Public Office (Accountability) Bill (Third sitting)
(1 day, 8 hours ago)
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The Committee divided: - Ayes: 5 / Noes: 11 - Question accordingly negatived.
The Chair
Good morning, ladies and gentlemen. We are now sitting in public and proceedings are being broadcast. Before we start, I ask Members to ensure that their electronic devices are switched to silent. Tea and coffee are not allowed in the room during sittings. If any Member wishes, and feels robust enough, to remove their jackets, they may do so.
We will now begin line-by-line consideration of the Bill. The selection list for today’s sittings is available in the room and on the parliamentary website. It shows how the clauses and amendments are selected and grouped together for debate. Many of you will have done this before, but some may not have. This is a fairly arcane process, so let me try to take you through it.
The Member who has put their name to the lead amendment in a group is called to speak first. In debates on clause stand part, the Minister will be called first, and other Members may indicate if they wish to speak in the debate by bobbing as usual. At the end of the debate on a group of amendments and new clauses, I will call the Member who moved the original lead amendment of the group to wind up that debate. Before that Member sits down, they need to indicate whether they wish to withdraw it or put it to a vote. If any Member wishes to press to a vote any other amendment, including other clauses in the group, that is for the Chair to decide. Mr Dowd and I will decide, at our discretion, whether to allow a separate stand part debate on individual clauses following the debates on relevant amendments.
Again, let me explain that. We will start, as it happens, with a stand part debate. Ordinarily, when we have a group of amendments, it is up to the Chair to decide whether the matters grouped in that clause have been sufficiently debated not to warrant a stand part debate. I have always taken a fairly relaxed view of that, because sometimes it is helpful to have in effect a stand part debate at the beginning, to cover a whole group of amendments, to set the background to a debate. That is, as far as I am concerned, largely up to you, but you cannot have two bites at the cherry. Do not expect to have a stand part debate in effect at the beginning of the debate and another one at the end. You will not get it—at least, not from this channel.
Before we begin line-by-line consideration of the Bill, we have to consider an addition to the order of consideration that was agreed last week, so that clauses 19 and 20 to 26 are included. That is just to correct a tabling error, for which we apologise.
Ordered,
That the Order of the Committee of 27th November be amended as follows—
(1) in paragraph 3, after “new Schedules;” insert “Clauses 19 to 26;”.—(Alex Davies-Jones.)
Clause 1
Purpose of Act: implementing duty of candour etc
Question proposed, That the clause stand part of the Bill.
The Chair
With this it will be convenient to discuss new clause 2—Public interest—
“(1) Within six months of the passing of this Act, the Secretary of State must define in regulations what constitutes the ‘public interest’ for the purposes of—
(a) Section 1(1)(a),
(b) Schedule 1(8)(b).
(2) Regulations under subsection (1) may not be made until a draft has been approved by both Houses.”
This new clause would require the Secretary of State to define public interest for the purposes of this Act by regulations.
The Parliamentary Under-Secretary of State for Justice (Alex Davies-Jones)
It is a pleasure to serve with you in the Chair, Sir Roger, on this historic and momentous Bill Committee. With your permission, I will say a few words about just how momentous this is.
Last week, this Committee heard evidence directly from the Hillsborough families about the Bill and what it means to them. I know that the Committee will agree that that was a huge privilege for us. The Bill is of great and national importance to so many people up and down the country, and we will not play politics with this legislation. I hope my colleagues in the Opposition will do the same. What we will do is listen: we will listen to the families, Hillsborough Law Now and the members of this Committee. It is right that they and the Committee push us and challenge us. They have my commitment that if we can find ways to improve the Bill, we will.
Finally, I pay tribute to my hon. Friend the Member for Liverpool West Derby and my right hon. Friend the Member for Liverpool Garston. They have each tirelessly campaigned for justice for the Hillsborough families, and played no small part in seeing this legislation brought forward. I am honoured to have them by my side in Committee.
Of course, we have all said this time and again, but we would absolutely not be here without the families. This is for them, and for those who have campaigned tirelessly for so long to seek justice and to ensure that no one ever has to go through what they went through. This is not just for the Hillsborough families, but for anyone who has experienced cover-up or had to fight for the truth, and for the memories of all those who are no longer with us.
Dr Kieran Mullan (Bexhill and Battle) (Con)
It is a pleasure to serve under your chairmanship, Sir Roger. As we consider the clause and new clause 2, I want to be clear that the Opposition recognise the importance of the Bill’s overarching aims. Candour, transparency, frankness and, above all, the requirement that public officials act in the public interest are principles that I am sure Members from all parties support.
As we commented on during evidence sessions about the chief coroner, it would be quite wrong to portray good-faith efforts to ensure that we give due consideration to each and every possible implication of the Bill as in any way not giving due regard to its noble aims, in particular the considerable effort and good intentions of the many campaigners supporting it, including the ones we heard from during the evidence sessions. As the Minister commented, I do not think that anyone could have been anything but deeply moved and reflective on hearing the experiences that the witnesses went through in such appalling circumstances. They were a limited group, but one made up not just of those affected by Hillsborough but those affected by many other scandals in which the state and its bodies covered up and mistreated people.
Ultimately, even if we believe that the Bill could be improved, and we will hold the Government to account for any unintended consequences, we support the Bill and do not expect to oppose it on Third Reading. I hope that that is an important message for the campaigners supporting it. However, we want to probe the Government’s thinking and suggest possible improvements.
Before we come to the specifics of our new clause, I will comment on clause 1 as a whole, as it lays out the core purpose of the Bill and highlights just how far the political class as a whole has to come in delivering candour, and how contentious these matters can be. In the very weeks we have been considering this Bill, with the Government professing to want to drive further improvements in the candour and frankness of accountability, we have been having a heated and highly contested public debate about what constitutes candour and frankness. I raise that debate not to further discuss it in Committee—it would not be appropriate to engage in it for its merits—but just to highlight exactly how contentious such things are. We have a Chancellor who, in my view, has clearly failed to operate with candour and frankness, but I am sure that view is fiercely opposed by other members of the Committee.
The Chair
Order. I ask the Opposition Front Bencher to stick to the matter under debate.
Dr Mullan
Thank you, Sir Roger. Committee members have been fiercely disagreeing on something that relates directly to the matters that we are considering today on frankness and candour. I think that demonstrates just how challenging these things will be. We are the politicians who are putting forward this legislation.
Maria Eagle (Liverpool Garston) (Lab)
Does the hon. Member accept that matters of party political difference in a political system are not the same as telling the truth about what happened in a disaster or an event? There is a distinction.
Dr Mullan
Absolutely. The Bill is focused on those examples that are clear and egregious, where it is easy to say that there has been a failure of candour or a deliberate attempt to cover up. The legislation will cover many other situations, however, including Members of Parliament. As Members of Parliament, we are expected to operate with a degree of frankness and candour, and yet just this week we have been fiercely debating whether one of our own has or has not done that. It is important for Members to reflect on the wideness of the ramifications outside the purely obvious examples of what might constitute candour, or a lack of it.
Tessa Munt (Wells and Mendip Hills) (LD)
Does the hon. Gentleman agree that we have, in yesterday’s resignation of the chair of the Office for Budget Responsibility, quite a sensible example of what he is trying to express? That gentleman was due to be in front of a Select Committee of this House this morning, but by resigning, he has skipped being held to account for what he must know about the situation. Candour should surely also apply to those who have resigned.
If I may, Sir Roger, I refer back to the fact that one of the deepest problems has been the resignation of senior police officers. Because they have resigned, they skip away over the horizon and are not able to be held to account. There is only one way that someone should not be held to account, which is through not being on this earth any longer.
The Chair
Order. Sorry I have to keep intervening; let us get this right from the beginning, and then it will stay right all the way through. Interventions must be interventions, not speeches. There is a degree of leeway in Committee that does not exist on the Floor of the House, but nevertheless, please try to confine interventions to brevity if possible, because otherwise Members will be here all night. I concede to the hon. Member for Bexhill and Battle that, while the Bill clearly relates —and has related very heavily in terms of evidence—to Hillsborough and Grenfell, it covers a much wider range of issues. We need to remember that.
Dr Mullan
Thank you for that further clarification, Sir Roger.
These issues are absolutely live and happening all the time—this week alone, we have seen examples of it—and we need to understand the implications of the Bill. I am far from alone in recognising the difficulty in defining terms such as “candour” and “public interest”. John Coggon, professor of law at the University of Bristol law school, writes:
“The public interest has no single, fixed definition. Even as a technical term of art its sense varies both for being context dependent and for being a question that may be settled by different sorts of institutional actor. It may, for instance, demand consideration of national security, national economic interest, protection of health, maintenance of a justice system, protection of fundamental rights. And determinations may be made by courts, politicians, legislators, executive agencies, and so on. Each can and will bring different forms and ranges of consideration to the process of determining what the public interest demands, and whether those demands are compelling.”
Anyone who has spent any time inside a public body—a police force, a regulator or a Government Department—knows that the public interest can mean very different things to different people. It is shaped by context, role, circumstance and sometimes professional norms. What one official believes to be in the public interest, a Minister, senior civil servant or statutory body might see very differently. That is not mere theory; it is the daily reality of modern governance.
Questions were raised during the evidence sessions about how the public interest might be used inappropriately in defence of an allegation of misconduct in public office. As new clause 2 points to, paragraph 1(8)(b) of schedule 1 specifically allows for the withholding of information in the public interest. Failing in that area could lead to both those we would wish not to be prosecuted being prosecuted and those we want to see prosecuted escaping justice. It is an important area of how the Bill will operate.
I am not so ambitious as to suggest that through the Bill the Committee will be able to create a perfect definition of public interest, but I speak in support of the new clause in an attempt to ensure that the Government recognise that they need to properly engage with that issue if the Bill is to be successful. A definition of the public interest need not be exhaustive, as I have said, but the wide-ranging ramifications of the Bill place an onus on the Government to ensure that the frontline civil servant of any kind has somewhere to look and turn to when wrestling with these matters—a starting point that might help them to structure their thinking and make decisions.
By failing to define the term at all, even in the most basic way, the Bill risks giving us a duty that is challenging to operate for a junior civil servant. It risks more uncertainty about compliance, inconsistency between institutions and even potential litigation where prosecutors or courts are left to decide after the fact what Parliament must have meant. The obvious challenging scenario is when officials need to consider situations where there are competing public interests—national security versus transparency, value for money versus speed of delivery, or personal privacy versus public accountability. Without more assistance for thinking those matters through, how does an official protect themselves from the—possibly criminal—allegation that their judgment call was not in the public interest among competing interests?
The new clause does not attempt to dictate exactly what public interest must mean; it simply requires the Secretary of State to set out a structure or framework in regulations, subject to approval by both Houses. Ultimately, if this legislation is to achieve the cultural change that the Government claim it will, the foundations must be clear and easy to understand. Public officials should not be left purely guessing what Parliament might have meant, or how we expected them to weigh these issues—Parliament should tell them. New clause 2 offers the Government the opportunity to do exactly that, and I hope they will take it.
Alex Davies-Jones
Clause 1 sets out the purpose of the Bill as a whole to ensure that public authorities and public officials perform their functions at all times with candour, transparency and frankness, and in the public interest. As the clause describes, the Bill sets out those duties in the substantive provisions that follow. The clause does not have any separate legal effect itself; it is designed to set out clearly and simply the intention behind the Bill to assist those who will be subject to it and the general public in their understanding.
I thank the hon. Member for Bexhill and Battle for tabling new clause 2, which seeks to require the Secretary of State to define exactly what is meant by the term “public interest” in clause 1. Clause 1 is a purpose clause and does not have any legal effect in and of itself, separate from the other provisions in the Bill. It sets out the intention behind the Bill, and how the Bill achieves that intention by describing the relevant provisions.
In this context, acting in the public interest means fulfilling the obligations and duties in the remainder of the Bill that arise from it; it means being candid at inquiries and investigations; and it means that those working for public authorities must adhere to the codes and ethics required by the Bill. In general, “acting in the public interest” is usually not defined in legislation, as the hon. Gentleman said. This is because what is in the public interest will depend on the circumstance and context of that particular situation. Seeking to define what it means might have the effect of narrowing what could be considered to be in the public interest.
In schedule 1, the public interest is referred to in the context of public interest immunity. Public interest immunity is an established concept in law: it is a rule of evidence where documents are withheld if their disclosure would be injurious to the public interest. What is the “public interest” will be dependent on the particular circumstances, and we should not seek to constrain this or undermine a very long-established legal doctrine that is applied by the courts. The Inquiries Act 2005 and other legislation already contain provisions of this kind to ensure that appropriate protections are attached to sensitive information, which the Bill is replicating. I hope that clarifies the purpose of clause 1 and why defining “public interest” would not be appropriate and could actually hinder proceedings.
