, and if public authorities genuinely want to assist the coroner to carry out their investigations, they may need a larger legal team to assist them properly. I would not say it is as simple as just numbers and seniority.
To build on one of the points mentioned earlier, the reasonableness and proportionality of legal representation will be linked to conduct, to a degree. The assessment by the coroner of whether the public authority’s level of representation is proportionate will very much flow from whether the coroner believes the public authority is acting and following their duty of candour and their duty to assist the investigation, and is being open, frank and transparent. If they are, there will be few concerns about their level of legal representation, but if they are not, there will be big concerns about their level of legal representation, because that will be seen as a mechanism to block rather than comply with their duties. Does that make sense?
Douglas McAllister
Yes, it does. Thank you.
Richard Miller: I will add one point on the costs aspect. Firms will not be given a blank cheque here; they know that when they submit their bill of costs to the Legal Aid Agency, it will be very closely scrutinised. Any costs that the Legal Aid Agency considers were not necessarily and reasonably incurred will be disallowed, and firms know they will be subject to that level of scrutiny when they undertake work, so they are, by definition, very cautious about what work they do. They do not want to do a whole load of work that they are not going to get paid for, so there is a very significant control of the costs from that assessment by the Legal Aid Agency.
Over time, one of the things we will be able to learn is what sort of costs should be expected for this work, and once we know what the norms are, it may be possible to move to a system where there are stages or caps where people know, “This is the expected level of costs for that. If you’re going to exceed that, maybe you would need to get specific authority”, but we do not have that information at the outset. That will be something to develop in a number of years, once the evidence comes through.
Ian Byrne
Q
In a world where the Bill is passed into legislation in May, what would the timescale be for scaling up so we have parity of arms at inquests? What would be the timescale, and what would you need? I would like that on record.
Richard Miller: First, we need to get the structure for the legal aid administration resolved, and we need to have discussions with the Ministry and the Legal Aid Agency about what training is required, what can be provided and how quickly it can be developed. It might potentially be helpful if a plan could be published that sets out, “This is the plan for meeting the capacity requirements here”, and on which we and the Government and perhaps the Legal Aid Agency could all say, “Yep, we agree that is the route forward. That is the road map. Those are the milestones and timelines that we think we will need for it.” I do not think we are in a position today to be able to say, “Yep, this is the time that is required”, but I do not think it would take too much work to develop a plan that would help us understand what would be required and how quickly we could get there.
Chris Minnoch: I have some minor points to add. We will need an amendment to the Bill to fix those structural issues. The Bill, as currently drafted, is based on the existing funding model, which does not support sustainability and creates unnecessary complexity in the system. The way in which the funding mechanism works does not enable it to be completed in the same way as other areas of civil legal aid. The earlier those amendments are made and the Bill receives Royal Assent, the earlier current practitioners can make a conscious business decision to say, “Yes, this is an area in which we can take on more staff and start training them up, or divert resources from other areas into inquest work.”
One of our concerns is that this might mean that lawyers take on a higher proportion of inquest cases than they currently do, and one of the things I would like to see the Ministry of Justice actively thinking about is how you put mechanisms in place that support lawyers to do such complex and potentially harrowing cases. I think that is partly an issue for the Ministry of Justice, and partly an issue for the legal sector. The legal aid sector is not particularly good at looking after itself, given the nature of the cases it does. That is as much about having an adequate fee scheme and having the right levels of training and supervision in place to do that.
Maria Eagle
Q
Chris Minnoch: I have some initial thoughts. I have to say that I am speaking only on behalf of the lawyers who represent bereaved families; I cannot speak for lawyers who represent public authorities—I have no experience of that. We have already heard evidence today that the critical aspects of the Bill are those that will change the culture within public authorities. That is not going to happen overnight, because it is a cultural shift that is required, which will take some time, and because there are consequences for the individuals involved in those public authorities, based on what could come out of it.
What we want the legal aid provisions to do, including on parity of arms, is assist those broader duties to take place. I do not think that it is going to happen from day one, and nor does any lawyer I have spoken to who does inquest work. I do not think an inquest that takes place the day after the Bill receives Royal Assent will be an open and transparent process, as the Bill anticipates. For me, one of the key aspects of the legal aid elements is the ability of the lawyers, not just when the proceedings commence, but in the conduct of the parties leading up to the inquest, including the disclosure elements and the openness and willingness to reveal information to the bereaved family’s lawyers—that is the critical part for me to begin with.
The family’s lawyers can then assist the coroner in making an assessment of the conduct, and I think it is the conduct of the public authority that is key, when you are thinking about parity of arms. I made the point earlier that I do not think the bereaved family is going to be overly concerned about the number of lawyers on the other side, if those lawyers are actively assisting the inquest. If they are not, it is a much bigger issue.
Richard Miller: I think there are a couple of measures in the Bill that helpfully come together to try to encourage greater parity, including the duty of candour and the fact that the Ministry responsible for the public body is going to be asked to meet the legal costs of the bereaved family. They come together to put an onus on the public body and the Ministry responsible for it to be proportionate. If they create a situation where they are requiring the bereaved family’s lawyer to undertake a lot more work, they will ultimately have to meet the costs.
As Mr Minnoch says, it is not going to happen overnight; it is going to be a change that has effect over a number of years. But these are, I think, useful nudge factors in the right direction to get to the level of parity that we are trying to achieve here—
The Chair
Thank you. I am afraid that brings us to the end of the allotted time for the Committee to ask questions. On behalf of the Committee, I thank the witnesses for their evidence. I regret that I had to interrupt at the end. Thank you very much.
Examination of Witness
Judge Alexia Durran gave evidence.
The Chair
We will now hear oral evidence from the chief coroner of England and Wales. We have until 4.35 pm for this panel. Could the witness please briefly introduce herself for the record?
Judge Durran: I am Her Honour Alexia Durran, chief coroner of England and Wales. Before I am asked any questions, I wonder whether I might say a little about the prism through which my answers should be viewed.
I thank you very much for inviting me to give evidence today. I begin by saying that any concerns that I may raise, in answer to questions about the operational impacts of the proposed measures before you, are in no way intended to question the principles underlying the Bill. Those principles are important and, like my predecessors in the role of chief coroner, I am committed to ensuring that the experiences endured by the Hillsborough families in the aftermath of that tragedy and, indeed, the other families you have heard from and will hear from are never repeated.
The Bill seeks to strengthen the transparency, accountability and fairness in the justice system, and those aims are ones I fully support. A coroner hearing an inquest has to answer four statutory questions: who died, when, where and how? And families often tell coroners that the outcome they want from an inquest is that no other family suffer a loss in the circumstances in which they did. Plainly, the duty of candour proposed in the Bill can only help answer the important question of how. If the Bill becomes law, I will do all I can within my role to ensure that its implementation is as effective as possible.
With that comes my responsibility to draw to the Committee’s attention the practical concerns regarding how these proposals may affect the administration of justice in the coroner service. Those concerns relate not to the aims of the Bill, but to the potential operational consequences, which, if not addressed, could inadvertently create additional challenges for the delivery of timely and effective coronial investigations and inquests.
Any points of concern I may articulate on behalf of the coroner service and my office are, plainly, so that you can carefully consider them and explore any possible mitigations. My aim, I hope, this afternoon will be to assist you in ensuring that the Bill achieves its intended purpose, without unintended impacts on the functioning of the coroner service, which plays a critical role in serving bereaved families and maintaining public confidence in the justice system. I think it is important that we do not seek, as I do not seek in any answers I may give, to undermine in any way the intentions of the Bill.
Dr Mullan
Q
Judge Durran: There are a number of aspects. First is the provision of non-means-tested legal aid to bereaved families. That representation has to be available as soon as possible to enable families to participate throughout the inquest process. If the families are not represented at early stages, the coroner has to do one of two things—either delay any inquest procedures until the family are represented, or continue without family representation, which deprives them of their voice. Coroners are concerned about whether there are sufficient lawyers available to undertake this sort of work.
It is important to recognise the other side of that equation in relation to legal representation for public authorities. The criteria currently in clause 18 suggest what gives parity of arms. It is important to recognise that public authority lawyers are very often a great help to coroners. In cases where there are voluminous amounts of material, they help the coroner to put that material into paginated bundles and deal with redactions. If that practical help is taken away, the coroner and the coroner officers will have to take up that work, which would usually be done by others. That means that coroner officers are less able to engage with bereaved families and coroners themselves will have more work to do, which will inevitably impact the number of inquests that they can hear.
I am concerned about the suggestion that there should be an overriding objective to ensure that “affected persons”, which effectively means the family, are given greater ability than others to participate in inquests—if there is to be parity of arms, that means everybody. Although a coroner will always do their best, I hope, to facilitate the effective participation of a family, everyone should have equal rights in the objective of answering the four questions.
Dr Mullan
Q
Judge Durran: If you are making the coroner the judge of that, you are creating an additional burden on the coroner. It may be quite difficult for them to go about getting that information. I note that in clause 18 of the Bill as drafted there are three suggestions on how that might be considered. I would invite the Committee, in particular in relation to the importance of the issues under investigation, to look at the sort of things that might encourage the engagement of public authorities using lawyers. I might suggest complex legal principles, potential for a coroner to be invited to consider multiple conclusions, the arguable engagement of article 2, the potential for a prevention of future death report to have a national impact, and whether there are issues that might be important to the wider public interest. Those are the sorts of factors I would venture to suggest ought to be considered in assessing whether lawyers ought to be involved.
Dr Mullan
Q
Judge Durran: My anxiety is that you are creating an additional level of work that takes coroners away from being in court and dealing with inquests. The covid-19 pandemic increased the backlog in coroner’s courts, as it did in other courts. There are considerable backlogs; the weeks to inquest have increased from pre-pandemic levels, and cases over 12 months—a number of areas are struggling with very high numbers. If you then inject a further level of work for coroners, you will take them away from what they need to be doing: being in court, hearing inquests and giving families closure.