Dr Mullan
The Minister rightly describes how tightly the courts consider these matters in detail. As the Bill puts a whole range of very junior civil servants in the firing line, does she at least accept that guidance or materials might be helpful to assist a broader audience in how they approach these issues in their day-to-day work?
Alex Davies-Jones
I welcome that intervention and the whole purpose of this legislation is to ensure exactly that. Obviously, there will be guidance in the codes of ethics that are produced, and public authorities will probably provide training for their individual public servants who will now be captured by the Bill, if, as I hope, it receives Royal Assent and becomes an Act. I am due to attend a session at the University of Liverpool to look at exactly how we can implement the Bill, should it become legislation and reach the statute book. All of that is being taken into consideration to advise everyone about what is expected of them under the duty of candour. Therefore, I urge the hon. Gentleman not to press new clause 2 to a vote, and I pledge to work with him on exactly that.
Question put and agreed to.
Clause 1 accordingly ordered to stand part of the Bill.
The Chair
This is one of those moments when, should the hon. Gentleman wish to press new clause 2 to a vote, which he may not, it would not be called now; it would be called later in the proceedings, because all new clauses are voted on at the end of the consideration of the Bill.
We come now to amendment 31. This is one of those occasions when we are debating two separate groups of amendments to clause 2. We have the choice: the clause stand part debate can take place now or at the end, but not both. Let us bear that in mind.
Clause 2
Duty of candour and assistance
Tessa Munt
I beg to move amendment 31, in clause 2, page 2, line 23, at end insert—
“(ba) their failure to act, omission, or approval or tacit approval of an action are or may be relevant to the inquiry or investigation, or”.
This amendment clarifies that an indirect wrongdoing would be considered as an occurrence of misconduct or failure when examined as part of an inquiry, investigation or inquest.
The Chair
With this it will be convenient to discuss the following:
Amendment 42, in clause 2, page 2, line 35, at end insert—
“(ca) where the authority or official has relevant records, including digital messages and communication, retain and disclose those records;”.
Amendment 32, in clause 2, page 2, line 39, at end insert—
“(f) ensure all relevant public officials can safely disclose information to an inquiry, investigation or inquest.”
This amendment requires public authorities or officials who assisting an inquiry, investigation or inquest to demonstrate that they have taken steps to ensure relevant persons can safely disclose information relevant to an investigation.
Tessa Munt
Amendment 31 would clarify that an indirect wrongdoing would be considered an occurrence of misconduct or failure when examined as part of an inquiry, investigation, inquest or independent panel. The purpose of and rationale for the amendment is that it would ensure that the Bill clearly covers situations where a public office holder has contributed to wrongdoing. I emphasise that this is about senior figures; I am not talking about junior civil servants and others who have little power. The amendment would apply where that senior public office holder has contributed to wrongdoing through not only direct action but a failure to act, such as an omission or tacit approval.
Tessa Munt
I thank the Minister. Amendment 32 would require public authorities or officials assisting an inquiry, investigation, inquest or independent panel to demonstrate that they have taken steps to ensure that relevant persons can safely disclose information relevant to that investigation. The amendment would require public authorities to take proactive steps to ensure that all relevant officials can safely disclose information. It would strengthen protections for those providing evidence, helping to prevent retaliation or intimidation, and ensure that inquiries and investigations have access to all relevant information for thorough scrutiny of public officials’ decision making.
Alex Davies-Jones
I thank the hon. Member for Wells and Mendip Hills for tabling these amendments. Amendment 31 seeks to ensure that, under the duty of candour and assistance, an inquiry or investigation, or, as she stated, a review panel, is notified by public authorities and officials of all relevant acts or information, including omissions or failures to act. We agree wholeheartedly, and I reassure the hon. Lady and all members of the Committee that the Bill already achieves the intent of the amendment.
Clause 23 provides definitions for terms used throughout the Bill. It specifies that an
“‘act’ includes an omission or a course of conduct”.
Therefore, in clause 2, “act” is to be read as including any omission or course of conduct that may be relevant, which could include approving the actions of others. To “have information” could include information that a person approved the actions of another person, or had knowledge of them and did not prevent them.
Amendment 42 would place a requirement on public authorities under the duty of candour and assistance to retain all relevant records, including digital records. Again, the Government agree with the intention behind the amendment, and believe that the provisions in the Bill are designed to achieve it in practice. Clause 2(4)(a) requires authorities and officials to provide information likely to be relevant to an inquiry or investigation if requested. They will not meet that obligation if they allow the information to be lost or destroyed when they ought to be providing it. In addition, the individual in charge of an authority has an obligation to take all reasonable steps to secure the authority’s compliance with that duty. That would necessarily involve ensuring that information is accessible within the authority, so that it can meet its obligations under the Bill.
Amendment 32 seeks to ensure that the Bill has adequate safeguards to protect those complying with the duty of candour and assistance. We agree that ensuring that public officials feel safe to disclose information is essential, and several aspects of the Bill speak to that point. The duty of candour and assistance provides appropriate safeguards for the protection of sensitive information and onward disclosure and ensures that officials can feel confident that the information they provide will be handled appropriately.
Tessa Munt
Can I ask the Minister for clarity? A lot of the proposed legislation seems to deal with when an investigation has been called for or set up. There may be a significant gap between that and when an authority knows that something has gone wrong and that an investigation, inquiry, inquest or independent panel is likely to follow. Is there is a way in which the duties can kick in the moment that somebody recognises that something will come of that rather than when an investigation is called for formally?
Alex Davies-Jones
There are two versions of the duty of candour: the always-on duty of candour by which every public servant should have to act in their everyday life, and the duty of candour with criminal sanctions attached to it that kicks in when there is an investigation or inquiry. The whole point is that they will work hand-in-hand. The former will prevent the latter—that is the intention. The code of ethics and the guidance that we talked about in an earlier debate will assist, but that will require a significant culture change across the whole public sector; it will not be easy or happen overnight. I am not naive enough to believe that it will be fixed just because we have the legislation. It will take a momentous effort by all of us to ensure that the culture seeps down from the top. That is also the intention behind the implementation, which we will come to later in the debate.
I reassure the hon. Lady that part 2 of the Bill requires public authorities to set out the process for exactly how public officials can raise internal complaints, to promote a culture of internal challenge. It also requires public authorities to set out their whistleblowing procedures, drawing officials’ attention to any legal protections they may benefit from. Although we are sympathetic to the intent behind amendment 32, we do not think that it will provide sufficient clarity on what public authorities would be expected to do to ensure that officials feel safe to disclose information, nor how that would operate as part of their duty of candour and assistance, for which non-compliance entails criminal sanctions.
Given those assurances, I urge the hon. Lady to withdraw the amendment.
Tessa Munt
The Minister has made her points. I am hopeful that we will end up with those reassurances. We will pick up these points later in the Committee. I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Seamus Logan (Aberdeenshire North and Moray East) (SNP)
I beg to move amendment 18, in clause 2, page 2, line 39, at end insert—
“(4A) Where a public authority or public official is under an obligation to respond to or assist an inquiry or investigation under subsection (4) they should do so within 30 working days.”
The Chair
With this it will be convenient to discuss the following:
Amendment 19, in clause 2, page 3, line 6, after “expeditiously” insert
“and within 30 working days”.
Clause stand part.
Amendment 20, in clause 3, page 3, line 19, leave out
“as soon as reasonably practicable”
and insert “within 30 working days”.
Seamus Logan
It is a pleasure to serve under your chairship, Sir Roger. I have a number of confessions to make. First of all, this is my first Bill Committee in my 18 months as a Member, so I am a complete novice in terms of how these procedures work—I will be guided by the Chair at all times, of course. Secondly, I am afraid that my office has been decimated by illness, so I am flying blind this morning on some of the details of these amendments. I would be grateful if one of the Clerks could provide me with a hard copy of the amendments under consideration, if possible—actually, I am sure I can get one from the table.
I welcome the Minister’s statement about working together in a collegiate way to try to ensure that the Bill is as strong as it possibly can be. I am very conscious of the evidence that we heard last week and the strength of feeling about the Bill among those affected by not only the Hillsborough tragedy, but the many different tragedies and inquiries that have occurred over the years. That is why we tabled our amendments in a collegiate way to try to strengthen the Bill. That includes these amendments, which, as I understand them—though I am flying blind—seek to replace rather loose wording with a more specific timescale. I have no prior experience of other Bills to go on, but as a mental health officer in a previous life, I know how vital it is to understand the timescales that apply to the duties that fall upon public bodies. The Bill at present—[Interruption.] I thank the right hon. Member for Liverpool Garston for bailing me out by providing me with a copy of the amendments.
The current language of the Bill is imprecise. Whenever a duty is placed upon a public authority to perform a certain duty, the legislation should specify a timescale. Notwithstanding the Minister’s advice as to how things might progress with these amendments, we have suggested a timescale of 30 days. That may not be operationally possible—I am happy to consider extending it if that is what the Minister decides—but we believe that this amendment would significantly strengthen the duty on public authorities to operationalise this Bill.
Lizzi Collinge (Morecambe and Lunesdale) (Lab)
I will speak specifically to clause 2 and the duty of candour and assistance to inquiries, but my remarks are relevant to the Bill as a whole. I want to let the Committee and anyone watching know that I will be talking about the death of a child.
I should have a six-year-old constituent called Ida Lock. She should be at school, playing with her siblings and running rings around her parents. But I do not have that six-year-old constituent, because she died in 2019 at just one week old, despite having been healthy in her mum Sarah’s womb. Ida’s death was preventable: the coroner described her death as caused by gross failures in her care. There were eight opportunities to save Ida, and after Ida’s death there were many more opportunities to make sure that what happened to her never happened again. However, the hospital trust, rather than opening its arms to the family and trying to learn from its mistakes, instead carried out a completely inadequate internal investigation and then, according to the timeline laid out by the coroner, attempted to head off further investigations. In fact, Ida’s case went to the coroner only this year, in 2025. Ida died in 2019. It went there because of the family’s persistence and for no other reason. It was not referred to the coroner, as it should have been, by the hospital trust; in fact, the trust originally graded Ida’s death as “moderate harm”.
Maria Eagle
It is a pleasure to serve under your chairmanship today, Sir Roger. I just want to say a few words on this clause about why the duty of candour and assistance is so important, and why it means so much to Hillsborough families, some of whom are my constituents. We heard from a small number of them in the evidence sessions, but there are many more who could have told equally difficult stories about their own experience.
What happened at Hillsborough was a disaster. Nobody who worked for South Yorkshire police left their homes that morning intending to cause it, but the reality is that their gross negligence and inadequate organisation did cause it. Within four and a half months, the public inquiry had identified a loss of police control as the main cause of the disaster. Had our state been operating fully and correctly, we would have recognised that as a country and that would have been the end of the matter. There would have been accountability for those failings, lessons would have been learned, and the families could have grieved for their lost loved ones and moved on with their lives.
Instead, what happened was that the South Yorkshire police, aided and abetted by the West Midlands police, set about telling a story, intent only on deflecting blame for their own failings—even though those failings were then identified within four and a half months. One can understand, perhaps, why a police force faced with that disaster would have wanted to give their side of the story and understanding of what had happened. However, once the public inquiry—within four and a half months—had made findings that excoriated the police response to the disaster, accused a senior officer of telling a disgraceful lie and said in terms that the police would have been better advised to have accepted responsibility rather than sought to put forward a different story that was not credible, one would have expected that there would have been accountability, that the truth would have been accepted by the South Yorkshire police and that there would have been no more attempts to put forward a different narrative.
That did not happen. Instead, the then inquest proceedings—the longest in British legal history at that time, taking over a year—were used in terms by the South Yorkshire police to tell a different story: to put it in the public mind that they had not been at fault, as the public inquiry had clearly found, but that it had been the fans who had attended the match who had been at fault. It had been those who died who had contributed in some way to their own deaths. It had been the survivors of that terrible disaster who had somehow caused the problem. It had been hooliganism and drunkenness—it had been ticketless fans who had forced their way into the grounds.
That is the story that the police told, aided and abetted by the media of the day, some of which behaved disgracefully and suffer for it still on Merseyside, I might say. That story was told repeatedly. It was in every newspaper and all the mini-inquests for over a year of those inquest proceedings. At the end of it, the public perception about what had happened at Hillsborough was completely different from what the public inquiry had found. It was as if the public inquiry had never happened; yet it was right in almost every aspect, and within four and a half months of the disaster.
It is now 36 years since the disaster. In our evidence sessions, we heard from some of the families about the ongoing impact of the lies that were told and the story that has been repeatedly told by South Yorkshire police and those responsible for the disaster, who have been completely unable to accept their culpability. Even as late as the second inquest, they tried again to tell that same discredited story, so the importance of this clause cannot be overemphasised. It gets to the heart of why one might wish to call this a Hillsborough law, even though that is not the Bill’s short title. It might be known colloquially as that, because the fact is that, had those public authorities had the duties provided for in clause 2, there is no way they could have undertaken that campaign of lies, disinformation and propaganda against the wholly innocent families and wholly innocent survivors of that disaster.
It is for that reason that I think it is important that the duty of candour and assistance is an essential part of the Bill. If we enact it and implement it properly without any concerns or problems, that duty is one of the things that will enable us to say that this is a Hillsborough law because, had it been in place at the time, the South Yorkshire or West Midlands police could not have engaged in the disgraceful way that they did, simply to deflect the blame on to anybody else but them—even if that hurt those who had died, the families of those who had died, or the thousands and thousands of survivors. We forget that it was not only my hon. Friend the Member for Liverpool West Derby who was at the match; thousands of people saw what happened. It was filmed and shown live on TV, so the idea that it could be distorted in the way that it has been—at great public expense and over decades—is a terrible disgrace to the way that our systems work.
If the Bill can put that right, it will have done our whole nation a service, and it will be right to call it a Hillsborough law. It will mean that those families can stop their campaigning and start to grieve and live what is left of their lives. Some 36 years on from what happened, surely they have a right to expect that.
Alex Davies-Jones
I thank the hon. Member for Aberdeenshire North and Moray East for tabling amendments 18 to 20, which would require public officials and authorities to notify and provide information to any inquiry or investigation within 30 days. The Government agree entirely that public authorities and officials should provide assistance to inquiries and investigations as quickly as possible, and the Bill requires that. Clause 2(6) requires authorities and officials to act “expeditiously” when complying with the obligations placed on them. In some cases, it will be possible for officials and authorities to provide the assistance required within 30 days, but there may be times when it is not.
There will be situations where an inquiry or investigation requires an authority to provide a very large amount of information or data, requiring it to set staff and resources aside to search through potentially thousands of documents and assess their relevance, with all the necessary checks and verification that follow. We think it is important that authorities are given sufficient time to conduct thorough searches and provide accurate information, and that the inquiry or investigation will be best placed to set a reasonable timescale for that.
The duty would also apply to former officials who may have a different job or be retired—or have resigned, as we heard earlier—and there may be situations where it is impossible for them to provide the assistance required within a 30-day time limit. Although I totally agree with the sentiment, a degree of flexibility is therefore important so that we get all the information that inquiries and investigations need. I therefore urge the hon. Member not to press his amendments, but I agree to work with him on a way forward.
I now turn to clause 2. We heard powerfully from my hon. Friend the Member for Morecambe and Lunesdale and my right hon. Friend the Member for Liverpool Garston exactly why the duty of candour in clause 2 is integral to the Bill. As has been rightly said, this is a Bill for the Hillsborough families, and it will be known colloquially as the Hillsborough law, but it is also a Bill for Ida, for the Grenfell families, for the Manchester Arena families and for anyone who has been wronged by the state.
Ian Byrne (Liverpool West Derby) (Lab)
Today, as well as this Committee, the Independent Office for Police Conduct report on Hillsborough is being published. Within that report, I think there is a recommendation that fully supports the Hillsborough law and says why, because there are officers there who would not have been. As my right hon. Friend the Member for Liverpool Garston outlined, history would have been different if those officers had been held to account by clause 2 of the Bill.
Alex Davies-Jones
I totally agree with my hon. Friend and that is exactly why the Bill is so important and integral. We have all heard the stories—the reality—of what the families, the bereaved and the survivors have been through. No one should ever have to go through that again. The intent behind clause 2 is to do just that: to ensure that no family has to go through the unimaginable again.
Clause 2 sets out the requirements of the duty of candour and assistance at inquiries and investigations; in short, what those under the duty need to do. As subsection (1) states:
“Public authorities and public officials must at all times act with candour, transparency and frankness in their dealings with inquiries and investigations.”
The duty has two stages to it. The first, in clause 2(3), is the requirement for public officials to come forward and make themselves known to an inquiry or investigation if they have reason to believe that their actions or information they hold might be relevant to it. The second, in clause 2(4), is to then provide any assistance that the inquiry or investigation requires.
Clause 2(4) lists the types of assistance that might involve—for example, drawing attention to information that is particularly significant and, for public authorities, to provide a position statement to an inquiry. The head of a public authority may be asked for information and assistance as an individual public official in their own right, where relevant, but subsection (5) places them under an additional obligation. When the authority that they manage is under the duty, they are personally required to take all reasonable steps to ensure that it complies. We believe that that is crucial to the success of the Bill and for the leaders of public authorities to feel personally accountable under the duty.
Seamus Logan
I welcome the Minister’s response. Having heard what she said about working with me about how we might operationalise the issue, I am prepared to withdraw the amendments. However, it is important to remember, in that conversation, that justice delayed is justice denied.
We have seen so many examples of inquiries and investigations that take years, when months would be much more appropriate. In the circumstances we are speaking about—in this case and the many others that this law will apply to—we must give chairs and leaders of inquiries and investigations some sense of what is reasonable when it comes to public authority responses.
We heard from the hon. Member for Morecambe and Lunesdale about the health service; I worked in it for 33 years. There is no good reason why it should not be able to respond in if not 30 then 90 days. Some backstop needs to be applied in relation to these responsibilities. I am happy to continue the conversation with the Minister and beg to ask leave withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 2 ordered to stand part of the Bill.
Schedule 1
Application of duty of candour and assistance
Mr Tom Morrison (Cheadle) (LD)
I beg to move amendment 35, in schedule 1, page 25, line 23, leave out from “direction” to the end of the sub-paragraph and insert
“should be given to a public official working for an intelligence service or the head of such a service pursuant to section 2(4) and section 2(5) of the Public Office (Accountability) Act 2025 as applicable to any other public authority, but may not be given to any other public official if it would require the official to provide information relating to security or intelligence, within the meaning of section 1(9) of the Official Secrets Act 1989, and any such public official is not required to provide any such information in response to a direction given in breach of this sub-paragraph.”
See Amendment 38.
The Chair
With this it will be convenient to discuss the following:
Amendment 36, in schedule 1, page 28, line 38, leave out from “direction” to the end of the sub-paragraph and insert
“should be given to a public official working for an intelligence service or the head of such a service pursuant to section 2(4) and section 2(5) of the Public Office (Accountability) Act 2025 as applicable to any other public authority, but may not be given to any other public official if it would require the official to provide information relating to security or intelligence, within the meaning of section 1(9) of the Official Secrets Act 1989, and any such public official is not required to provide any such information in response to a direction given in breach of this sub-paragraph.”
See Amendment 38.
Amendment 37, in schedule 1, page 31, line 34, leave out from “direction” to the end of the sub-paragraph and insert
“should be given to a public official working for an intelligence service or the head of such a service pursuant to section 2(4) and section 2(5) of the Public Office (Accountability) Act 2025 as applicable to any other public authority, but may not be given to any other public official if it would require the official to provide information relating to security or intelligence, within the meaning of section 1(9) of the Official Secrets Act 1989, and any such public official is not required to provide any such information in response to a direction given in breach of this sub-paragraph.”
See Amendment 38.
Amendment 38, in schedule 1, page 34, line 15, leave out from “direction” to the end of the sub-paragraph and insert
“should be given to a public official working for an intelligence service or the head of such a service pursuant to section 2(4) and section 2(5) of the Public Office (Accountability) Act 2025 as applicable to any other public authority, but may not be given to any other public official if it would require the official to provide information relating to security or intelligence, within the meaning of section 1(9) of the Official Secrets Act 1989, and any such public official is not required to provide any such information in response to a direction given in breach of this sub-paragraph.”
Amendments 35 to 38 would extend the application of the duty of candour and assistance to the intelligence services but would disapply it to individual officers.
Mr Morrison
It is an honour to serve under your chairship, Sir Roger. These amendments do nothing more than fix something in the current draft of the Bill, which seems inadvertently to have carved out the security services—an area that could be strengthened, as we heard during the evidence session last week. The amendments seek to extend the duty of candour and assistance to the intelligence services as organisations, ensuring that they as bodies are required to be open and co-operative with the inquiries and any investigations. The amendment balances accountability with national security, by stating that direction will not be given to public officials
“if it would require the official to provide information relating to security or intelligence”.
Several of our witnesses last week gave evidence that laid out various examples of how the security services had failed to be fully candid, disregarded accountability, and, at times, misled inquiries. We also know that the Government assured campaigners, Members and other interested parties that there would be no carve-out for the security services in the Bill. The security services do an incredible job in keeping us safe and ensuring that our country’s interests are protected. It is right that their work is covered by the secrecy Act; no one wishes to change that. However, because of that power they should be held to highest standards of accountability. We know that in recent history that has not been the case.
Last week we heard from Pete Weatherby, who, as well as working with the Hillsborough families, supported several families impacted by the Manchester Arena bombing. He said:
“There was a major failure of the intelligence services and the way they dealt with the aftermath of the bombing…MI5 then put an incorrect narrative—a false narrative—to the inquiry itself. The judge, the chair of the inquiry, found that the corporate case that it had put was incorrect.”––[Official Report, Public Office (Accountability) Public Bill Committee, 27 November 2025; c. 6, Q3.]
The amendment would ensure, as much as any law can, that that could not happen again, by explicitly ensuring that the security services are accountable to this Bill and therefore to a public who willingly consent to how these organisations work to protect us and our country. This amendment would not endanger national security. It would not impact the way in which some evidence is required to be provided in closed sessions. It would provide the security services with the necessary safeguards to ensure that secret and classified information is protected.
This is what happens now. We heard from the journalist Daniel De Simone, who worked on the agent X story, where the security services tried to mislead and were found out. His testimony stated:
“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.”––[Official Report, Public Office (Accountability) Public Bill Committee, 27 November 2025; c. 95, Q138.]
Because of that, it is vital that we do not allow any carving out, intentional or otherwise, of the security services, to ensure that they, too, are held to account and must tell the truth. That will strengthen not only their work, but the trust that we place in them.
Dr Mullan
I emphasise that we need clarity on this. Those of us who were able to attend the meeting with the intelligence services will know that they seemed to provide quite a clear account of their individual personal responsibility and all the ways in which they thought the Bill would affect them. That was quite clearly contradicted in our evidence from other witnesses. I am grateful to the Minister for sending round a further note to Committee members this morning, and for our brief chat ahead of this sitting. Even that note raises further contradictions, however, because it says, and I quote, that “the individual public officials working for the UK intelligence services are capable of being caught by the offence of failing to comply with the duty of candour”. It lists some other ones, but it includes the duty of candour. Further down, it says, “the Bill specifies that the duty of candour and assistance can only be addressed to public authorities and not individual public officials”.
The Minister was able to give me a brief, informal explanation of that, but I do think this is extremely important. It may be that people are happy for the security services to be excluded to a certain extent, but we have to vote on a shared understanding of what exactly the Bill does in relation to them as entire organisations, as well as to the people who work for them and those who are in charge. I would be grateful if the Minister provided some clarity on that.
Alex Davies-Jones
I thank hon. Members for raising those important points. In this Bill, we have aimed to ensure candour while protecting national security. As it stands, inquiries and investigations will be able to demand any information and assistance they require from the intelligence services. Where national security information is concerned, the agency as a whole will provide that assistance to the inquiry or investigation by complying with a compliance direction, rather than individuals directly in their own right.
To balance that, and to ensure that there are no gaps, carve-outs or exclusions, those in charge of the agencies are subject to specific requirements to put arrangements in place for individuals to maintain records of information relating to any acts that may be relevant to an inquiry or investigation, and to provide information to the authority to ensure that the duty is complied with as set out in clause 6. Rightly, a failure to have these arrangements in place will result in criminal sanctions.
Intelligence services obtain and retain sensitive security and intelligence information in order to protect the public from national security threats. Vital public interests, including national security, would be at real risk of harm from the unrestricted disclosure of this sensitive information. We all share the same aims here—ensuring that candour is in place while protecting national security and the public.
Taking on board the points raised by Hillsborough Law Now and others, we constructed clause 6 in such a way as to ensure that there is a secure process that the intelligence services can work through so that any information required by an inquiry or investigation reaches that place safely, so that there can be full candour. However, we have heard the concerns from Hillsborough Law Now and from members of this Committee about our provisions. I assure hon. Members that the Government have taken their points on board, and we will commit to working with them and others actively to consider steps to address this in time for Report.