Dr Mullan
Q
Judge Durran: Every coroner is an independent judicial office holder. I can give guidance, but every case and every inquest will be fact-specific. One of my responsibilities as chief coroner of England and Wales is to provide leadership with the intention of promoting consistency among coroners. A considerable piece of work in achieving that objective was the “Chief Coroner’s Guidance for Coroners on the Bench”, which is a bench book—a “how to do it”. That has received a very favourable response for helping, I hope, to frame decision-making processes. It is a publication; although its intention is to assist coroners, it is a public-facing document and available for anyone who is an interested person.
Particularly—as I have emphasised at training, which is another of my responsibilities for coroners—bereaved families who are not represented in inquests should have access to that publication, because they can use that document to hold coroners to account in saying, “You are not following the Chief Coroner’s guidance, designed to promote consistency.” I am sad and disappointed that people may not have had a positive experience from an inquest, but we are, I believe, making considerable progress in promoting greater consistency.
Lizzi Collinge
Q
Judge Durran: There is certainly an impression that inquests are becoming more adversarial because lawyers seek to use them as some early form of litigation, with an eye to any consequential litigation down the line. My predecessor and I have done a lot to convey the message that an inquest is inquisitorial—it should not be adversarial. It is a summary hearing, not a surrogate public inquiry. Increasingly, I tell coroners about the existence of the advocate’s toolkits, which have been designed specifically with inquests in process. I have encouraged coroners that if lawyers are seeking to turn an inquest into a public inquiry, they should pause, look at the advocate’s toolkits, remind the lawyers to look at those and remind them of the nature of the proceedings, because it is not the correct forum to make those sort of arguments.
Lizzi Collinge
Q
Judge Durran: It is disappointing that the duty of candour has to be written into law. I hope that the Bill is a considerable step in the right direction, as a vehicle to enable a coroner, through conduct reports and compliance directions, to better get people to engage with the true intentions, which is to find out answers to the four questions and primarily how someone died. However, I cannot over-emphasise that the compliance directions and conduct reports add a burden to a strain that is already under strain and under-resourced.
Maria Eagle
Q
Judge Durran: I have a concern because, as I have said, a coroner has to answer four statutory questions. If an inquest engages article 2, the “how” becomes “in what circumstances”, but they are very narrow questions that should be answered. A coroner has to be very clear in answering those four questions in setting their scope—in setting the parameters of their investigation in answering those questions. There is very often a tension between what a coroner feels they need to hear to answer the statutory questions, and some wider questions that family may want answered. That remains a tension that I am not sure that this Bill is necessarily going to answer.
Maria Eagle
Q
Judge Durran: It is too binary to say that lawyers are good or lawyers are bad. Lawyers for the family will give them a better voice, will enable them to be better engaged, and will help families better understand some of the complexity of the evidence or decision making. On the other side of the question, I would be sad to see public authorities lose lawyers where there is a complexity to the evidence that needs to be explored; I think that better enables questions to be answered. It is too binary to say lawyers are good or lawyers are bad; everyone has to be working with the same objective, which regrettably does not always happen.
Tessa Munt
Q
Judge Durran: The Bill includes provisions that a coroner can write a conduct report. It is not clear to me at the moment what the mechanism will be for such a report and how they should be handled. At present, as I understand it, conduct reports raising concerns will be sent to the chief coroner, responses will be sent to the chief coroner, and the chief coroner will account for those within my annual report to the Lord Chancellor. What is not clear to me is the mechanism of how that will happen and whether the intention is, through regulation, to create mechanisms similar to prevention of future deaths reports.
It is important to say that I am not, nor should I be, a regulator. I am sure that many will say that publication of a report and publication of a response without any other mechanism will not achieve much. I am concerned about what those mechanisms are and whether they will fundamentally serve a purpose, or whether I will simply publish them and they will be there for people to see, but no meaningful action will be taken upon them.
The Chair
I am afraid that brings us to the end of the time allocated for the Committee to ask questions of you, so on behalf of the Committee, I thank our witness for her evidence.
Examination of Witness
Cindy Butts gave evidence.
The Chair
We will now hear oral evidence from the independent public advocate. We have until 4.55 pm for this panel. I would appreciate it if the witness could briefly introduce herself for the record.
Cindy Butts: Good afternoon, everyone. My name is Cindy Butts, and I am the independent public advocate.
Dr Mullan
Q
I have a sense that the role of the IPA might be a way of addressing the gap between the need to have a public inquiry—with or without a duty of candour—and the need to get people answers more quickly. In your role as the independent public advocate, do you feel that you should have more powers, for example to compel the publication of records and information that might help families to get answers in a shorter timescale, as was suggested today?
Cindy Butts: At the moment, I have gateway powers. Basically, that means that I only have access to information that families themselves should have access to. Although I have been in post for only two months, that provision has not quite yet been tested as to whether I need additional powers. But I absolutely recognise and appreciate the concerns of families in particular that where truth is withheld—in the case of Hillsborough, that was for many decades—that prevents them from accessing the truth. It has not been tested yet, and there might be a case for additional powers to allow me to have access to that information.
Dr Mullan
Q
Cindy Butts: Fundamentally, it is the fact that public officials will be required to act with candour not only in their daily work, but in respect of inquests, public inquiries and any other review processes that might ensue. That is really important, and it can certainly go a long way to recognising the gap, which has existed for far too long, whereby organisations are able to protect their own interests and hide the truth. The Bill can go a long way to filling that gap.
Having said that, although I fundamentally welcome the Bill, it has a number of gaps. I have written to the Committee with my evidence. Some of it relates directly to the Bill, and admittedly other elements sit slightly outside it, but I cheekily wanted to put those issues forward, because I think they are fundamental in terms of truth finding.
In terms of the gaps, the first thing is that the independent public advocate is not mentioned at all in the Bill. That is not a technical omission, but a structural flaw. When public bodies face major incidents—that is obviously the prism through which I am looking at this—they look to the statute that governs candour, and if the IPA is not referenced in that, they will assume that the IPA has no standing in the candour framework. They will not know what co-operation is expected or required of them, and they will treat the duty of candour as something separate from my statutory role. My office, which was created because candour failed, cannot be absent from legislation that is designed to make candour succeed. That is why a carefully drafted provision ought to be in the Bill.
The other area I wish to highlight is the lack of coherence in moral language. What we know—this is a very insidious problem—is that in major incidents, different parts of the state speak in different moral registers. The Victims and Prisoners Act 2024, which brought my role into being, the Hillsborough charter and now this Bill all speak in very different moral language. The Bill is very much in legal terms, the Hillsborough charter is very much in moral terms and the Victims and Prisoners Act is very operational.
I do not think that this is a matter of semantics. It is absolutely fundamental that we have coherence among all the different elements because we know that, otherwise, when organisations are put under pressure, they revert to what is easiest to do. Not having that coherence allows them the ability to navigate to their own advantage.
Another element that requires careful consideration relates to the monitoring of the duty of candour. The Prime Minister announced only a few weeks ago that the Ethics and Integrity Commission would be tasked with setting the framework and monitoring organisations’ adherence to the duty of candour. I think that is right. Having said that, in respect of major incidents, I do not think the Ethics and Integrity Commission is the right organisation to monitor compliance; that should sit with the Independent Public Advocate—with my role—ensuring that organisations are adhering to the duty of candour. The Ethics and Integrity Commission would not be on the ground. It would not have access to, or a relationship with, victims. That gap ought to be filled.
Dr Mullan
Q
Cindy Butts: They are my key points, but I think there is one more that I want to bring to your attention. As the Bill is currently drafted, victims and bereaved families have no formal role in shaping guidance, oversight or the implementation of the duty of candour. Given that the Bill is derived from the experiences of the Hillsborough families and so many others who have faced tragedy, those ought to be hardwired into the Act itself so that reform is something that is never done to them, but always with them. There should be a way in which families have a formal role, working alongside the Ethics and Integrity Commission, to ensure that the Bill is not procedural and that it works in practice. That is fundamentally missing, and it should be corrected.
Dr Mullan
Q
Cindy Butts: No, I just saw it when it was published, and that is because I have been in role for only two months.
Dr Mullan
Q
Cindy Butts: Yes, I would want to see some of the language that is reflected in both the Hillsborough charter and the Victims and Prisoners Act—the section that deals with the Independent Public Advocate, where it speaks to the moral importance of accountability and truth telling—rather than what is there now, which is much more legalistic and technical. I do not think that that necessarily requires an amendment; it requires careful redrafting, which can be done quite easily. I am happy to spell that out and flesh it out in written evidence, if that would be helpful.
Tessa Munt
Q
You referred to the families and an awful lot of individuals who considered that they were really looking forward to you being part of their solutions. Might I ask you to consider something? You were talking about language. I think that what will happen is that every different organisation will create its own code of ethics and own interpretation of the duty of candour. Is there perhaps a place for the Government, or for you and the Government, to work together to make a single version?
I suspect that the public, out there in the real world, will interpret the code of ethics and the duty of candour in a particular way, and will use ordinary language. They will know when it is right and what it is saying, but we might be in terrible danger of local authorities—some of them doing one thing; some of them doing another—and different people interpreting the rules in a particular way.
I recognise the difficulties with Nolan. They have been with us for 30 years, but clearly the Nolan principles have not worked. Is there a possibility of a single framework within which everyone understands what everyone is up to? I say that particularly because in earlier evidence from the chief constable, when he was questioned about various aspects, he thought that it was a brilliant question for other authorities, but not for his.
Cindy Butts: Thank you for that interesting question. The duty will cover hundreds—thousands, probably—of bodies, all with very different roles and remits, so having one coherent framework might be difficult, because each and every one of them needs something that is right for them and that fits the context of the way in which they work and their objectives. That said, there is value in thinking about some overarching principles that certainly ought to apply to how each organisation develops its bespoke framework. First and foremost, however, it must fit in with an overarching set of principles.
That question also points to the issue I raised before, which is about ensuring that victims and survivors are involved in the implementation. I think that they can play a crucial role in ensuring that organisations have a framework that is fit for purpose and that is informed by their lived experience. That would be how I look at it.
Joe Powell
Q
Cindy Butts: I hope that the inclusion of the IPA in law means that organisations understand the IPA’s role of supporting victims, survivors and bereaved families in accessing information and advocating for them for truth—for truth telling. I hope that it is clear that the responsibility of the IPA is to help them to achieve exactly that.