I turn to the other amendments, which set out that the intelligence authorities are to be listed as a public authority for the purposes of the duty of candour and assistance, and the code of ethical conduct in schedule 2. Clause 6 already makes it clear that the duty applies to the intelligence services as it applies to all other public authorities; therefore, it is beyond doubt that they are included, as a public authority, in the Bill.
We have not set out an exhaustive list of public authorities in schedule 2 to avoid unintentionally excluding some bodies by failing to list them. No individual Department or arm’s length body of central Government is included in the list for that purpose. If we begin to list public bodies, there is a risk that we imply that those not listed are not covered, which could weaken the Bill. I urge the hon. Member for Cheadle to withdraw his amendment, but I reiterate my commitment to working with Members on a way forward to capture all the concerns raised both in the Committee and outside of it.
Mr Morrison
I thank the shadow Minister for the points that he made; he is spot on that the lack of clarity in the Bill, particularly surrounding what came out of the evidence sessions, raises more questions than answers. However, I am pleased that the Minister has said that the Government are happy to work with us on tightening those gaps before Report. This is not about unrestricted evidence; it is about getting to the truth, which must be our focus throughout. I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Dr Mullan
I beg to move amendment 3, in schedule 1, page 26, line 30, at end insert—
“(1A) Inquiries under subsection (1) include those designated by the Secretary of State as local inquiries into grooming gangs.”
This amendment would apply the Duty of Candour to the five local grooming gangs’ inquiries announced by the Government and any further ones established.
The Chair
With this it will be convenient to discuss amendment 1, in schedule 1, page 29, line 9, after “an inquiry” insert
“, independent panel or review established by a Minister”.
This amendment ensures that the statutory duty of candour and assistance extends automatically to independent panels and reviews established by Ministers of the Crown.
Dr Mullan
I rise to speak to amendment 3, and I also welcome the intention behind amendment 1. Amendment 3 relates to the scope of the duty of candour as it applies to non-statutory inquiries. Members will know that the Bill does not just impose a duty of candour on public bodies in major statutory inquiries that are set up under the Inquiries Act 2005; it allows Ministers to apply that same duty to non-statutory inquiries—or inquiries that, for various sensible reasons, may not require the full statutory machinery but none the less investigate matters of profound public concern.
Paragraph 2 of schedule 1 sets out the conditions under which a non-statutory inquiry may fall within the Bill: it must be initiated by a Minister; it must be intended to produce a published report; and the Minister must certify that the events in question have caused, or are capable of causing, public concern. That is a broadly drawn but important framework. However, there is a real risk that some of the most sensitive, complex and deeply distressing inquiries currently being established will fall entirely outside this regime.
I refer specifically to the local grooming gangs inquiries announced by the Government. These inquiries were promised to victims, survivors and affected communities as part of the commitment to shine a light on failures by public agencies over many decades to protect vulnerable children. They will be examining events that could not be more clearly connected to public concern and public confidence. Unless they are expressly captured by the Bill, however, the public bodies involved will not necessarily be subject to the statutory duty of candour that the Bill intends to deliver; it will be left to the whims of the Government of the day. Given the chequered history of this Administration, that is not a position that we would want to be left in, and it is not a position that many victims would want to be left in.
The amendment is therefore designed to remove any doubt by making it clear that the non-statutory inquiries designated by the Secretary of State as local grooming gang inquiries fall squarely within paragraph 2. It is a simply, clarifying amendment that protects victims, the integrity of the process and the public from the possibility of these inquiries falling into a grey area.
It is worth reminding the Committee why this matters. Across multiple towns and cities, victims were failed because agencies did not share information, confront uncomfortable truths and, in some cases, tell the public the full story. A duty of candour is not a mere formality in this context; it is an essential means by which we ensure that the same patterns of silence, defensiveness and institutional self-protection do not re-emerge.
If the Bill’s purpose is to raise standards in public life, to restore trust and to ensure openness in the face of institutional wrongdoing, surely these inquires—the very ones where a failure of candour has had the most devastating impacts—must be included explicitly. The Government may well argue that the wording already allows these inquiries to be covered. If that is the case, there is no harm in making it clear. If it is not the case, there is every reason for us to fix that today.
This amendment is not partisan. We heard from Mayor Burnham about his direct experience of a local grooming gang inquiry that lacked a duty of candour, and how he felt the inquiry would have benefited enormously from one. He supported our amendment to ensure that all other local inquiries would be subject to such a duty once the Bill became law.
The timing may not be perfect, but given the speed with which the Government seek to proceed with the Bill, and the positive impact it could have even now if public officials knew that this was incoming, I cannot see any reason why the Government would oppose the measure. It is straightforward and would ensure that when victims and survivors are told that lessons will be learned, we will do everything possible to guarantee that that is done honestly, fully and transparently by ensuring that inquiries have all the information they need.
Amendment 1—I believe this was touched on earlier, in relation to panels and what will fully constitute inclusion in the Bill—is helpful to ensure that when a Minister commissions one of these important panels, it is not simply left to them to decide whether it suits them to include the duty of candour. I therefore welcome that amendment.
Maria Eagle
I rise to support amendment 1, tabled by my hon. Friend the Member for Bolton South and Walkden (Yasmin Qureshi), and supported by several other hon. Members, both on the Committee and outside it.
The amendment would ensure that the Bill’s duty of candour and duty to assist apply automatically to independent panels and reviews established by a Minister of the Crown. It makes a simple and technical addition to schedule 1 and, as it has been accepted, is within the scope of the Bill and does not therefore extend it. Hon. Members know that I have a particular interest in independent panels, but the amendment simply seeks to apply the duty of candour and assistance to independent panels that Ministers can set up at any time if they so wish. It would be an anomaly for it not to be included, particularly given that independent panels are becoming a more common way of trying to get to the truth about somewhat complex events.
Hon. Members may be aware that my hon. Friend the Member for Bolton South and Walkden is chair of the all-party parliamentary group on Primodos. I, too, have constituents who have been affected by Primodos. I think there was a particular penchant in the north-west for prescribing it as an oral pregnancy test. It was not a drug or a treatment as such; it was a diagnostic test to see whether someone was pregnant. There seems to have been a lot of it prescribed in the north-west of England.
Since the 1960s and 1970s, there have been campaigns to try to find out whether—and, latterly, to try to get it accepted that—Primodos, an oral hormone pregnancy test, caused life-changing and devastating congenital abnormalities, stillbirths and miscarriages. I have constituents who have been affected, both those whose children are still alive and those whose children are not. The all-party group has been campaigning for many years, under my hon. Friend’s chairmanship, to get some resolution for those families.
The all-party group has conducted investigations. There have been failed legal actions against the manufacturers of Primodos. In 2017, the Medicines and Healthcare products Regulatory Agency expert working group gave rise to great hope that there might be a way forward for those affected, but that was a disappointment. In fact, I think that if my hon. Friend the Member for Bolton South and Walkden were moving this amendment, she would say that it was quite clear that key evidence was minimised or discarded, that families were excluded from those considerations and that the conclusions appeared to go further than the remit that the working group was given.
Ian Byrne
I want to put on record our thanks to Marie Lyon for all the work that she has done. She outlined exactly what my right hon. Friend has said about that report, and the families’ disappointment about the lack of a duty of candour. I therefore fully support the proposal.
Maria Eagle
I know Marie Lyon; I have met her on a number of occasions because I have constituents who are affected. She runs the Association for Children Damaged by Hormone Pregnancy Tests, and she has been the mainstay of the campaign, which has been going on since 1978, to try and get some resolution for these matters. I am happy to support my hon. Friend’s thanks to her.
One thing that could assist those families in respect of Primodos is an independent panel, which would go much further than the Medicines and Healthcare products Regulatory Agency expert working group, and which would collect documents and approach the issue from a transparency point of view. Given that the families’ attempted legal actions have not succeeded, that seems to me a likely next way forward. But the reality is that if the Bill comes into force and independent panels are not specifically included, those families may feel as though they are in a disadvantageous position. It is on that basis that I seek to move amendment 1.
The Chair
The right hon. Lady will understand that amendment 1 will not be moved now; it will be taken when the schedule is reached at the end of the Bill. At that point she will need to indicate if she wishes to press it to a Division.
Tessa Munt
I rise to support amendment 3, proposed by the hon. Member for Bexhill and Battle. I am also a co-signatory of amendment 1, and I thank the right hon. Member for Liverpool Garston for her reference to it. I echo the comments that have been made about Primodos and many other things. We have investigations, inquiries, inquests, and independent panels—and no doubt something else will come up at some point. Will the Minister clarify that point and agree that we should have some common language to cover all those things? As has been mentioned, independent panels do come up quite often.
I seek clarity on investigations and inquiries that might be taking place already. My understanding is that the Bill will not affect them, so if someone has something that they want to raise, they will probably need to wait until the Bill has become law. That seems slightly perverse, in that there may be people who want something done within the next six months who are going to have to sit and wait. I would like some clarity on that.
Alex Davies-Jones
I thank hon. Members for a useful debate getting into the detail the provisions—that is why we have Bill Committees. It would be beneficial for me to clarify exactly how the Bill applies to non-statutory inquiries, as outlined by my right hon. Friend the Member for Liverpool Garston. The duty of candour and assistance will apply to all statutory and non-statutory inquiries and inquests described in schedule 1. Non-statutory inquiries are defined as those caused by a Minister; those that include the delivery of a report with a view to publication; and those that the Minister has confirmed in writing relate to matters of public concern.
This is the first time non-statutory inquiries have been set out in law, but we envisage that this category could include investigations held under other names, such as independent panels, provided the criteria set out are met. Amendment 1 would automatically extend the duty of candour and assistance to independent panels and reviews established by Ministers. The Bill includes a power to extend the duty to other categories of investigations, or to specific investigations via secondary legislation. It is therefore not the case that if an investigation is not covered in the Bill, the duty of candour can never apply.
Tessa Munt
To give an example, if the local authority children’s services department sets up an investigation into something or does one of its serious case reviews—or whatever they are called now—are that organisation, the people within it and the actors in the event that prompted it covered by the duty of candour? Can the Minister be really clear about that?
Alex Davies-Jones
I am happy to confirm that they will be. They are not currently, but the Government are tabling an amendment to cover that point, and we will come to it later in Committee. Should that amendment be made, the Bill will cover those local authority investigations.
The Cabinet Office is undertaking further work to look at how we reform inquiries. As part of that, we will consider how the different types of inquiries, reviews and investigations could be more clearly defined, and when and how they could best be used. That will inform how the duty is used.
The duty of candour and assistance is a powerful tool to ensure co-operation with investigations, but it would not be useful in all circumstances. Most reviews focus on matters of policy or technical issues— for example, the curriculum and assessment review, the net zero review and the review of the future of women’s football. In those cases, applying the duty would be unnecessary and might risk making reviews more difficult to establish and slower to report. Where the duty is applied, it must be properly monitored and enforced, and therefore frameworks for compliance and the protection of information need to be in place. We must avoid unintentionally impeding or delaying certain types of investigations by introducing unnecessary and unhelpful processes and bureaucracy. We therefore think the Bill strikes the right balance in which investigations it applies to, with the power in the Bill providing us with the tools and flexibility we need to extend the duty where it could be useful.
I have spoken to my hon. Friend the Member for Bolton South and Walkden about how we move forward with her campaign. She has been an incredible and ferocious campaigner for the Primodos families for many years. I have met her and the Primodos families, and I am committed to working with her on a way forward to ensure that the duty of candour can assist.
Amendment 3 is designed to apply the duty of candour and assistance to inquiries that the Secretary of State has designated as local inquiries into grooming gangs. I thank the shadow Minister for raising this important issue. As he will be aware, we are moving at pace to establish a national inquiry into grooming gangs under the Inquiries Act 2005. It will be overseen by an independent commission with statutory powers to compel evidence and testimony so that institutions can be held to account for current and historic failures. The inquiry will be independent of Government and designed to command the confidence of victims and survivors and the wider public.
The Bill already applies the duty to statutory and non-statutory inquiries called by Ministers, including this new inquiry. To strengthen the Bill, we have also tabled an amendment extending the duty to inquiries called by local authorities, and we will debate that shortly. That amendment, combined with the existing provisions in the Bill, will enable the duty to apply to either local or national inquiries into grooming gangs. I therefore urge the shadow Minister to withdraw his amendment.
Dr Mullan
On amendment 1, I accept the Government’s intention to clarify further how these things will operate. On panels and non-statutory inquiries, although there is sometimes in Government a resistance to public inquiries for the wrong reasons, sometimes it is because they are expensive and time-consuming. The real opportunity for applying the duty of candour more widely is that if we can ensure that non-public inquiries get all the information they need, they are much more likely to be successful, thereby avoiding a future public inquiry with all the associated costs that lawyers make a huge amount of money from.
On amendment 3, although the Minister outlined the future public inquiry, the local inquiries have not been cancelled. There is clearly a view that they must also proceed. I cannot see any reason why we would not want them to proceed on the basis that they are subject to the duty of candour.
Alex Davies-Jones
I am happy to reassure the shadow Minister that, should the Bill receive Royal Assent, its provisions will apply immediately to ongoing investigations and inquiries. That includes local inquiries, if we pass the amendment that the Government have tabled. We cannot allow that currently, because the Bill has not become law, but once it has done, it will cover existing ongoing inquiries and investigations and those that are yet to commence.
Alex Davies-Jones
I beg to move amendment 6, in schedule 1, page 27, line 29, after “applies” insert
“by virtue of this paragraph”.
This amendment is consequential on amendment 7.
Alex Davies-Jones
As I stated previously, the Government have committed to only strengthening this Bill as it moves through Parliament. That is exactly what this group of amendments does. Provision of 2005 Act Extent of application Section 17(1) and (2) (evidence and procedure) Apply only in relation to procedure and conduct of inquiry so far as relating to requirements imposed under the duty of candour and assistance Sections 19 and 20 (restrictions on public access etc) Apply only in relation to restrictions imposed in respect of evidence etc given in compliance with the duty of candour and assistance Section 21(3) to (5) (contents of, and challenges to, notices) Apply to a compliance direction as they apply to a notice under section 21 of the 2005 Act Section 22(1) (privileged information etc) Applies in respect of evidence etc given under the duty of candour and assistance as it applies to evidence etc given under section 21 of the 2005 Act Section 22(2) (public interest immunity) Applies only in relation to evidence or documents that would otherwise be required to be produced under the duty of candour and assistance Section 36 (enforcement by High Court or Court of Session) Applies to a failure to comply etc with a compliance direction as it applies to a failure etc to comply with a notice under section 21 of the 2005 Act.
Before I move on, I want to say how severely disappointed I am that the Opposition pressed the previous amendment to a vote, given my assurances that those types of investigations and inquiries will of course be covered by the Bill. That seemed to fly in the face of the statements at the beginning of the Committee sitting, where we said that we would not play party politics with the Bill. It seems, sadly, that the Opposition do not have the same ambition in mind.
Amendment 7 extends the duty of candour and assistance to apply to local authorities and local authority inquiries into serious incidents called by combined, unitary, borough, county and district councils. We have prepared the amendment with previous local inquiries firmly in mind, such as the Kerslake review into the preparedness for and emergency response to the Manchester Arena attack and local grooming gangs inquiries. It would also cover the Edinburgh tram corruption inquiry mentioned by the Mayor of Greater Manchester in oral evidence.
For the duty to apply, inquiries must relate to matters in the local authority’s area and that are within a local authority’s competence or control. There must also have been a significant risk of causing death or serious physical or psychological harm to one or more persons or substantial economic loss to one or more persons as a result of conduct involving dishonesty, impropriety or a serious breach of ethical or professional standards. That ensures incidents that have caused a significant risk to life or corruption are rightfully brought into scope, with the appropriate threshold in place to avoid unintended pressures and inappropriate use.
The rest of the amendment replicates the provisions set out for statutory and non-statutory inquiries in part 1 and part 2 of schedule 1. Amendments 6 and 4 are consequential on amendment 7.
Amendment 6 agreed to.
Amendment made: 7, in schedule 1, page 30, line 18, at end insert—
“Part 2A
Local authority inquiries
3A (1) This paragraph applies where—
(a) a local authority in England has caused an inquiry (however described) to be established,
(b) the terms of reference of the inquiry do not require it to determine any fact, or make any recommendation, that is not wholly or primarily concerned with a local authority matter,
(c) the inquiry’s functions include the delivery of a report to the authority with a view to its publication, and
(d) the authority has given written confirmation to the person leading the inquiry (“the chair”) that it appears to the authority that the inquiry is established in connection with an event or series of events in respect of which the condition in sub-paragraph (2) is met.
(2) The condition is that the event (or series of events) caused, or created a significant risk of causing
(a) death or serious physical or psychological harm, or
(b) substantial economic loss to one or more persons as a result of conduct involving dishonesty, impropriety or a serious breach of ethical or professional standards.
(3) As soon as reasonably practicable after the start of the inquiry, the chair must (subject to sub-paragraph (11)) give a compliance direction—
(a) to a public authority or public official, or
(b) to a person who had a relevant public responsibility in connection with an incident to which the inquiry relates,
if it appears to the chair that the person’s acts are or may be relevant to the inquiry or that they otherwise have information likely to be relevant.
(4) Sub-paragraph (3) does not limit the power of the chair to give a compliance direction at any other time during the course of the inquiry.
(5) Where a compliance direction is given to a public authority or body within sub-paragraph (3)(b), a compliance direction must also be given to the individual appearing to the chair to be in charge of that authority or body.
(6) A “compliance direction” is a direction to comply with the obligations under the duty of candour and assistance imposed by—
(a) section 2(4), and
(b) in the case of a direction given to an individual under sub-paragraph (5), section 2(5).
(7) A compliance direction—
(a) must be given in writing;
(b) must set out the terms of reference of the inquiry;
(c) may specify particular requirements to be complied with (and for that purpose may specify the form and manner in which, and the period within which, those requirements are to be complied with);
(d) may be varied, supplemented or revoked by the giving of a further direction.
(8) In determining the objectives of the inquiry for the purposes of complying with the duty of candour and assistance under section 2(4), regard is to be had (in particular) to the terms of reference as set out in the compliance direction.
(9) The reference to a report in sub-paragraph (1)(c) is to a report that sets out—
(a) the facts determined by the chair, and
(b) the recommendations of the chair (where the purposes of the inquiry include the making of recommendations).
(10) The provisions of the Inquiries Act 2005 (“the 2005 Act”) listed in the first column of the Table apply, to the extent specified in the corresponding entry in the second column, to an inquiry in relation to which the duty of candour and assistance applies by virtue of this paragraph as they apply to an inquiry under the 2005 Act—
(11) A compliance direction—
(a) may be given only—
(i) in respect of evidence, documents or other things that are wholly or primarily concerned with a local authority matter, or
(ii) for the purpose of inquiring into something that is wholly or primarily a local authority matter;
(b) may not be given so as to require any evidence, document or other thing to be given, produced or provided by or on behalf of His Majesty’s Government in the United Kingdom, the Scottish Ministers, the Welsh Ministers or a Northern Ireland Minister (including the First Minister and the deputy First Minister acting jointly);
(c) may not be given to a public official if it would require the official to provide information relating to security or intelligence, within the meaning given by section 1(9) of the Official Secrets Act 1989, and a public official is not required to provide any such information in response to a direction given in breach of this prohibition (but this paragraph otherwise applies to an intelligence service as it applies to other public authorities).
(12) A person ceases to be subject to the duty of candour and assistance when the inquiry to which it relates comes to an end.
(13) In determining when an inquiry established by a local authority comes to an end for the purposes of sub-paragraph (12), section 14 of the Inquiries Act 2005 applies as it applies to an inquiry under that Act as if—
(a) references in that section to the Minister were to the authority, and
(b) subsection (4)(b) of that section were omitted.
(14) In this paragraph—
(a) references to a local authority in England do not include a parish council;
(b) references to a “local authority matter”, in relation to a local authority, are to any matter—
(i) which relates to the area of the authority, and
(ii) in respect of which the authority exercises functions;
(c) “terms of reference”, in relation to an inquiry established by a local authority, means—
(i) the matters to which the inquiry relates;
(ii) any particular matters as to which the chair is to determine the facts;
(iii) whether the chair is to make recommendations;
(iv) any other matters relating to the scope of the inquiry that the local authority may specify;
(d) the reference to a person who had a relevant public responsibility in connection with an incident is to be read in accordance with section 4.
(15) Paragraph 3 applies to a compliance direction given under this paragraph as it applies to a compliance direction given under paragraph 2.”
This amendment extends the duty of candour and assistance, and the related power to give compliance directions, so as to include certain local authority inquiries in England.
Alex Davies-Jones
I beg to move amendment 8, in schedule 1, page 30, line 33, after “of the” insert “senior”.
This is a drafting refinement.
The Chair
With this it will be convenient to discuss the following:
Government amendments 9 and 10.
Schedule 1.
Alex Davies-Jones
These three amendments are minor and technical. Government amendments 8 and 9 update schedule 1 to refer to a “senior coroner”, thereby identifying the statutory office for consistency with the Coroners and Justice Act 2009 and other legislation. Government amendment 10 replaces a reference to this “Schedule” in schedule 1, paragraph 4 with a reference to this “paragraph”. This is a drafting refinement to clarify that the definitions in new paragraph 2A of schedule 5 of the Coroners and Justice Act 2009 apply only to that paragraph rather than to the entirety of schedule 5. I commend these amendments to the committee.
Tessa Munt
Might I seek some clarity on what happens with area coroners as opposed to senior coroners?
Alex Davies-Jones
I can confirm that an area coroner, for the sake of the Bill and under the Coroners Act, is classed as a senior coroner.
Amendment 8 agreed to.
Amendments made: 9, in schedule 1, page 30, line 38, after “to the” insert “senior”.
This is a drafting refinement.
Amendment 10, in schedule 1, page 32, line 1, leave out “Schedule” and insert “paragraph”.—(Alex Davies-Jones.)
This is a drafting refinement.
Schedule 1, as amended, agreed to.
Clause 3
Section 2: further provision
Question proposed, That the clause stand part of the Bill.
Alex Davies-Jones
Clause 3 works alongside clause 2 in making some more detailed provisions about the operation of the duty of candour and assistance at inquiries and investigations to ensure that they are practical, effective and proportionate. Clause 3(2) provides important flexibility for inquiries and investigations to alter or disapply the requirement for public officials and authorities to notify the inquiry or investigation if they have reason to believe they are relevant.
There may be situations where the requirement would be impractical or unhelpful for the inquiry itself. Clearly, it would have been impractical for every single NHS worker involved in the response to the pandemic to notify the covid-19 inquiry of their possible relevance, or an inquiry may wish to hear from those relevant to different subjects at different times and in different stages. Clause 3(3) reinforces clause 2 by requiring public officials and authorities to notify inquiries and investigations of their potential relevance as soon as is reasonably practicable. Subsections (4), (5), and (6) attach some procedure to the duty to make it practical, which schedule 1 builds on.
Inquiries and investigations will specify the assistance they require and what are called compliance directions in schedule 1. These give control to the inquiry or investigation to set out the assistance they actually require, and provide important clarity for those under the duty, so they know exactly what is expected of them. Clause 2 sets an expectation that public authorities will provide a position statement at inquiries. Such statements, made early on in proceedings can help inquiries to identify the key issues to investigate and to home in on the points of contention. In most cases, we expect these to be useful, but subsections (5) and (6) give inquiries the discretion to disapply that requirement if it would be contrary to the efficiency and effectiveness of the inquiry.
Seamus Logan
Could the Minister give an example to the Committee of such a circumstance?
Alex Davies-Jones
Yes, of course. I have mentioned the covid-19 inquiry—it would have been impractical for every single worker to come forward to an inquiry—but I add that the chair of an inquiry must give reasons, publishing them and outlining why it would not be practical, or not helpful to the inquiry, not to bring forward a position statement.
Subsection (7) is vital to ensure that the duty of candour does not cut across existing laws, such as those on data protection or safeguarding.
Question put and agreed to.
Clause 3 accordingly ordered to stand part of the Bill.
Clause 4
Extension of duty to other persons with public responsibilities
Tessa Munt
I beg to move amendment 29, in clause 4, page 4, line 19, after “authority” insert—
“or any sub-contractor in any chain of provision to a service provider”.
This amendment ensures that any person involved in providing a service to a service provider which was subcontracted will fall under the duty to comply with the duty of candour and assistance to an inquiry or investigation.
Tessa Munt
I am delighted to have got to this bit. I speak to this clause in particular, because I am extremely concerned that the duty of candour should capture subcontractors and the contractors to subcontractors. It is unbelievably common for those committed to carrying out contracts with local authorities, Government or public bodies generally to subcontract and subcontract and subcontract. There is absolutely no reason why those organisations and the people involved should not fall under the duty—those people are often the whistleblowers who tell the primary organisation, or their own, what it is that they have seen. I feel strongly that we should ensure that any person involved in providing a service to a service provider, where there is subcontracting in place, should comply with the duty of candour and assistance to an inquiry, investigation or all the other panels and various things that we have referred to this morning.