Seamus Logan
Q
Cindy Butts: Yes, please do.
Seamus Logan
Q
Thank you for your very extensive evidence, which is very impressive from someone who has been in post for just two months. However, I wanted to ask you about your previous experience—we got little CVs for the witnesses—as a commissioner at the Independent Police Complaints Commission, and in the transformation of the Metropolitan police following the Stephen Lawrence inquiry. You have extensive experience in very relevant areas. Can you comment on the scale and size of the task in front of us with this Bill? It is very extensive and lists a large number of public authorities. Can you comment on that?
Cindy Butts: I am not sure that I quite understand your question.
Seamus Logan
Q
Cindy Butts: I think it will present a challenge for them, because it is very different from what we have now and indeed from what has ever existed. That is a testament to those who have worked on the Bill and to what it is trying to achieve. It will be an enormous change for them, but it is a change that is long overdue and desperately needed. Yes, it is challenging, but I would like to think that they see the importance and value of the changes that are coming into being, and that they will rise to that challenge, because the status quo is no longer acceptable.
Seamus Logan
Q
Cindy Butts: I do, and it is part of the reason why, in my submission, I spoke to the issue of exceptional circumstances, because, of course, my role comes into play following a major tragedy, such as Hillsborough, or the Manchester Arena bombing, or indeed the Manchester synagogue attack, which I am currently deployed to assist with. On the other hand, I also know that there are cases when only one single death might have occurred, but despite the impact of that single death on a family, and indeed the public interest involved with that, such families are left without the kind of support that I provide after major incidents. Trauma should not be measured by numbers, so I think that is a fundamental gap, which is not necessarily in this Bill, although I would not mind if it were addressed through the Bill. You only have to look at what Stephen Lawrence’s family went through or, indeed, more recently with Harry Dunn and the complexity that that poor family had to deal with, largely on their own.
The Chair
We have about a minute and a half left if Maria Eagle wants to ask a question.
Maria Eagle
Q
Cindy Butts: Very quickly? Exceptional circumstances —I absolutely think that that should be something that I can recommend. Where there is a case that requires my involvement, I should be able to make representations to the Secretary of State in that respect.
As I said before, the issue of being able to access information might be an area where further powers are required, although that should be dealt with very carefully, because we are not an investigatory body and neither should we be. However, it is certainly worth considering whether we should be a sort of safe house to guard information. Also, in terms of the duty to—
The Chair
Order. I am sorry, but I have to stop you there. That is the end of the allocated time for the Committee to ask you questions. On behalf of the Committee, I thank you for your evidence and for taking the time to speak to us. Thank you.
Cindy Butts: Thank you.
Examination of Witnesses
Dr Arun Chopra, Professor Aidan Fowler and Helen Vernon gave evidence.
The Chair
We will now hear oral evidence from the Care Quality Commission, NHS Resolution and NHS England. We have until 5.30 pm for this panel. I would appreciate it if the witnesses could introduce themselves for the record.
Dr Chopra: Good afternoon. I am Arun Chopra, interim chief executive at the Care Quality Commission.
Helen Vernon: Good afternoon. I am Helen Vernon, chief executive of NHS Resolution.
Professor Fowler: Hello. I am Aidan Fowler, the national director of patient safety and deputy medical director at NHS England, and deputy chief medical officer at the Department of Health and Social Care.
Dr Mullan
Q
The Chair
Before we do, there are three witnesses and a number of Members want to ask questions, so Members should bear in mind that we will not necessarily have time for all those questions if they ask the same questions of all three witnesses.
Dr Chopra: I will try to be brief. I want to say at the outset that I recognise the injustices experienced by the victims and survivors of the events that have taken place and led us to this point in considering this Bill. That is on my mind as I am talking.
I have had experience of operating under a duty of candour both as a clinician in the NHS and as part of an assurance body. I recognise what you are saying—that it has not been as successful as we would want it to be—but I do think it has helped. Clear expectations have been created as to what we expect within health and social care services around the duty of candour, and how we expect professionals and organisations to discharge that duty.
It is important to point out that the duty alone is not enough. The sense of the culture within an organisation upstream has a profound impact on how the duties are applied when a notifiable safety incident actually occurs. It is also important to recognise, downstream, after incidents have occurred, how we can take learning from those incidents and ensure that it is disseminated. There are upstream aspects as well as the incidents that take place.
It is also important to point out that, as an assurance organisation, we in the CQC see when the regulation 20 duty of candour is not working. We have taken action over the last 10 years, I think in 361 instances, when we have found that the duties have not been discharged properly. We have a suite of powers, ranging from civil actions to criminal prosecutions, and there have been times when we have taken forward criminal prosecutions when we have found that the duty of candour has not been met.
Some of the practical issues we find include the timeliness of when the duties are discharged. We sometimes find organisations considering whether the duty actually applies and whether the incident qualifies as a notifiable safety incident. Those are some of the issues we find when we look at how the duty is working in the NHS.
Helen Vernon: I agree. I think the aims of the Bill, as when the NHS duty of candour was introduced, are a really important step in increasing transparency and accountability, and thereby improving trust. Our main role is handling compensation claims against the NHS in England. We know from our research that where you do not get transparency, and where you do not get a meaningful apology and engagement when things go wrong, that can drive people to other processes—in our case, bringing a compensation claim to get information.
In reality, we recognise that the implementation has been inconsistent. There are some organisations that do it well and have an open culture, and clearly there are some that could do better. I reiterate what Dr Chopra said about culture: it is key to have a sustained focus on culture and leadership. Consistency in understanding is important, including things like triggers and how you apply the duty in practice, so that it becomes more than a tick-box exercise and becomes meaningful. Lastly, there is training, which we have partly taken a role in delivering to ensure that clinicians in particular have the skills required to deliver the duty effectively.
Professor Fowler: I think we are all very supportive of the notion of being transparent. We have had a duty of candour on organisations, and applied through individuals, for 10 years, but I think we all accept that it has been inconsistently applied. There are very good examples of where it has been applied, and there are very poor examples.
From the individual duty of candour point of view, it is worth pointing out that we have seen a significant rise in the number of people coming forward and reporting incidents—in other circumstances, they are being very transparent, and we are seeing 3 million of those a year. From the point of view of organisational transparency, we already see very good examples of people stepping forward and working with a number of different inquiries. Since 2021, NHS England alone has looked at 600,000 different documents, disclosed 7,000 of them to inquiries and put forward 5,500 pages of witness statements. There is a very significant amount of work there.
The Department of Health and Social Care has rightly chosen to review the individual duty of candour and look at what has worked well and what has not. We are starting to see some of the information from that review, but there will be a publication on that next year. I think it will confirm that, at the moment, it is inconsistent to some extent, and it will confirm the importance of training and support for organisations.
Dr Mullan
Q
Dr Chopra: When we approach looking at the duty of candour in regulation 20, we approach it both at the registration phase, when we are registering providers, and at the inspection and assessment stages, which then determines whether we take any enforcement action.
We have an assessment framework that sets out particular questions that we look at when we assess how an organisation is approaching its duty of candour. Within that, there will be policies and procedures that people need to follow. How do they deal with whistleblowers? How do they deal with people who raise concerns? To go back to Helen’s point, how are they ensuring that training is taking place for frontline clinicians, so that they have a mechanism to raise concerns or incidents that might trigger the statutory duty of candour? That is how we look at the overarching policies, processes and procedures that will satisfy us that an organisation is ready to be registered, and that we can look at them when we are going out on inspections. That is how we look at those issues.
Tessa Munt
Q
I have a couple of questions. First, what do you feel you can do to stop the suppression of witnesses? Will the Bill cover that? We know there are legal duties attached to this, but something has to change to stop whistleblowers suffering detriment. I do not know whether you feel the Bill is going to do it, because whatever has been in place for the last 10 years has not done it.
Secondly, the NHS has shown a willingness to accept people who have been recycled from roles in other services, departments and organisations when they might not have been deemed to have succeeded in those roles; they suddenly become chairs of trusts or take other roles in the organisation. There is something not quite right going on, in my opinion—it is my opinion.
Helen Vernon: I will talk to something that we are doing to help with that, at least in relation to the NHS duty of candour. One of the things that we have heard is a barrier to openness is the fear of a subsequent claim. As a public body, we can do something about that, because we can issue guidance to the NHS that debunks it, in essence, by saying, “It’s incredibly important that you put the duty of candour first, that you are open and honest, that you share information when it is available, and that you do the right thing for the patient, regardless of the possibility of subsequent litigation.”
That is one thing that we have been doing. It is a message that we have found it quite difficult to permeate in its totality, bearing in mind that we have clinicians coming up all the time through training, for example. We need to get to people when they are taking on a new role and we need to cover the whole of the NHS, which is evidently huge, but it is certainly something we make a huge effort on, to make sure that we remove barriers where we hear of them.
Professor Fowler: From the NHSE point of view, I would argue that progress has been made but it is imperfect. I accept that point, but I think we have seen evidence of greater levels of transparency, as I said.
Obviously, the Bill will need to interact with existing provisions, such as professional regulatory standards. We have a fit and proper person test that we apply— Arun might want to come on to that, because some of it is done through the CQC. We now have a 10-year plan that commits to radical transparency as part of its aims. Underlying that, in order to drive up quality, there is a commitment to a quality strategy, which we are working on and will look again at assurance mechanisms and how we tidy them up and simplify them to some extent, but also how we improve them.
In making these changes we have to be very cautious to understand, first, why people do not step forward if they do not step forward, and secondly, that we have obligations, for example, to protect patient confidentiality in any information we release, protect our staff, and look at proportionality. I mentioned the volume of papers we have looked at; it is important to understand that there are resource implications for clinicians’ time in responding to some of this. There is a lot of complexity to some of the things we need to look at in making sure there is not a chilling effect and that people are willing to step forward and do not see a potential impediment.
Dr Chopra: Aidan has already mentioned the fit and proper person test, but I want to make a couple of additional points. It is so difficult that we have to legislate for candour, but some of this is about culture in organisations, and there is a way of tapping into looking at an organisation’s culture. We have questions in NHS staff surveys about how confident staff feel about raising concerns, and whether those concerns will be responded to. I find that data is quite helpful to understand a sense of the culture in the organisation.