The duty should apply not only to the primary service provider, but to the subcontractors, whether individuals or organisations. That would close a potential accountability gap by making it clear that all parties involved in providing a service must co-operate fully with inquiries, investigations and panels. It would help to ensure that relevant information is not withheld purely due to contractual arrangement. That would support comprehensive scrutiny of decisions, actions, omissions and service delivery.
Dr Mullan
I rise briefly to support the amendment and the points made by the hon. Member for Wells and Mendip Hills. It is about not just existing contractual arrangements, but how there might be perverse incentives for people to create different structures if they think that, through contracting or subcontracting, they will escape the accountability under the Bill. I am keen to hear from the Minister.
Probably the example that everyone has in mind is the Post Office scandal. That was a direct contractor, but it could have had subcontractors and so on. When the Post Office was conducting its private investigations, it might have used subcontractors to do some of those investigations. That would not be an unusual step for an organisation to take, so it is important that we get clarity on this issue.
Alex Davies-Jones
I thank hon. Members for their contributions. The amendment would apply the duty of candour to subcontractors as well as contractors of a public authority, as has been outlined. In the Bill, we have sought to extend the duty into the private sector in a manner that is proportionate and effective. The focus is, and must be, public authorities and public officials—those whose role is to serve the public. That has to be the starting point. The Bill then extends the obligations of the duty of candour and assistance to private bodies and individuals that either had a statutory health and safety obligation in connection with the incident under investigation or were a contractor to a public authority and, in that capacity, had a significant impact on members of the public in connection with the incident. As we have heard, these provisions are designed to capture the equivalents of Fujitsu in the Post Office inquiry.
Alex Davies-Jones
I welcome that intervention. As I have stated, if there was a statutory health and safety obligation in connection with an incident under investigation, then, yes, those individuals would be captured by the Bill.
Alex Davies-Jones
If there had been an investigation or inquiry into that then, yes, it would.
Subcontractors are one or more stages removed. They are responsible to the main or another contractor. Where relevant, we would expect a main contractor to account for the performance and actions of a subcontractor and be candid in doing so. Statutory inquiries and inquests already have the ability to compel evidence from such persons if necessary. Therefore, on balance, we do not think it necessary or proportionate to extend the duty to all subcontractors. I therefore urge the hon. Member to withdraw the amendment.
Tessa Munt
If subcontractors get contracted and know that they are working for a local authority or Government body, they just need to pass on that responsibility within the contractual terms. The difficulty comes the moment there is separation between the organisation that is subject to duty of candour and a subcontractor of a subcontractor. It is not difficult—we do these things with payment terms—so I plead with the Minister to make sure that we cover subcontractors. It will not be satisfactory for a subcontractor at tier 1 to speak for a subcontractor at tier 3. It will not happen. It will not be robust enough. I foresee all sorts of slippage, especially when there are whistleblowers two or three tiers down the contract. I plead with the Minister again to reconsider what she is saying.
Secondly, what happens when the senior body—the overarching organisation—is abroad? If I may use an example, Wessex Water—I am not picking on them for any particular reason—is owned by Pennon Group, which I understand is Malaysian. What happens when the head office is abroad?
Alex Davies-Jones
I am happy to pick up both those points. On the first point, I will work with the hon. Lady to ensure that we find a way forward in terms of ensuring that there is no unintended gap and that we are not missing anything. A balance has to be struck between how far we go in the private sector before we are covering everybody with a duty of candour. However, we can find a way forward here.
Ian Byrne
That is a hugely important intervention. In Grenfell, many subcontractors did not fall under the scope. It is a real concern that we need to look at before Report to make sure that subcontractors are in scope. This is all about a change of culture. We need a change of culture within the building industry.
Alex Davies-Jones
I agree. I am committed to working with hon. Members on a way forward.
On the point made by the hon. Member for Wells and Mendip Hills about what happens if the head office is abroad, the Bill will provide the inquiry or investigation with the powers to obtain information from an individual wherever they are, even if they have retired, if they have resigned or if they now live abroad.
Tessa Munt
On the basis that we can all work together to make sure that we cover subcontractors, including the different tiers of subcontracting, I am happy to withdraw the amendment. I was going to press it to a vote, but the Minister has assured me that she will try to do something before Report and I recognise that we have support on both sides of the Committee. I thank the Minister very much indeed. I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 4 ordered to stand part of the Bill.
Clause 5
Offence of failing to comply with duty
Ian Byrne
I beg to move amendment 54, in clause 5, page 5, line 18, after “objectives” insert:
“or are reckless as to whether it will do so,”.
This is simply a strengthening amendment that has come from the lawyers, and which I hope the Government will take on board. It is worth pointing out that we only have one shot at this. We need to ensure that there is no unfortunate language that perhaps does not allow the Bill to be as strong as we need it to be, so I hope the Government will accept the amendment.
The current wording in clause 5(1) sets the mental element of failing to discharge the duty as intent, and the mental elements of failing to provide the information in the duty as intent or recklessness—being cognisant of the risk and choosing to take it nevertheless. We feel, and I certainly feel, that this is a baseless distinction and an anomaly. The mental element should be the same, and the amendment would rectify that. It is simply a strengthening amendment to make sure that we shut any gaps.
Alex Davies-Jones
I sincerely thank my hon. Friend for his amendment, which seeks to lower the mental standard threshold from intent to include recklessness for the purposes of the offence of failing to comply with the duty. Recklessness already applies to breaches of the obligations in clause 2(4) and (5), so the amendment would extend the application of recklessness to obligations in clause 2(3). As the Committee has heard, under clause 2(3), those whose acts or information may be relevant to an inquiry or investigation are obliged to make themselves known to the chair. We think there is uncertainty about what recklessness in this context would actually mean and therefore do not think it right for there to be uncertainty about the test for a criminal offence.
Conversely, it is straightforward and clear for the test to be that an individual or authority intends to impede the work of the inquiry or investigation by failing to make it known that they might be relevant. Once an individual or authority has received a compliance direction from the inquiry or investigation specifying the assistance that is required—the second stage of the duty—they will then know clearly what is required of them, so the test for the offence becomes either intention or recklessness. Recklessness in that context makes sense. I therefore urge my hon. Friend to withdraw the amendment, although I am happy to meet him to discuss these concerns.
Mr Morrison
On a point of order, Sir Roger. I am not sure whether this is the right time to ask, but on the amendment paper, amendment 34 is down as a Liberal Democrat amendment, but on the groupings that were sent across to us, it was down as an SNP amendment. I just wanted to clarify where we are with that.
The Chair
I understand that that has been corrected online, and the matter is now on the record as well.
Tessa Munt
I beg to move amendment 27, in clause 5, page 5, line 21, at end insert—
“(1A) If an offence under this section is proved to have been committed with the consent or connivance of—
(a) a senior officer of a public authority, or
(b) a senior officer of a body corporate with relevant public responsibility under section 4 of this Act, or
(c) a person purporting to act in such a capacity,
the senior officer or person (as well as the public authority or body corporate) is guilty of the offence and liable to be proceeded against and punished accordingly.”
This amendment would hold senior officers liable for the offence of failing to comply with the duty of candour and assistance if it is proved that they consented or connived in that failure.
The Chair
With this it will be convenient to discuss the following:
Amendment 33, in clause 5, page 5, line 21, at end insert—
“(1A) Where an offence under this section is committed by—
(a) a public authority, or
(b) a body corporate with relevant public responsibility under section 4 of this Act,
the chief officer or chief executive (as well as the public authority or body corporate) is guilty of the offence and liable to be proceeded against and punished accordingly.”
This amendment would place a personal responsibility on the chief officer or chief executive of a public authority or a corporate body with public responsibility under Clause 4 for an offence of failing to comply with the duty of candour and assistance.
Amendment 44, in clause 5, page 5, line 21, at end insert—
“(1A) Where the duty falls on a public authority or other body, responsibility for the discharge of that duty falls on the Chief Officer or Chief Executive for the purposes of this section.”
Amendment 34, in clause 11, page 9, line 24, at end insert—
“(1A) Where an offence under this section is committed by a public authority, the chief officer or chief executive (as well as the public authority) is guilty of the offence and liable to be proceeded against and punished accordingly.”
This amendment would place a personal responsibility on the chief officer or chief executive of a public authority for an offence of misleading the public.
Amendment 45, in clause 11, page 9, line 24, at end insert—
“(1A) Where the act or statement is made by or in the name of the public authority, responsibility for it lies on the Chief Officer or Chief Executive for the purposes of this section”
Tessa Munt
The amendment would ensure that any person involved in providing a service to a service provider—we are back to our subcontracting discussion —will fall under a duty to comply with the duty of candour and assistance to an inquiry or investigation or any other body, which we have discussed this morning. The intention is to ensure that senior officers cannot evade accountability simply by turning a blind eye to failures to comply with the duty of candour and assistance. The amendment would make them liable where it is proven that they consented or connived in a breach and would close the loophole around responsibility for indirect wrongdoing.
Sir Roger, do you wish me to speak to amendment 33, too?
The Chair
Yes. Amendments 33, 44 and 34 are grouped, but you are only moving amendment 27.
Tessa Munt
Thank you, Sir Roger.
Amendment 33 would place a personal responsibility on the chief officer, or the chief executive of a public authority or corporate body with public responsibility under clause 4, for an offence of failing to comply with the duty of candour or assistance. What is needed is clear personal accountability on the chief officer or chief executive for any failure to comply. That ensures that senior leaders cannot avoid responsibility for breaches within their organisation, and reinforces the expectation that those at the top maintain a culture of openness and co-operation.
Ian Byrne
Amendments 44 and 45 go to the heart of what we are trying to do regarding the Hillsborough law, which is about command responsibility. It is about cultural change. I got the briefing note from the Minister, which I am very thankful for, which outlines where we feel the Government are now, but I think there is a debate among many of us about whether we feel that is strong enough. I just want to outline why I feel that, and why I feel that these amendments are worthy of consideration by the Minister.
The duty of candour and assistance applies to both public authorities and individuals. Where the duty falls on an authority, responsibility for compliance and enforcement measures must land on individuals; otherwise, those measures are basically rendered ineffective. The clause 5 and clause 11 offences require intent or recklessness, a concept that is difficult to apply to a legal—rather than natural—person. Where the criminal law has corporate offences, including proof of intent or recklessness, liability is established by attributing the mental state of directing minds to the corporation. That may be appropriate in some contexts, but here, proof of wrongdoing or failure leads only to liability on the authority and a fine paid by the taxpayer. I just do not feel that goes far enough.
The original 2017 Public Authority (Accountability) Bill dealt with that by making the chief officer or chief executive responsible for the discharge of the corporate duty. We feel that that is both fair and practical, as it places the responsibility on the person with the ability to ensure that authorities are properly led, and a high hurdle of intent or subjective recklessness ensures that he or she does not get prosecuted for inadvertence, or if he or she is misled by others. That also provides an effective deterrent.
I go back to the fact that we are looking at cultural change here; I feel that understanding that they would be responsible would sharpen their minds. Prosecution of a corporation just means that the taxpayer pays a fine, and we have seen that before, with a slap on the wrist and no cultural change.
Anneliese Midgley (Knowsley) (Lab)
I thank my hon. Friend for tabling these amendments. I remind the Committee that, on Second Reading, the Prime Minister said from the Dispatch Box:
“This Bill will tackle that injustice so that when tragedy strikes and the state is called to account, in inquiries, inquests and other investigations, public officials—from police officers to the highest offices in the land—will be subject to that duty. That means that an injustice like this can never again hide in some dark corner of the state. Failure to comply—failure, therefore, to act with candour, transparency and frankness—will now carry criminal penalties, including being sent to prison.”—[Official Report, 3 November 2025; Vol. 774, c. 655.]
I just wanted to add that to this debate.
Ian Byrne
I thank my hon. Friend for that, and she is absolutely right; a commitment was made not to weaken that. Clause 2(5) of the Bill imposes a duty on the chief officer or chief executive to “take all reasonable steps” to ensure corporate compliance, but that is not command responsibility—I think that is a really important point. It is far weaker, and I feel it will be ineffective. Command responsibility is straightforward and places the responsibility for the discharge of the corporate duty on the head of the body.
Mr Morrison
Does the hon. Member agree that, when someone is in that position of power over a public body, they have a huge responsibility, not just for the culture but for the training, the personnel, the HR practices and the policies? With that responsibility, someone needs to ensure that that goes throughout the whole of the organisation, and command responsibility focuses the mind to ensure that everything below them is working to clock.
Ian Byrne
I agree wholeheartedly. I cannot envisage a circumstance where clause 2(5) would be enforced. All reasonable steps could include deferring to the authority lawyers or senior leadership teams.