The other point I was going to mention was about inequalities, demographics and protected characteristics. A great proportion—up to 40%—of the medical workforce in the NHS come from minoritised ethnic backgrounds, and they are often the people who struggle the most to have their concerns raised. They are the ones who are scared of retribution for raising concerns. Tackling that will be a significant factor in making sure that the duty of candour, as it is currently is meant to work, is as successful as we would like it to be.
In terms of how we can measure some of that, my team was able to run about 100 of our recent reports using a large language model in AI to look at duty of candour. When it comes to comparing those providers that were rated “Outstanding” or “Good” with those that were rated “Requires improvement”, an open, transparent culture consistently came up as a likely factor. That is evidence that such a culture is more likely to lead to an organisation that we describe as discharging its duty of candour well. These factors are really important.
On the interplay point that Aidan mentioned, we will have the statutory duty of candour, the professional duty of candour, the provisions of the Bill and the NHS manager’s duty of candour. We have got to make sure that these four pieces of legislation work together.
Tessa Munt
Q
Dr Chopra: I will briefly come back on that. One of the considerations in the 10-year plan is the role of the Health Services Safety Investigations Body, which will work more closely with the CQC in time. The HSSIB has what is called a protected safe space, which allows people, without fear of accountability and retribution, to raise concerns. One of the things we are concerned about in the Bill is whether the scope of clause 5(1), on other investigations, will include investigations undertaken by HSSIB when it works closely with CQC. It will be important to protect that space for the reasons you mention.
Lizzi Collinge
Q
Helen Vernon: Those are incredibly sad circumstances and sensitive issues. I think it will be a big help and support that aim because, as I mentioned earlier, an open and transparent response right at the start has the best chance of not only avoiding somebody consulting lawyers or initiating a claim just to get answers, but avoiding that claim subsequently escalating into unnecessary and adversarial legal proceedings. We have driven down the number of cases that go into formal litigation by using alternative dispute resolution, which generally involves bringing clinicians and the organisation together with the family. But you can do that only if there is an atmosphere of trust and clear transparency as to the information that is being shared.
Lizzi Collinge
Q
Helen Vernon: Just briefly, we hope that it will bolster transparency and the existing duty of candour, but perhaps Professor Fowler wants to come in.
Professor Fowler: I certainly agree with that. We have had the opportunity to talk about the sad case of Ida Lock. Thinking about where organisations have not been sufficiently transparent, we see occasions on which it is a failure to understand. I was involved with some training for staff who had worked in an organisation—it is not appropriate to name the organisation—where they had seen considerable failings. They were in tears during this training about reporting incidents because they realised they had been getting it completely wrong. It is incumbent upon us to work with organisations to change culture, but also to educate, train and support people, and to professionalise the approach to reporting and openness that we want to see, but that has to be done in a way in which people feel psychologically safe to do so.
I recognise anxieties about people suffering harm as a result of exercising the freedom to speak up, but it has been very successful when we look at the number of people we have seen coming forward with issues, most of whom I would argue do not suffer detriment as a result. This is about psychological safety, training, encouragement, support, standardising and professionalising around safety. A lot of the work we have done around safety has been about the governance and organisational principles of how it is done, and underlying all of it is a clear statement about systems and culture.
Lizzi Collinge
Q
Helen Vernon: They should not, but as we mentioned, there is inconsistency. Part of our collective role is to make sure that people understand its importance, how to do it well and how to deliver candour in practice.
Professor Fowler: You mentioned closed cultures. I spent six months recently working as an interim in the CQC in the gap between chief inspectors. One of the things we recognised is that where we saw organisations with challenges, there was often also a closed culture. To be clear, that is a minority of organisations, but I think the two go together.
Dr Chopra: I recognise your questions, and I agree with what Aidan said. I have seen instances where what you have described is the case—as Helen said, it is inconsistent—and I have seen brave clinicians who have said, “Right, if it is not going to trigger the organisational statutory duty of candour, I do have a professional duty of candour, and I am going to raise it that way.” I hope the Bill will bolster that, as we have said.
Seamus Logan
Q
Professor Fowler: This is a very complicated issue. A few cases of people who have suffered detriment around freedom to speak up become very magnified. I genuinely do not see that as the experience of most people who speak up, but we do hear about it. In some cases, there is a great deal of complexity. In some cases, a massive breakdown of relationships within a unit that had started to impact the unit is what required the person to act in the way they did. Getting the balance right is a complex business.
In the past, I had cases where I thought, “This is a serious issue and we need to do something about it,” and was encouraged to think otherwise. That is historical—I am talking 20 years ago—and I have certainly not experienced it recently. I am not someone who has felt that there is an impediment to me speaking up, and I see plenty of examples where people are able to do that, but you do occasionally hear of people who feel they cannot, in difficult circumstances. We are working to change that culture and make it clear that there is detriment to not speaking up rather than the other way round, but it is a complex challenge. There is progress, but there is more to do. I hope that this Bill can be part of that, but there are some cautions to getting this right and getting the balance right.
Dr Chopra: I agree. I think it is about the culture. There is that saying that culture eats strategy for breakfast; in the same way, culture will eat many of these provisions. We have to get the culture right, and we need to do anything that we can to tilt the balance to create a culture of openness and candour. The reason people fear suffering detriment is that they have seen examples; we have to recognise that the high-profile cases that Aidan mentioned do have an impact on people coming forward. In fact, we probably ought to be celebrating those instances where people are able to raise concerns and blow the whistle, and things improve. That might help to start shifting the culture.
Seamus Logan
Q
Dr Chopra: Going back to what I was saying about our role as a regulator, I have focused on where we have taken enforcement powers where we have seen things that have not worked, but I think we could also do the opposite. As a regulator, we could be talking about those areas that we see as outstanding, and platforming what they have done with their policies, processes and procedures that have made them outstanding. Being a regulator that champions innovation and outstanding organisations is something that the CQC could contribute. That might be one way.
I have worked in other jurisdictions. When I think about how duty of candour works in Scotland, one of the differences is that every organisation in Scotland has to do an annual duty of candour statement. Each organisation is required to set out at the end of the year how many instances of duty of candour have been picked up, the very top headlines of what the issues were, and what they are doing about it. I thought that was a good provision that I saw operating up north. It is not perfect, but it shows how the duty is working in practice. I was working in an assurance body up there, and it allowed me to look across the country to see what was happening and whether there were areas where under-reporting may be taking place. It allowed better monitoring at national level.
Helen Vernon: In addition to what we do in relation to compensation, we have a role in the effective management of concerns about practitioner performance. Recognising some of the things that you mentioned, we did some work on some guidance called “Being fair”, which was about setting out some principles on a just and learning culture and what that looks like. Translating that into practice has meant creating templates and some simple principles that can be shared across different organisations to make it easy for people to speak up safely. That was co-produced with the input of regulators and clinicians who have been through some difficult processes, but it is one of the ways in which we can bring practical guidance to sometimes difficult concepts.
Dr Mullan
Q
Dr Chopra: We get notified of incidents. To be very frank, we are a responsive organisation when incidents occur; when we are made aware of PFD reports, we look at them. Because of the way that we look at things, as I said, we are responsive rather than taking a proactive view, but yes, that is right. One thing that might be helpful is to bring those recommendations to a national body. We are pinning a lot on the National Quality Board at the moment, but it would be helpful to bring recommendations to a central place that would allow their dissemination so that they land not just in the organisation where the incident occurred but across the piece.
Dr Mullan
Q
Professor Fowler: We certainly look at all the reports that are sent to us in a themed way, and look at the themes from that. In fact, I met the chief coroner this week, and we have regular discussions. You will know we have the medical examiner system now, and there is more we can do tie in the different processes and make sure that we learn from them. We look at what organisations report in quality accounts. We have prevention of future deaths reports and the “Learn from patient safety events” database, in which about 0.5% of the 3 million incidents are related to death. We bring the learning from those things together in a themed way with other data to ask, “What can we learn from all this together?” For example, medical examiners may require people to do a structured judgment review. We make sure that if that is requested, it is carried out, the learning is taken from it, actions are followed up and the cycle is completed, if you like.
Ian Byrne
Q
Dr Chopra: Can you say a little more?
Ian Byrne
The duty of candour applies to the organisation, not to the individual—in other words, the chief executive. Do you feel that is where it loses its power and does not permeate through the organisation?
Dr Chopra: I described an incident where an individual said, “Well, if the organisational duty of candour is not triggered, I have my professional duty of candour as a mechanism to raise concerns.” Building on that, I agree that it is probably important to locate the duty with an individual as well as an organisation. We have it for professionals and, although many chief executives come from health backgrounds, I think it would be helpful for managers to have that duty on them, which is one of the things the Bill supports.
Ian Byrne
Q
Professor Fowler: I think what is written into this Bill is to try to encourage exactly that with non-statutory inquiries: to bring them up to the same level as a statutory inquiry, to some degree. There is a great deal of detail around the Lampard inquiry—it has grown to a very large extent, and the amount of information required is quite large for that particular organisation—but I could not comment in particular on why individuals did not want to step forward in that circumstance.
The Chair
Order. Regrettably—I am terribly regretful today—that brings us to the end of the time allotted for the Committee to ask questions. On behalf of the Committee, I thank the witnesses for their evidence.
Examination of Witnesses
Nathan Sparkes, Jacqui Hames, Flora Page, James Killen and Ron Warmington gave evidence.
James Asser
On a point of order, Mr Dowd. Before we hear from this panel, I need to declare an interest. From 2014 to 2015 I worked for Hacked Off, alongside one of the witnesses.
The Chair
We note the point of order from James Asser—thank you.
We will now hear oral evidence from Flora Page KC, WhistleblowersUK, Second Sight and Hacked Off. We have until 6.5 pm for this panel. Could the witnesses please briefly introduce themselves for the record? I am beginning to sound like a stuck record.
Nathan Sparkes: I am Nathan Sparkes, chief executive of the Hacked Off Campaign.
Jacqui Hames: I am Jacqui Hames, one of the directors of Hacked Off.
Ron Warmington: I am Ron Warmington, chairman of Second Sight Investigations.