We have seen exactly this example in the Kerslake inquiry following the Manchester Arena attack, where the former chief constable of Greater Manchester provided a false narrative regarding the police response. At the subsequent public inquiry, he accepted he had made a grave error but still blamed the senior leadership team and lawyers. It is unlikely that he would have risked misleading said inquiry if he had command responsibility, which goes to the absolute heart of this legislation.
Section 3 extends clauses 5 and 11 offences to officers within authorities, such as managers who deal with particular investigations or statements, but only when they can be identified as the wrongdoers. It is a welcome provision, but it is only complementary to command responsibility. It would catch all those contemplating a cover-up lower down the authority, but it does not impose command responsibility on those at the top. We saw that with the evidence last week with regard to the NHS. Healthcare regulations have been pretty ineffective in this regard, partly because enforcement applies only to the organisations, and not the command. That lies right at the heart of the Bill.
Seamus Logan
The hon. Member is making an important point, but am I right in thinking that his motivation—and the motivation of many people in this area—is about getting to the truth, rather than punishing people?
Ian Byrne
Absolutely. Many of us here have experience trying to get to the truth. What we tried to do will be highlighted in the Independent Office for Police Conduct report. Unfortunately, the people who should have been punished will not be punished, but that is a story for another day, I suppose.
Ian Byrne
A fine on a public body, paid by the taxpayer, does not concentrate minds in the way that personal responsibility does. In a recent joint inquest into three self-inflicted deaths at HMP Lowdham Grange, the hearing was adjourned twice due to the Ministry of Justice’s failure to comply with directions for disclosure.
The coroner’s court ultimately took the unusual step of fining the Ministry of Justice because of that. That example shows that existing powers to fine organisations that fail to comply with directions of disclosure do not effectively address the persistent lack of candour, duty and transparency from public bodies. That is why I feel the amendment is so important, and I really hope the Minister takes it onboard.
Maria Eagle
I rise briefly to emphasise some of the points made by my hon. Friend the Member for Liverpool West Derby and urge the Minister to consider whether more can be done in that respect. The lesson of Hillsborough is that the organisations at fault set about using every pound they had available to defend themselves—and we will hear more in the IOPC report, to be published later today.
Those senior offices who made decisions to use the public money that they had in that way simply elongated and lengthened the amount of agony and pain. A corporate fine against an organisation may not be enough to deter that kind of behaviour, so I urge the Minister to consider what more might be done in terms of command responsibility.
Alex Davies-Jones
I thank all hon. Members for tabling these amendments and for today’s debate. As we heard on Thursday, command responsibility is a priority for change and accountability, and I therefore hope I will be able to provide further clarity as to how our Bill ensures clear accountability right at the top. Hillsborough families were clear that there must be individual accountability, with those who have engaged in state cover-ups held responsible. Our Bill clearly delivers that.
Any individual who commits a duty of candour offence can be prosecuted. That includes chief executives or the equivalent. If a public authority breaches its duty of candour or misleads the public, anyone in a management position who consented or connived with that breach can also be prosecuted. As such, amendment 27 would duplicate the provisions in schedule 3(3). Given that clarification, I ask the hon. Member for Wells and Mendip Hills to withdraw the amendment.
Our Bill is consistent with the approach taken in other legislation, including the Bribery Act 2010 and the Fraud Act 2006, where personal liability for offences committed by a corporate body relies on consent or connivance. Anyone in charge of a public authority has a legal obligation to take all reasonable steps to ensure that their authority complies with the duty of candour and assistance. If they fail to do so, they will face prosecution.
Amendments 33, 34, 44 and 45 would hold the chief executive personally responsible for offences committed by the public authority even if they did not have knowledge of the offence being committed, and even if—in the case of amendments 33 and 44—they had taken all reasonable steps to ensure the organisation’s compliance with the duty of candour. We do not believe that that is the intention of the amendments, and we do not think it fair to attach criminal responsibility in that way. We intend the duties to apply widely. For example, we plan to extend the duty of candour and assistance to NHS investigations. It would not be reasonable or realistic to expect the chief executive of an NHS trust to be across every single detail of every response in any investigation into an incident at that trust. Instead, we would expect them to have systems in place to ensure that the authority is complying, which is precisely what the Bill requires them to do.
Seamus Logan
To build on my point to the hon. Member for Liverpool West Derby, the issue here is that the criminal responsibility focuses the mind of the person with command responsibility. It requires that person—the chief executive or otherwise—to ensure full compliance. That is the point.
Alex Davies-Jones
I totally agree. I am absolutely reassured that the Bill, as drafted, does just that. It ensures that there is criminal liability on the head of a public authority to ensure that everything is covered. However, as I have already stated, when something goes wrong in an NHS setting and we know that something has gone wrong but are unable to find out exactly what, despite the head of that NHS trust having all the procedures in place for applying the duty of candour, it would not be fair or reasonable to put criminal sanctions on the head of that NHS executive.
Tessa Munt
Is not the point that, as the hon. Member for Aberdeenshire North and Moray East said, it focuses the mind of chief executives and very senior officers in an organisation if there is the possibility of punishment—of criminal sanction and imprisonment? I take the point made earlier about a fine probably being of absolutely no consequence to an organisation. So often we have heard that what people who have been offended against, in whatever way, really seek is a swift apology and acceptance that something has gone wrong. That is going to come from the duty of candour, but we need to have a sanction available against chief executives and senior officers so that they focus on making sure that their organisations comply and act in an appropriate way.
Alex Davies-Jones
I genuinely do not think that we have crossed wires here. The intention of the Bill is the same as that of the amendments; it is just about how we are doing this. Our approach holds the heads of authorities and the heads of all public organisations accountable for the things that they can reasonably be expected to do or not do. There is no exemption here: it is about whether they have done it or not, and about what is reasonably to be expected of them. We are confident that such accountability, as drafted in the Bill, will drive positive cultural change. The amendments in this group would unintentionally have the potential to criminalise a chief executive even if they did not have knowledge of the offence being committed and they had taken all reasonable steps to ensure the compliance of the organisation. We can find no precedence for such an approach and are deeply concerned that it could have a chilling effect on recruiting public sector leaders.
I reassure the Committee that the Bill ensures accountability right at the top. I am happy to share further information with the Committee, setting that out exactly as it is, and I urge the hon. Member for Wells and Mendip Hills to withdraw amendment 27.
Public Office (Accountability) Bill (Fourth sitting)
(1 day, 8 hours ago)
Public Bill CommitteesRead Hansard Text Read Debate Ministerial Extracts
The Chair
I remind the Committee that with this we are discussing the following:
Amendment 33, in clause 5, page 5, line 21, at end insert—
“(1A) Where an offence under this section is committed by—
(a) a public authority, or
(b) a body corporate with relevant public responsibility under section 4 of this Act,
the chief officer or chief executive (as well as the public authority or body corporate) is guilty of the offence and liable to be proceeded against and punished accordingly.”
This amendment would place a personal responsibility on the chief officer or chief executive of a public authority or a corporate body with public responsibility under Clause 4 for an offence of failing to comply with the duty of candour and assistance.
Amendment 44, in clause 5, page 5, line 21, at end insert—
“(1A) Where the duty falls on a public authority or other body, responsibility for the discharge of that duty falls on the Chief Officer or Chief Executive for the purposes of this section.”
Amendment 34, in clause 11, page 9, line 24, at end insert—
“(1A) Where an offence under this section is committed by a public authority, the chief officer or chief executive (as well as the public authority) is guilty of the offence and liable to be proceeded against and punished accordingly.”
This amendment would place a personal responsibility on the chief officer or chief executive of a public authority for an offence of misleading the public.
Amendment 45, in clause 11, page 9, line 24, at end insert—
“(1A) Where the act or statement is made by or in the name of the public authority, responsibility for it lies on the Chief Officer or Chief Executive for the purposes of this section”
Ian Byrne (Liverpool West Derby) (Lab)
I welcome you to your place, Mr Dowd. As I rise to speak, the four people who gave evidence to us on Thursday are holding a press conference regarding the Independent Office for Police Conduct report, and their opinions of what it consists of. I am sure that they feel as though they have been robbed of any justice. With that in mind, Minister, let us go through the amendments we spoke about just before the Committee adjourned.
It is so important that we emphasise how fundamental command responsibility is to the Bill. We must never have a repeat of what those families will be saying in the next 30 minutes. Without clear responsibility resting with the chief officer or chief executive, the corporate offences in the Bill will be basically impossible to enforce, leaving bereaved families, like those we will listen to today, and survivors with an aspirational duty, I feel, rather than a practical one. We cannot allow that to happen, and this opportunity to be missed.
Minister, you have done so much to get us to this position. So much of this legislation is down to your efforts, and our collective efforts over the last six months, but I urge you to listen to the fears that are being voiced today by Members on both sides of the Committee, because I firmly believe that, in its present form, this provision fatally undermines the effectiveness of the Bill, and the intention behind it, which we all support, to change the culture of cover-ups.
Maria Eagle (Liverpool Garston) (Lab)
Having had the chance to have a very quick look at the report being published at 1 o’clock, does my hon. Friend agree that the IOPC has found that the chief constable of South Yorkshire police at the time, the match commander, the deputy match commander, the deputy chief constable and a total of 10 senior officers at South Yorkshire police likely should have been charged with gross misconduct, which, had it been found, could have led to dismissal, even by the rules that pertained at the time? The fact that there has been no accountability for any of those people in 36 years shows that we have to make sure that there is a way in which the individuals responsible can be properly held to account, and justice can be reached.
Ian Byrne
I thank my right hon. Friend for outlining that beautifully. It goes to the heart of where we are now. As I said, we are watching a live example of why this matter is so fundamental to the Bill, and how effective it will be. I urge the Minister to listen to those concerns and work with us.
Seamus Logan (Aberdeenshire North and Moray East) (SNP)
Earlier, I asked the Minister for an example and she pointed to the national health service. I think that was a fair point, but not every issue here relates to a complicated organisation like an NHS trust, where the chief executive has senior clinicians who have clinical responsibilities that perhaps outweigh the managerial responsibilities of the chief executive. The Minister rightly pointed to paragraph 3 of schedule 3, backing up the point that she was making, and I accept that, but the difficulty with that paragraph, and the way the Bill is currently written, is that it puts the responsibility initially on the body. The point that has been made to me by folk like those at the Hillsborough Law Now group is that that will allow someone—a chief executive, chief inspector or whoever—simply to say, “I didn’t have the knowledge because X or Y didn’t tell me about it.” The proposed amendment would very clearly put the command responsibility on the chief executive or the leading officer.
Ian Byrne
I think the Minister can hear the concern from Members on both sides of the Committee that this will not be as effective if there is no individual responsibility, and if those who have done wrong can hide behind the corporate wall and ride off into the sunset with their full pensions, with no accountability or justice. Once the Minister listens to the evidence, and certainly the response of the families today, hopefully we can reflect on whether we feel this is a loophole that could be utilised by those who are responsible. It is our responsibility in this place to shut that down. I hope the Minister will listen to and reflect on what we have said today, and meet me after this sitting.
The Parliamentary Under-Secretary of State for Justice (Alex Davies-Jones)
We talk about focusing minds. The Bill will clearly focus minds, because a chief executive can face criminal prosecution and potentially prison if they are not candid, if they consent or connive with someone not being candid, or if they fail to take all reasonable steps to ensure that the authority is candid. Those are three different and distinct routes to criminal prosecution that will sharply focus minds. We need to hold senior individuals to account for things that they can actually do. Clearly, they cannot personally verify the accuracy of potentially hundreds of thousands of documents.
The whole Bill is about creating a new culture and accountability. Whenever an individual fails in their duty, they should be held accountable—whoever they are—and that can carry up to two years’ imprisonment. It is a privilege to see you in the Chair, Mr Dowd, but in this morning’s session, before you were in the Chair, I said that this entire Bill Committee is about listening. It is about listening to the families, campaigners and those who have come before, and considering all the work they have done to get us to this place. It is about listening to them with regard to what it means for the Bill to be a Hillsborough law.
I have listened to my hon. Friend the Member for Liverpool West Derby and other Committee members today, and I am committed to meeting him and finding a way forward. If there are genuine concerns regarding command responsibility, and Members feel that we are not going far enough, I am committed to listening and working with my hon. Friend on a way forward.
Tessa Munt (Wells and Mendip Hills) (LD)
I am delighted that the Minister is listening; that is helpful. I would be grateful if she could consider my hon. Friend the Member for Cheadle and me to be part of the discussions with the hon. Member for Liverpool West Derby. That would save me a great deal of trouble in quoting the questions from the right hon. Member for Liverpool Garston in our evidence session last week. I was intending to read out a good deal of the further comments from Hillsborough Law Now and Pete Weatherby in my summing up. I do not know whether the Minister is up for this, but it might be helpful to invite that particular gentleman.