James Killen: I am James Killen, head of policy and research at WhistleblowersUK.
Dr Mullan
Q
Ron Warmington: Thank you for the question. I think it would have made a difference. I have been involved in companies that are steeped in ethical behaviour and have codes of conduct and sign-offs each year to confirm that people understand the letter as well as the spirit of the rules. What we encountered was what I have described in the past as weasel wording: straight questions altered to suit the questions that the recipient would have preferred to have asked of them, and answers that were seemingly compelling but actually not even, in some cases, telling the truth, let alone the whole truth. It should not have been, but it became a battle—a sort of warfare. It was completely unexpected by me that that behaviour would occur. I have dealt with out-and-out crooks before, but when it comes to that behaviour from the top brass and then the behaviour, as a contagion, going right through the company, I had not really encountered that before. That needs wholesale ethical change, and I am not sure an Act of Parliament can enforce that, but it will be a good thing to try.
Dr Mullan
Q
Ron Warmington: I do not deal with most organisations, but the Post Office was exceptionally bad in its behaviour. I think it originally intended to work with my company to seek the truth; there were individuals who clearly wanted to do that, but preservation of the brand and short-termism—there was the misconception that pretending that the organisation never makes any mistakes at all was going to be good for the corporation in the long term. It is complete nonsense, but that was the philosophy that had spread throughout the organisation.
I am 76 years old; I was raised in an era when my word was my bond and you did not need to have everything in writing. Corporate behaviour—unless I am misguided —was much better then. I hate the way the corporate world has gone, so I guess I was not that surprised at what we found in the Post Office.
Dr Mullan
Q
Ron Warmington: I would hope so. Every board—I have been on a lot of them—is, every now and then, trying to deal with something that has been screwed up badly, and a decision has to be made: “What are we going to do about it? Are we going to front it out, or are we going to try to cover it up?” It does not take much to shift that decision in the right direction. This measure might be enough to do that.
Dr Mullan
Q
Flora Page: Let me answer that partly with reference to your earlier question; I have also been involved in the Post Office case, and it seems to me that there are some difficulties about whether the Bill would have applied, because it is not clear that the people to whom one would wish the duty of candour to attach would necessarily be public officials. I think there are also difficulties about whether Ron’s investigation would have qualified as an inquiry or investigation—so there are a number of difficulties.
That takes me back to whistleblowers and your second question. The whistleblower provisions that we have in law at the moment are wholly inadequate, and the reason is that they put the onus on the whistleblower to enforce their rights as if they were employment rights, through the Employment Tribunal. That is entirely wrong-headed: when you speak up, it is not an employment issue; it is a public interest issue. When you are a whistleblower and it falls to you to protest any detriment that you might be suffering, it is treated as if it were a personal grievance matter—as it often is in the Employment Tribunal—rather than being taken out of the whistleblower’s hands and put into the hands of somebody who is there to look out for the public interest.
I can speak from very direct personal experience representing whistleblowers in the Employment Tribunal. It is an incredibly hostile environment for them. If they go all the way to a hearing, they are having to speak up again, often the people they have spoken up about are right behind them, and they have no protection. It is an unreasonable demand for people to have to put their families and their future employment in jeopardy and to be that brave. Some of the people whom I have acted for have been that brave, but that story is not a good story to tell; people do not want to be in that position. You cannot go out and say, “This is super. Let’s celebrate being a whistleblower,” because nobody wants to have to put themselves in that position—at their own expense, if they have sought legal representation.
What we need is a much nimbler inquiry or person who is responsible for stepping in if the employer is not dealing with the whistleblower properly, so that it is taken out of the whistleblower’s hands and becomes a public interest matter. At WhistleblowersUK, there is a lot of talk about an office for the whistleblower, because that would be something that took it out of the whistleblower’s hands and took it out of the employment context.
Dr Mullan
Q
Flora Page: An office that was used to these problems would quite easily and quickly winnow out the people who were using it as a front. Often it is as simple as the chronology: if a whistleblower has been trundling along just fine in their job, and then they speak up and suffer detriment, that often means they are a genuine whistleblower. If it turns out that there has been all sorts of back and forth about personal grievance issues first, and then they start blowing the whistle, that is a different matter. Often it is as simple as that. People who are used to these matters—at WhistleblowersUK, there is a great deal of triaging of the inquiries that come in—can quite quickly tell who is a genuine whistleblower.
Dr Mullan
Q
Flora Page: You could easily. I suppose one would seek to front-load the issues. I am not against the provisions of the Bill at all, but what the Bill deals with is after the event: some terrible thing has happened, a large inquiry has been set up and we are having to unpick the fact that people have not told the truth in real time. With something that protected and supported whistleblowers up front, one would hope to be able to bring the problem forward, and have much nimbler and cheaper investigations arising out of whistleblower complaints.
If there were disgruntled people moaning and saying their concerns had not been looked into, let them trundle along and see whether, 10 years down the line, it turns into a big public inquiry; nine times out of 10—or probably 99 times out of 100—it is not going to. My view is that we spend too much money on these public inquiries. We need to find a way to front-load the problem and support people when they first start speaking up, so they feel able to put those problems, first, into the employer domain and then, if necessary, into the public domain.
Tessa Munt
Q
Ron Warmington: Likewise.
Tessa Munt
You have already referred to the Public Interest Disclosure Act 1998, the fact that that puts whistleblowing into the framework of an employment law issue, and the fact that it does not protect against retaliation. The focus then is on a whistleblower proving that they are deliberately being acted against, as opposed to on the wrongdoing done by the organisation in the first place; when they come out of the employment tribunal, they are then very often blacklisted and cannot work again.
Do you feel that the Bill provides enough anti-corruption effort to ensure that, in particular, we could have prevented the Post Office scandal? As I understand it, 47,000 cases are waiting in the employment tribunal at the moment—that is the current backlog. Once this legislation comes into play, my sense is that that 47,000 will escalate beyond belief, but I will leave that with you. Does the Bill go some way to sorting this out?
James Killen: The short answer is no. What strikes me most in the Bill is that it makes the duty of candour an individual thing, and focuses very much on the corruption that goes on at the level of the chief execs. In my mind, and certainly having listened to the health people earlier, the majority of duty holders will be people who are on the minimum wage and potentially part time—what I would class as vulnerable duty holders. Those people are going to be placed in the situation of having to choose between a potential criminal sanction for not exercising their duty of candour and speaking out against a corrupt boss who will potentially pull all the levers they have in the business to destroy their career. They are going to choose between their careers and families or a potential criminal sanction.
For me, the largest omission in this Bill is that there is no form of criminal sanction for interfering in another person’s duty of candour. Culture and so on was talked about a lot earlier, and there is something there—I agree with everything that has been said about the idea of an office for the whistleblower, because I think that would take all of this away, but, if we are speaking about maybe a 60% or 80% solution, some sort of clause in the Bill that gives a criminal sanction to other people within an organisation for interfering with somebody else’s duty would be key.
Ian Byrne
Q
Nathan Sparkes: As you point out, there was a phenomenon of police officers briefing The Sun newspaper after the Hillsborough disaster, which was a huge part of the cover-up. Police officers were not the only public officials involved in that; the local MP was, and there is a disputed allegation that a representative of the Thatcher Government was as well. There was a huge amount of public official impropriety in that media cover-up operation. Unfortunately, that is not the only case; after Orgreave, similarly, there was a cover-up perpetrated between public officials and the media.
The history of the phone hacking scandal is a 15 to 20-year series of occasions where overwhelming evidence of criminal activity being carried out on behalf of News UK was presented to the Metropolitan police force, and every time it failed to properly investigate until it absolutely had to. That was during a period where a succession of Metropolitan Commissioners enjoyed excessively close relationships with News UK; it included a time where even an editor for News UK was hired by the Met, and there were records of eight dinners between heads of the Met and News UK editors over that period.
In more recent years, there are allegations that police fed information about the victims of the Manchester bombing to the media. Christine Flack, the mother of the late television presenter Caroline Flack, believes that police were briefing the media in relation to her case. Mazher Mahmood was a News UK reporter, and there is an allegation in a recently published book that the Met protected him from prosecution and exposure during the noughties on account of the closeness of that relationship.
I could give many more examples—I will not sit down and list them all—but the point is that there is a specific and persistent issue with corrupt relationships between public officials and the media. Our concern about this Bill is that it does not have anything substantive to address that. The long title of the Bill is very clear; it will
“require public authorities to promote and take steps to maintain ethical conduct within all parts of the authority”.
Our submission your Committee is that the Bill cannot achieve that unless it also addresses the specific phenomenon of corrupt relationships. Our proposal is that the best way of dealing of that is with a public inquiry.
Mr Morrison
Q
“for the purposes of journalism.”
That is the wording in the Bill. As has been so rightly pointed out, we know there has been a history of public officials who have been using the media in lead-ups to inquiries and so on. Critics, to a point of view that I might have, would say that any kind of stamping down or work on that would be an attack on freedom of speech. What would you say to that?
Nathan Sparkes: In a lot of legislation there are special exemptions for journalism, and often that is justified, but I think it is for the Government to justify that exemption when they bring forward legislation. I do not think it can be justified in this case.
Looking at that offence, there is a six-part test for it to apply. The person must have departed significantly from the expectations of their role, they must have caused harm to someone, they must have been responsible for significant or reputed dishonesty, it must be about a matter of significant concern to the public, it must be seriously improper, and they ought to know that it was seriously improper. That is an incredibly high threshold, and rightly so, but it is inconceivable that there is any legitimate journalistic activity that would satisfy the remarkably high threshold of all six tests that we would want to protect. On that basis, we do not think it is appropriate. The challenge for the Government is whether they could identify a circumstance in which any journalistic activity that would be in breach of those would be legitimate. I do not think they can; I think that is inconceivable.
Seamus Logan
Q
Ron Warmington: I do think that everything is hyped, but luckily, I was in Burbank looking at a business that did that, and it was the worst business—at that point— that I had ever looked at, so it was easy to predict what would happen.
Seamus Logan
Q
Ron Warmington: I have been in this situation in boardrooms where something horrible has happened—a valve has blown up on the ocean floor, a building has burnt down or whatever. There needs to be a contrarian—it does not always have to be the same person—who is prepared to say, “Look, chaps, ladies, what I’m hearing is that you all want to cover this up. Let me tell you why this isn’t a good idea.” A lot of cover-ups stay covered up, but occasionally, one gets uncovered, and then the consequences are much worse than if we had come clean. We need to get the board members to see that balance. I would like to see training in business schools on the consequences of embarking on a cover-up—there probably is none. How do we get the decision makers to do the right thing? It is not religion that is going to persuade them to do that any more—it used to be.
I am used to working in huge organisations that were big enough to have their own independent investigation teams—I used to run them—which would be completely trusted by whistleblowers. We knew that one never burnt a whistleblower. They could safely come to us. That generates in an organisation a unit, a department, that can be trusted to deal with the worst possible things that you can imagine happening. Most companies are not big enough to have such an organisation, and some are big enough but do not want one. Maybe there is a case to be made for some sort of national body to be that independent investigative authority—something that is not quite a public or statutory inquiry.
In my investigation, we should never have been contracted to the Post Office. That was the subject of the investigation thinking that it was paying the piper, and that therefore it could call the tune. There needs to be some body—the National Audit Office does fantastic work—to which people could go and feel in safe hands. I do not know how we change the ethics of the corporate world. I wish we could; I just do not think the ethics are the same as they were when I was a wee lad. I do not know what will bring it back. It is not just this country that is suffering in that way. I am sorry—I am dodging your question.
Seamus Logan
Not at all—I thought it was a good answer.
Flora Page: It is about incentives, isn’t it? The incentives have to be aligned for folk to do the right thing.
Ron Warmington: Yes, we have to get people to make the right decision. They will not do it just because it is the right thing to do. Some people will—even though it is costly to themselves, their careers or their companies, they will do the right thing; I have been brought up with people like that. Other people need to be persuaded to do the right thing by threats or by incentives, or ideally both.
I do not think we can just hope for the best that the ethics of corporate Great Britain and civil service Great Britain are going to change. I mean, I have seen Ministers talk utter nonsense because their civil servants parroted nonsense that was parroted to them by people in the organisations that ought to have been subject to review. I feel sorry for MPs and Ministers in those cases.
Jacqui Hames: It is important to point out that the media companies responsible for the industrial-scale phone hacking saga are corporations. They make a profit or loss, and they hide behind the free speech mantra, but ultimately they are creating a culture where this behaviour is acceptable—where criminality is acceptable. There is no doubt that a whistleblower coming from their side of the fence would be treated extremely badly.
As a victim of phone hacking, as an ex-police officer who had their personal items sold to a news corporation, I know that you have nowhere to go in those circumstances if those corporations are just going to hide behind a freedom of speech defence. It is not freedom of speech to spread misinformation and disinformation that affect the wellbeing of hundreds of people who have already gone through intolerable experiences.
Tessa Munt
Q
Ron Warmington: I have it written down, yes.
Tessa Munt
Very good; I did not know that. There are also subcontractors of subcontractors, because it is commonly the case that we are looking not just at the first-tier contractual relationship, but at the second, third and sometimes fourth-tier relationships. There is a question about that.
There is then another issue. Some of you might want to comment on the fact that in March this year—I think I am right in saying this—His Majesty’s Revenue and Customs introduced a whistleblower reward scheme for reporting fraud, and on where that scheme might go and how useful it is. I have no idea how successful it has been—I do not have any figures for it—but one senses that it might be successful.
Ron Warmington: In a sense, that is where this all started, isn’t it? I mean, there were defence contracts in the United States and someone thought, “I’m going to blow the whistle on such and such a corporation, which has been ripping off the Defence Department by $100 million. Therefore, I’m going to get something out of it.” Actually, that is quite healthy, until it goes horribly wrong; it is a double-edged sword.
On the point about subcontractors, yes, we felt quite exposed when the Post Office tried to—in fact, did—implement draconian contractual terms. That was extraordinarily risky for myself, and for my fellow shareholders and directors. The only time that we could speak safely was when we had parliamentary privilege in situations such as this one. All the rest of the time, we did not; if we spoke up, we were at enormous risk. That did not stop us, as it happened.
It is not necessarily a good thing to say that an investigation firm such as my own, which is contracted to look into something that is going wrong or that has gone wrong, should be hugely protected in some way, because then it would not be trusted to do the work in the first place. You somehow have to strike a balance between the client relationship—not that the client ever should be the subject of the investigation—and some sort of protection. At the moment, the process does not work. It only worked in this case because we didn’t give a damn. As far as we were concerned, we did not really need the work, and did not need the money and did not mind being fired. But not many firms are in that lucky situation.
Tessa Munt
Q
Ron Warmington: Pretty well the only material whistleblower was Richard Roll, whom I spoke to well before he was prepared to come out. We obviously protected him. We tried to give hints to people at the Post Office that there might be a whistleblower at some point—when I knew jolly well that there was—in order to give them an opportunity to follow the righteous path. They did not really pick up on that.
We have always been a bit like journalists—one never burns one’s source. If any investigator ever did that, his or her career would be over. Once you get a reputation for advancing your own case over the body of a whistleblower, your career is dead. It is self-interest to protect whistleblowers. I have on many occasions been asked by companies—in fact, bank chairmen—“Can you help us find out who this whistleblower is?” I have told them, “You’d better find another firm. I could find them in a heartbeat, but I’m not going to.” That is corruption coming out again: “This person’s causing our company problems. Can you help us find the troublemaker?” “No. Go away.” But not all firms do that.
Flora Page: On the Fujitsu question, it is extraordinary that, over all those years that Fujitsu was remotely accessing sub-postmasters’ accounts and using their user IDs to enter transactions, there were no whistleblowers. That tells you all you need to know about certain organisations not providing the structure and the framework for whistleblowers to come forward. There must have been hundreds, possibly thousands, of people who knew what was going on.
James Asser
Q
Nathan Sparkes: In terms of public officials’ candour in investigations and so on, we endorse the position of the Hillsborough Law Now campaign, of which we are a part. Further to its amendments, the Bill does a good job.
In terms of the specific phenomenon that we have identified of corrupt relationships between public officials and the media, the Bill does not go nearly far enough. Those relationships are, by their nature, covert. They are at best improper and at worst corrupt and unlawful. The only part of the Bill that attempts to grapple with them at the moment is the code. Public officials who are engaged in that kind of corrupt behaviour are very unlikely to be persuaded to clean up their act by a code.
A whole succession of investigations, inquiries and scandals have all come to the same conclusion: we need a public inquiry into the specific phenomenon of relations between public officials and the media. Given the long title of the Bill and what it promises to achieve, that appears to us to be a significant omission. That is why we are very keen for the Committee to consider an amendment to that effect. Jacqui, do you have anything to add?
Jacqui Hames: Yes. What is the risk for the individual concerned in that transaction? If you think there is a bigger risk of being exposed and taken to court, you will change the way you behave. Having been a police officer in the ’70s and ’80s, as well as having seen things from this perspective, the difference is the culture of secrecy and reputational protection. If you can change that from the inside and say, “This is not going to be tolerated. This is what’s going to happen,” people will stand behind that. It will give them protection if they are being sucked into something that they cannot get themselves out of and are coerced. In many respects, that is the difficult area: people being coerced into behaviour that in another circumstance they would perhaps not consider getting involved in. It is a real problem that people get coerced—as Nathan said—because so much of this happens in secret.
The Chair
Order. I am sorry for interrupting, but that brings us to the end of our allotted time for the Committee to ask questions; I am sorry that we do not have any more. On behalf of the Committee, I thank the witnesses and regret that we will not be able to take this further with you today. Please let the Committee have any other comments in writing.
Examination of Witnesses
Andy Burnham and Steve Rotheram gave evidence.
The Chair
We will now hear oral evidence from the Mayor of Liverpool City Region combined authority and the Mayor of Greater Manchester combined authority. We have until 6.30 pm for this panel. I would appreciate it if the witnesses could briefly introduce themselves.
Andy Burnham: Good evening, I am Andy Burnham, the Mayor of Greater Manchester. Between 2001 and 2017, I was the MP for Leigh. During that time I was Culture Secretary on the 20th anniversary of Hillsborough. I introduce the initial Hillsborough law to Parliament as a ten-minute rule Bill.
Steve Rotheram: My name is Steve Rotherham. I was a Member of Parliament in the dark days between 2010 and 2017.
Dr Mullan
Q
Andy Burnham: It substantially meets the provisions of the 2017 Bill. It is 80% to 90% there. Previous to its introduction to Parliament, Mayor Rotherham and I worked closely with the Government and got it to a point where we felt it was worthy of the name “Hillsborough law”—although there were still further issues to be picked up by amendments, which the Government agreed to as part of the negotiation process.
One of those issues was the extent to which the duty of candour applies. I can tell the Committee more about my experience in convening inquiries at a Greater Manchester level, which may be relevant to the discussions. I also wish to see the parity of legal funding for bereaved families stated more clearly as a principle in this Bill, with a firm guarantee of what that means for families rather than a fairly loose entitlement as it is at the moment. We can go into the details, should you wish, but the Bill is substantially there.
With legislation of this kind, it does not help anybody if loopholes, grey areas or high hurdles are created in terms of the tests for duties to apply. It is going to be helpful for everybody if the Committee and Parliament can make it absolutely plain what this Bill is intended to cover and what it is not. That will empower the public, which is, at the end of the day, what this Bill is about. There is still some work to do in certain areas to remove some of those loopholes and grey areas. I think that I speak for Steve as well in saying that we have been advised throughout by the lawyers of the Hillsborough Law Now campaign. We strongly support the evidence that they have put to you as a Committee today.
Dr Mullan
Q
Andy Burnham: We certainly support all those amendments. I do not need to go through them—you know what they are—but I would like to speak about two of them. The first is a Government amendment, I think, which may have come forward to the Committee already, on inquiries and the inquiries that are to be covered by the Bill. As Mayor of Greater Manchester, I have convened two major inquiries. The first was the Kerslake inquiry into what happened at the Manchester Arena attack. The second was a major review into child sexual exploitation, or grooming, in Greater Manchester.
I pushed for the Government to introduce that further amendment, because my experience with those reviews was, first, that Greater Manchester police was not entirely accurate in the account that it gave to the Kerslake report, which remains of deep concern to me, because clearly a report of that nature is not done under oath. We initiated it because we felt it to be right that, immediately after the attack—we could not wait for the public inquiry—we should gather learnings for our police force and fire service. It is barely believable that an inaccurate version of events was provided to Kerslake by Greater Manchester police.
Secondly on grooming, it was my experience that, through various reports into the issue in Manchester, Rochdale and Oldham, the inquiry team found repeatedly that public servants refused to give evidence to them. There was no duty to assist in place, therefore public servants could do that without any consequence. On those issues, I hope you can understand why I pressed very hard for an amendment to ensure that the Bill covers inquiries ordered by combined authorities and local authorities.
I believe the Government have created a serious harm test for those inquiries. We are not necessarily against that, but we hope the Committee will assist us in getting a clear definition of what that actually means. In the case of grooming, I did not necessarily have all the evidence at the time that serious harm had taken place; it was the risk that serious harm had taken place that led me to want to convene that inquiry. There is an important distinction there; I do not think a serious harm test should rule out the grooming example.
Equally, it has been put to us that inquiries commissioned by local authorities on matters relating to fraud—I think the Edinburgh tram one is an example here—might cause serious harm to the reputation of a local authority. Should they be out of scope? We would say not. We could accept a serious harm test as long as it is reasonably widely drafted to cover all the examples that I have given.
I think I have a position that may go a little further than the Hillsborough Law Now campaign on parity. I personally believe very strongly that this needs to be a firm principle in the Bill. Margaret Aspinall gave evidence to Parliament shortly after the second inquest and she recounted the experience from the first Hillsborough inquest of having to scratch around to fund her own legal costs and having to cash the cheque from the Criminal Injuries Compensation Authority in respect of her son James to pay for her legal fees. I brought forward the original Bill with that experience absolutely seared into my mind—how any bereaved parent should have to do that and go into a courtroom raw with grief, up against the highest KCs in the land who are often employed by public bodies lawyered up to the max. To me, it is a really important principle that there is parity in those courtrooms.
Having a level playing field is a big guarantee of getting the truth, and I personally would like to see an amendment to the Bill that says that there must be a comparable level between the hourly rate of the KCs acting for the state and the KCs acting for bereaved families. To me, that is what that principle of parity actually means. I appreciate the strides that have been made here in terms of access to legal aid and access to legal representation—they are huge strides—but let us go further: the Bill should do 100% of a job, not 80% or 90%.
Dr Mullan
Q
Andy Burnham: There was a concern that, at a local level, inquiries could be launched for fairly frivolous or political reasons. None of us wants a sort of industry in local inquiries using the provisions of the Bill. I understand that concern, and I could accept a serious harm test—as I said to the Minister last week—but it should not rule out major wrongdoing, particularly in relation to fraud. I accept that there could be a hurdle, but there is work to be done by the Committee to establish the precise nature of that hurdle. Obviously, you do not want to see the wasteful use of public funds and the over-commissioning of inquiries—I accept that—but I still think that there needs to be a definition of serious harm.
There was initially a concern about public funds and the affordability of the commitment to parity. Again, I understand that, but Hillsborough Law Now and we would argue that the Bill could lead to lower public spending. Its provisions will help us to get to the truth more quickly and therefore reduce the length of public inquiries. The Bill also creates an incentive for the state to spend less on its own legal representation if there is a duty of parity that bites hard. If there is a rough equivalence in terms of the hourly rate, the state suddenly does not have an incentive to hire the best paid KCs in the land. At the moment, as I understand it, the state is completely free to do that. The Bill needs to create a mechanism that limits state expenditure. The savings from that will then help to pay for representation at a balanced level on the other side. I really wish to see the strongest possible principle of parity of arms in the final Bill.
The Chair
We have three other Members who want to ask questions and less than 15 minutes left.
Dr Mullan
Q
Andy Burnham: There is no question about it, those inquiries need to have trust at a local level. I will be open in saying that the failure of some people to co-operate with the inquiries that I initiated to some degree undermines the inquiry reports. I do not think it invalidates them, by any means, because they were hard-hitting reports, but it is right to deal with these things as soon as possible. The Hillsborough story is about not letting things be unresolved for years and not leaving people fighting for years. Deal with them as up front as you can, and as strongly as you can, at the first time of asking. Obviously, if that principle applies to local inquiries and inquiries commissioned by combined authorities, we are more likely to get to the truth more quickly.
Tessa Munt
Q
Andy Burnham: If I can quickly pick up your point, Tessa, I absolutely agree that there should be full transparency on legal expenditure by public bodies, including police bodies and NHS trusts. I think that the lack of a requirement has led to very unfair situations when the state has lawyered up, as I said before. To me, the Bill should create an entirely new regime that does not allow bereaved families to face the full might of the state, when they have barely any legal representation.
Tessa Munt
Q
Steve Rotheram: I obviously support any whistleblowing protections. Certainly, if there is any enhancement, it should be a requirement for consultation with trade unions when we develop better codes of ethical conduct. There is definitely stuff we can do on that.
We need to empower public servants to foster a culture of candour, and that is why the Bill is so important. Thanks very much, Tessa; I remember you and others, too—it was quite a moment in Parliament. Do not forget that those people have been fighting since we left to get something like this on the statute book. The weight of responsibility on all of you on this Committee is enormous, and I know that you will do well by the families and those campaigners.
Andy Burnham: No pressure.
Joe Powell
Q
Andy Burnham: We want to see a change, as advocated by Hillsborough Law Now, with respect to command responsibility, so that the responsibility is not just corporate but individual. Obviously, the Hillsborough story is the failure to go that last bit of the journey towards individual accountability, which I think bedevils the British state still. In all the examples—Grenfell being a primary one, as well as Hillsborough and the Post Office scandal—where is the individual accountability? We would very much endorse what was said to you by Hillsborough Law Now. It is not about a chief executive or chief constable not knowing what is going on underneath; when there is a corporate cover-up, there has to be some individual accountability for that.
It pains Steve and me that we were never able to achieve that in the Hillsborough example. With the Taylor report, the reason the trial of the criminal cover-up collapsed was because those officers gave their false police statements to Taylor, and Taylor was not an inquiry covered by the oath. That is why the courts said that their evidence could not be admitted, and therefore they were allowed to lie and faced no accountability. We would both say that the command responsibility is really important here. We need to start holding people individually to account for the appalling things they subject people to on occasions.
Steve Rotheram: It needs to be strengthened, that’s for sure. That is to ensure that chief officers, chief executives or chief constables—whoever they might be—are personally accountable for crimes. If the Bill ensures that the responsibility sits with those at the top, and those best-placed to effect change, I am fairly certain that they will not want to be that person who is held responsible, and therefore they will change the culture within those organisations.
Ian Byrne
Q
Steve Rotheram: First, I talked before about the responsibility sitting with you. There cannot be any diminution of the substance of what is already going through the system, but you can use this Committee phase to ensure that we tighten up some of the things that we were unable to get during the negotiations, which ensured that we at least had a Bill to put before Parliament. That is the first thing.
The second thing is that we need to ensure that the main planks—the ones that Andy was talking about before—remain at the forefront of everything that we do. It is about those protections. As you said, this is of course the legacy for the 97. All the families I have spoken with are absolutely delighted at the way in which the parliamentary process has gone so far. Pete Weatherby has done a brilliant job for us. If you listen to anybody, you need to listen to people like Pete Weatherby, and others, who have been on this from day one. They know all the caveats that need to be included so that we do not have wriggle room for occasions in the future when tragedies might occur and people try to get away with it.
Ian, you talked about this earlier. I would love the Bill to be able to ban things like The Sun, following its unconscionable and scurrilous lie, which within days of the tragedy set the false narrative. I know that Leveson 2 is not part of the scope of this Committee, but we need to clamp down on those things and stop them happening in the first place. The untold damage that things like that have done to reputations and to people—the falsehoods are still believed by some people 36 years later—is unfathomable to me.
Andy Burnham: I endorse what Steve just said and the evidence given to you earlier by Nathan Sparkes. Leveson 2 is part of the Hillsborough story, and we believe that it is needed to have the full story.
There is one area that I have not touched on today, but which we need to talk about: the exemption for the security services that we are told is, in effect, in place. That was not the case with my 2017 Bill. That is relevant to us here in Manchester: a false narrative was given by the security services, by MI5, to the Manchester Arena inquiry, and it was subsequently exposed only by the evidence of individual officers. This is not about material going into the public domain that should not. Obviously, there is a proper exemption for some things going into the public domain, but where things do go into the public domain, they should be accurate and truthful.
We have seen the BBC being given false information by the same organisation, so I do not see that the security services can be exempt. In some of the issues in this country that still need further work—the Shrewsbury 24 would be one example—there was definitely the involvement of the security services, domestically, against people. Are we saying that that should be exempt and should not be part of this? What about Orgreave? I do not know the full extent of their involvement there, but certainly the forthcoming Orgreave inquiry should not have that cut off in any way, shape or form. That is something that needs to be addressed in a proper way. No one is calling for things to be put into the public domain that should not, or that would compromise the country or our safety in any way. However, where things are being said, they have to be truthful. I do not think the Security Service gets an opt-out on that, as they seem to think they should have. That would be my final statement.
As I think Steve was indicating, can I thank the Committee? You seem to us to be doing exactly the job we would hope you would do. We congratulate the Government on introducing this legislation in the current state it is in; it is obviously substantially meeting the tests of my Bill, as I have said. But let us not leave loopholes, grey areas or overly high hurdles that can be exploited—that has damaged public trust in the authorities of this country. This Bill should leave no doubt whatsoever about what should be expected in the future and should back people, from the off, to get truth, justice and accountability.
The Chair
Thank you very much, Andy and Steve, for your evidence. That ends this oral evidence session.
Steve Rotheram: Up the reds!
Examination of Witness
Daniel De Simone gave evidence.
The Chair
We will now hear oral evidence—our final panel today—from Daniel De Simone. We have until 6.50 pm for this panel. Please could the witness briefly introduce himself, for the record?
Daniel De Simone: My name is Daniel De Simone and I am the investigations correspondent for BBC News. I am here in a personal capacity as a journalist, rather than speaking on behalf of the BBC corporately. I am the journalist involved in the MI5 case, as you have heard about today, in which they gave false evidence to three courts about conversations with me.
Dr Mullan
Q
It is important for us to have a context and understanding of your views more generally on how we scrutinise our security services. I read with interest your account of what had happened with the legal challenge that the Government put forward to your report in relation to Officer X. It seemed to me that you were describing the fact that there were separate advocates to consider legal evidence, as opposed to your own advocates—that there was evidence you were never going to be allowed to hear—and that you were saying that that in itself was not right. Do you accept that there are times that there should be secret and distinct processes to maintain secrecy, even in the cases of public interest journalism?
Daniel De Simone: I certainly do. I do not think it is wrong that there are special advocates in closed material procedures; it is now an established part of a court process. What it does do, though, is place a special responsibility on MI5 to be candid, because their evidence is often very important in very significant cases, where there has been significant loss of life, where people’s citizenship is being removed or where people are being deprived of their liberties.
That evidence is often heard in secret—so, away from the people most affected. That places a special responsibility on MI5—which they accept; their current director general has spoken about this—because there is a special responsibility on secret organisations to be candid and honest. That is why the duty of candour is particularly important for MI5.
Dr Mullan
Q
Daniel De Simone: There has been evidence earlier today from other witnesses. MI5, as things stand—as I understand it—would not be subject to the same level of responsibilities as other organisations. They would be like a corporate responsibility organisation, not with full command responsibility for the director general. The cases we have heard about—my case, which is still ongoing, and the Manchester Arena—show that there have been very recent examples where there has been a significant failure of a duty of candour. That raises a question about whether MI5 can be relied on to give honest and accurate evidence.
With the Manchester Arena example, they gave a false picture, an inaccurate picture, about the key intelligence that was received before the bombing. In my case, they gave false evidence to three different courts. When that was accepted by them—with some reluctance, I must add—they then said they were going to investigate it and also appointed an external investigator.
Those reports were inadequate. That is not my view but that of the Lady Chief Justice of England and Wales and other senior judges, and the Prime Minister has ordered a new investigation. Even after they accepted it, they still then came to the High Court and gave an inaccurate picture. They gave evidence to the court that was open, and then when they were forced to hand over the closed material, it did not reflect the reality, and the judges said that to them. That is why I think the duty of candour really does apply very importantly to MI5. If it has an exemption and is not treated the same as other organisations, that is a bit of an issue. We have very recent, current examples of where they are not being candid with courts.
Dr Mullan
Q
Daniel De Simone: I am not a legal expert, but from what I understand there is not a full command responsibility on, for example, the director general of MI5, as things stand. There is not the same level of responsibility on the individual officers as there is on, for example, the police or Government Departments. There is a question about why that is, given how important MI5 often is in very significant cases. MI5 often gives evidence corporately to courts and inquiries, and that has been shown, in our case, to be very unsatisfactory. The High Court has issued new guidance on the way MI5 should give corporate evidence, so that it has to be much clearer about where the information comes from and who is responsible for it.
We have spoken a lot about inquests today. In inquests, MI5 always tends to give evidence corporately, via an anonymous corporate witness. The individual officers who make the decisions are not called. With the Manchester Arena case, we saw how important that was, because the corporate witness came along and gave one account in public, and when the arena inquiry chairman made the individual officers come along in a closed session—that, of course, would not be available in an inquest, but this was a public inquiry—he got a totally different account. That is why there is a real importance on individual officers having accountability and corporate witnesses having accountability, because they are corporate witnesses representing the organisation. To be blunt, the director general of MI5 is not really the corporate witness; it is normally someone else who is quite senior, but not the director general.
Dr Mullan
Q
Daniel De Simone: When we have got into a process like the Manchester Arena case, there is a way that that can be dealt with. There is a coroner and a chairman of the public inquiry, and they can deal with that. The point they are talking about there appears to be more about whistleblowing, and if someone feels something is wrong and they need to raise it—
Dr Mullan
Q
Daniel De Simone: There are ways of dealing with that. You could say the same with a police investigation. The police officer might not have the full picture. The point is about whether there is going to be duty of candour responsibility on people generally within the organisation. Is there going to be a command responsibility generally on the director general? I think that is a separate point, because there is a way of dealing with that.
Tessa Munt
Q
Daniel De Simone: I am more equipped to talk about MI5 and the case that I have been involved with, but whistleblowers are clearly incredibly important in my job. I would want to see every protection for whistleblowers, whereby organisations foster a culture in which whistleblowers feel able to come forward and do not feel that it is harmful for them or damaging to their career. I would obviously encourage anything that can be done to encourage that.
Tessa Munt
Q
Daniel De Simone: Absolutely, and I frequently rely on confidential sources, like police officers, who provide me with information that, under the law, they probably should not provide. For example, I have spent a very long time investigating the Stephen Lawrence murder, and that has led to a review to look at whether the case should be reopened. That is a good thing, and the family are very happy with the fact that that has happened, but it simply would not have happened without officers helping me who probably should not be helping me. The fact that they did has led to good things.
Tessa Munt
I suspect my colleague is going to ask you about journalism more generally—surprise, surprise.
Seamus Logan
Q
Daniel De Simone: I have read their submissions.
Seamus Logan
So you are aware of the proposals regarding command responsibility?
Daniel De Simone: Yes.
Seamus Logan
Do you agree with them?
Daniel De Simone: I am not really here to speak on behalf of the BBC about command response or anything else but, as you heard from what I said about MI5, where responsibility can be taken by individuals, that is better than it falling on organisations, because organisations are more slippery and it is harder to hold them to account. Where an individual has to take responsibility, that is better.
Seamus Logan
Q
Daniel De Simone: Absolutely, and that is why we have closed material procedures within the courts. Parliament’s Intelligence and Security Committee frequently sits in secret—that is not in public. There absolutely needs to be places where intelligence and sensitive matters can be discussed. Clearly, no one wants harm to national security or for there to be genuine damage to anyone. I think there are ways of dealing with it. When he gave evidence earlier, Lord Evans said that himself, and he is the former head of MI5.
Seamus Logan
Q
Daniel De Simone: In what way?
Seamus Logan
It is hard to describe a particular example, but in a way that might prevent a whistleblower from taking necessary action.
Daniel De Simone: I think so, yes. Journalists have been arrested under the Official Secrets Act. I am a journalist who has worked in the area of security and matters to do with terrorism, so I am familiar with there being a risk to journalists with official secrets. Someone might tell you something that puts themselves at risk, or they might put you at risk. In practice we see very few prosecutions under the Official Secrets Act—we do not see many of them now—so this is not something that is happening all the time, but there is a risk.
There is obviously a balance, because security and intelligence agencies do not want to feel that anyone who works there can just go off and reveal things that they think are very sensitive, but equally it is also true that there can be things that are wrong within those organisations, and there is not always an obvious place for someone to go if they feel like that. There is often a big risk to that person for doing that. So yes, it can be too much.
Ian Byrne
Q
Daniel De Simone: For MI5? No, I do not think so. Look at what the head of MI5, Sir Ken McCallum, has said. He said in a speech last month that there are particular responsibilities on MI5 as a secret agency to comply with oversight and be as transparent as it can with these sorts of things. He was talking with reference particularly to the fact that MI5 was found to have given false evidence in our case. So strong words are clearly being said.
The trouble we have in our case is that when we showed that there was false evidence, and they accepted that, the third in command of MI5—the director general, strategy—then came along and gave an account to the court that the court, the Lady Chief Justice, the president of the King’s bench division and the head of the administrative court now say was not an accurate reflection of the closed material. That happened after they said they were going to be very transparent with the court. They really had to be dragged to the point they are now in, where there is an investigation that the court—the High Court and the Investigatory Powers Tribunal—required. That is being carried out under the auspices of the Investigatory Powers Commissioner. His organisation was also misled.
In our case, every kind of judicial body charged with holding MI5 to account, or its regulator, has been given false evidence. That is an issue, and it calls into question issues around a duty of candour. Lord Evans said in his evidence earlier that there is already a duty of candour responsibility on MI5 and the Government in the courts, and that is true. In our case, they have admitted that they did not meet that test. It is there; the issue is that it is not always being complied with. As I understand it, the point of the Bill is to strengthen that duty and enforce it. That seems to be why it is there.
Ian Byrne
Q
Daniel De Simone: Yes. We had corporate witnesses, senior officers and the third in command of MI5, and we had Ken McCallum himself saying they were going to get to the bottom of what happened, but they did not get to the bottom of what happened, and the evidence they presented to the court did not reflect the closed material. When the judge made them hand over the closed material, the judge was very unhappy and made it obvious that they had not given a full and honest account. We now have the investigation that is going to look at whether they lied, as we have said, and whether there should therefore be contempt of court processes. That investigation is happening at the moment.
Mr Morrison
Q
Daniel De Simone: As I understand it, the Bill is aimed at public authorities—Government Departments, the police and others—so, as things stand, media organisations are not part of it. I do not know whether there is a proposal to make them part of it, but as things stand they are not. You ask what can be done if I do a story about you that is wrong and you want to hold me to account. I work for the BBC, and there is a complaints process for the BBC that can go even to Ofcom, if necessary, so there are ways of correcting a story or getting an apology if something is wrong.
As a journalist, I work on difficult and challenging stories, and I obviously abhor some of the things you have spoken about today: false information being presented as fact and leading to really harmful consequences for people. I try to take personal responsibility and do the right thing, and I think that is the point—that is why it is important. The more you can foster a culture of people taking personal responsibility, the better. That is why, when there is an exemption for an organisation, and it is not about individuals in an organisation, I think that does weaken it.
The Chair
That brings us to the end of the time allotted for the Committee to ask questions. On behalf of the Committee, I thank you for your evidence. That brings us to the end of today’s sitting. The Committee will meet again at 9.25 am on Tuesday 2 December to begin line-by-line consideration of the Bill.
Ordered, That further consideration be now adjourned. —(Jade Botterill.)