Tessa Munt
I am delighted to hear that he will be part of that discussion, because I think he has a good grip on everything, and it saves me reading the Minister a page and a half of his comments today.
Tessa Munt
I am sure the Minister has seen them, but I was going to quote them none the less. I have mentioned the Office for Budget Responsibility, which I know is an organisation with fewer than 100 people. There we have somebody—regardless of the fact that, I am sure, he is not all over the emails and all the rest of it; the work that his office does with his employees, those who work with him and so on—who took what might be considered an incredibly honourable stance and resigned his position over something that happened in the last week. That is absolutely laudable. He is an illustration of how command is absolutely at the centre of this issue.
Alex Davies-Jones
I totally agree that there should be responsibility and accountability at the top of any organisation. We are not doubting that; that is the intention of the Bill. Does the hon. Lady believe that the head of the OBR should have potentially been subject to criminal sanctions in that instance? Resigning is one thing; going to prison for up to two years is very different.
Tessa Munt
No, but it might be difficult to quantify. There certainly was no danger of anyone losing their life or being very seriously injured, and I presume we would not be looking for whistleblowers in his organisation, because he has taken responsibility. I take the point, but he has done the right thing in that situation. Will the Minister clarify something that I raised earlier: what will happen with people who resign—by resigning, the head of the OBR has avoided any chance of going in front of the Treasury Committee today—and those who have retired? It is clear that people can remove themselves from the framework, currently. Does the Minister have something to say about that?
Alex Davies-Jones
I believe that I stated this earlier, but should an official inquiry or investigation be called, the head of the OBR, who has now resigned, or the head of any organisation—we are speaking in hypotheticals here—who was involved in an inquiry or investigation and had resigned, retired or moved abroad would be compelled to come to give evidence under the duty of candour. They would not be excused.
Tessa Munt
I thank the Minister for that clarity. On the basis that we are going to meet to discuss this, and that Pete Weatherby and hon. Members from the Minister’s party will be involved in those conversations, I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Tessa Munt
On a point of order, Mr Dowd. I am not entirely clear about the process for this, but I realise that in the morning session I should have declared that I have an interest as the vice-chair and a director of WhistleblowersUK, which is a non-profit-making organisation. I want to retroactively declare that in relation to this morning’s proceedings and start this afternoon’s proceedings by making that absolutely clear.
Alex Davies-Jones
Clause 5 sets out the offence of failing to comply with the duty of candour and assistance, as set out in clauses 2 to 4 of the Bill, so that the duty has bite. The offence is intended to provide a powerful deterrent effect to drive culture change. As I set out when covering clause 2, the duty has two stages: first, the requirement for public authorities and officials to make themselves known to an inquiry or investigation if their acts or information may be relevant; secondly, the requirement to provide any assistance as specified in a compliance direction from that inquiry or investigation. There is also a requirement for the public official in charge of the authority to take all reasonable steps to secure that the authority complies with the duty.
Clause 5 provides that an individual or authority
“commits an offence if…they fail to comply with the duty”
In relation to the first stage of the duty, the duty to notify, they must have intended to impede the inquiry or investigation by that failure. As for the second stage, the duty to comply with a compliance direction, they must have either intended to impede the inquiry or investigation or been reckless as to whether they would do so.
The intention and recklessness threshold also applies in relation to any breach of the duty on leaders of authorities that fail to put in measures to secure compliance with the duty by the authority and its officers. We have made this distinction in tests between the two stages because, in relation to the duty to notify, we do not want to criminalise someone for genuinely being unaware of an inquiry or investigation. Clause 5(2) sets out the penalties for those convicted of the offence, either on summary conviction at a magistrates court or on indictment at a Crown court. In the latter, the maximum prison sentence for this offence is imprisonment for a term not exceeding two years or a fine, or both.
Question put and agreed to.
Clause 5 accordingly ordered to stand part of the Bill.
Clause 6
Security and intelligence information
Seamus Logan
I beg to move amendment 21, in clause 6, page 6, line 3, at end insert—
“(2A) Where an obligation to give notification would have arisen under section 2(3), save for the exemptions in subsection (2), the head of the relevant intelligence service must provide a written notification to the Intelligence and Security Committee of the UK Parliament summarising the acts that may be relevant to an inquiry or investigation.”
This amendment aims to provide accountability for intelligence services and their operations in relation to the duty of candour and its exemptions from them.
The Chair
With this it will be convenient to discuss the following:
Clause stand part.
Amendment 39, in schedule 2, page 41, line 14, at end insert—
“(ja) the intelligence services, or”.
Amendment 40, in schedule 2, page 43, line 31, at end insert—
“(ia) the intelligence services, or”.
Amendments 39 and 40 would add the intelligence services to the lists of public authorities in Schedule 2 for the purpose of defining “public authority” in relation to this Bill.
Seamus Logan
It is a pleasure to serve under your chairmanship, Mr Dowd. We have had an excellent debate on command responsibility, and I am heartened to see a very positive outcome from that discussion.
Clause 6 is separate and distinct because it applies to the intelligence services. We heard evidence about the provisions in clause 6 in the evidence session, as well as at a useful special meeting that some Committee members attended with two heads and a deputy head of the three intelligence services. As the shadow Minister pointed out, the evidence from that special meeting and the evidence session has highlighted that there are potentially some contradictory views. Nevertheless, my problem with clause 6(2)(a) is that it is basically a get-out clause; it allows the head of an intelligence service to opt out of the overall duty of candour where that would, according to the Bill, contravene the Official Secrets Act 1989.
I understand that there are special circumstances regarding the intelligence services, as was ably described to us by Sir Ken McCallum, when he said, “I don’t know who all my agents are, and I am not sure that I know all of their activities.” That is fair enough; one can readily understand why that might be the case. Nevertheless, there should be no overall escape clause for the intelligence services. Having said that, I understand that there will be circumstances in which it is necessary to maintain secrecy about certain aspects of what the intelligence services do.
My amendment would give a role to the Intelligence and Security Committee, which is a Committee of the House, by requiring the head of an intelligence service, in these specific circumstances, to make a report to the ISC on what the exception is. In even more exceptional circumstances, I understand that the ISC can also communicate with the Prime Minister alone—it has no obligation to do anything else.
I believe that that sensible mechanism would give us confidence, in drafting the Bill, that there is no get-out clause. Critically, it would also restore trust even within our intelligence community on how it operates. We do not need to go back over all the evidence that we heard from an employee of the BBC, for example. I hope the Minister can take on board the thrust of what I am saying in the amendment, and perhaps she can even see fit to endorse it.
Alex Davies-Jones
I thank the hon. Member for his amendment. I will respond to amendment 21 and the other amendments in turn, before moving to the question that clause 6 stand part of the Bill.
As the hon. Gentleman stated, amendment 21 would ensure that when clause 2(3) of the duty applies to the intelligence services, the head of the intelligence service must give the Intelligence and Security Committee a summary of any relevant acts or information. The Government have taken his points on board, and we are actively considering options to be introduced on Report. I commit to continuing to engage with him, other Committee members and external stakeholders to make sure that we find a way forward that is fit for the Bill and fit for protecting national security.
Seamus Logan
I thank the Minister for that. Given she has said that we will see an amendment on Report, I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Mr Tom Morrison (Cheadle) (LD)
Yes, sorry. In the last evidence session, we discussed a very similar situation when we heard from both Pete Weatherby and Daniel De Simone, one of whom is a KC trying to get to the truth through his work in the courts, and another of whom is a journalist trying to expose the truth, particularly around the Agent X story. We are not looking for a change to the Official Secrets Act or its operation. We simply want the Bill to encompass the security services explicitly.
There is a list of public authorities on the Bill. The security services are not on there, which begs the question, why? I thank the Minister for saying that further work will be done on that and that she will be engaging with all Members across the House before Report. On that basis, we are happy to withdraw the amendments.
Alex Davies-Jones
I welcome the withdrawal of the amendments. We had a discussion earlier about why we have not listed organisations in the Bill. We did not want it to be an exhaustive list and to miss an organisation out unintentionally, which could lead them to think that the Bill does not apply to it. We have been extremely clear that intelligence services are covered by this Bill, including clause 6. I reaffirm that to reassure the hon. Gentleman.
Clause 6 sets out that the duties in the Bill apply to the intelligence services, but it requires that proper arrangements and protections are in place to safeguard national security. As subsection (2) states, the obligation in clause 2(3) for a person to notify the inquiry or investigation does not apply to
“a person who works for an intelligence service”,
or where doing so would result in the release of security or intelligence information.
To be clear, inquiries and investigations are able to demand assistance and information from the intelligence services under the obligation in clause 2(4), but appropriate arrangements need to be in place for an inquiry or investigation to receive that sensitive information, as is the norm now. Individuals revealing acts or information outside of those arrangements could be detrimental to national security, as I am sure all hon. Members would agree.
Subsection (3) places a requirement on the heads of the intelligence services to put in place internal arrangements to ensure that those who work for the service comply with the requirements to record any acts or any information that may be relevant to an inquiry or investigation. They must inform the service if they hold such information that is not already available to it. That ensures that the services have all the information they need to discharge their obligations under the duty as an authority. However, as I have already stated, I am committed to working with hon. Members, external stakeholders and the UK intelligence services to make sure that we have as a robust Bill as possible that fulfils the aims, objectives and intentions of us all.
Clause 6 ordered to stand part of the Bill.
Clause 7
Transitional provision in relation to this Chapter
Question proposed, That the clause stand part of the Bill.
Alex Davies-Jones
The clause provides that the duty of candour and assistance will apply to inquiries and investigations that are already ongoing at the time of commencement, as well as those that start afterwards. It may be necessary to set out further transitional provisions in the commencement regulations to ensure that ongoing inquiries and investigations can make effective use of the duty and are not delayed or forced to repeat stages by its procedural requirements if they are already far advanced.
Clause 8 sets out the meaning of key terms used in this chapter of the Bill, which deals with the duty of candour and assistance. Specifically, it defines “inquiry” as meaning
“an inquiry under the Inquiries Act 2005”
and a non-statutory inquiry meaning where
“paragraph 2 of Schedule 1 applies”.
Subsection (1) defines the terms “investigations”, “position statement”, “public official” and “public authority”, and references the appropriate Act or schedule from where the definitions are drawn. Clause 8(2) defines what the individual “in charge” of a public authority means. Clause 8(3) then defines “chief executive” as meaning an
“individual working for the authority who…is responsible under the immediate authority of the board of directors for the general functions of the authority.”
The clause is essential for allowing us and any future readers to interpret the key terms used throughout the Bill.
Question put and agreed to.
Clause 7 accordingly ordered to stand part of the Bill.
Amendment made: 4, in clause 8, page 6, line 32, at end insert—
“, or
(c) an inquiry to which paragraph 3A of that Schedule applies (local authority inquiries);”—(Alex Davies-Jones.)
This amendment is consequential on amendment 7.
Clause 8, as amended, ordered to stand part of the Bill.
Clause 9
Expected standards of ethical conduct
The Chair
With this it will be convenient to discuss the following:
Amendment 49, in clause 9, page 7, line 38, at end insert—
“(d) consult with representatives of recognised trade unions to promote co-operation in the making and maintenance of the code and in checking its effectiveness.”
Amendment 47, in clause 9, page 8, line 1, leave out “set expectations” and insert “require”.
Amendment 48, in clause 9, page 8, line 1, leave out “should” and insert “must”.
Ian Byrne
What we are talking about is culture change. Interestingly, in last Thursday’s evidence session, culture change was mentioned 69 times. When talking about standards of ethical conduct, I think it is extremely important. That is why I have tabled these amendments, and I hope the Minister considers them.
Turning to amendment 46, the Bill currently states that public authorities
“must promote and take steps to maintain high standards”.
That wording permits minimal or symbolic compliance, which is exactly what the Bill sets out not to do. Clause 2(5) sets out that a public official must take “all reasonable steps” to secure public authority compliance with the duty of candour and assistance. The same “all reasonable steps” should bind public authorities to the duty of candour in chapter 2—not “promote and take steps”.
All reasonable steps is a standard with which employers and employment tribunals are familiar. Section 109 of the Equality Act 2010 sets out an employer’s duty to take “all reasonable steps” to prevent discrimination. Those reasonable steps include training for new workers, annual performance reviews, opportunity for discussion on equality and discrimination, clear messaging on posters and regular mandatory equality training for all workers. The Minister touched before on how we change culture and standards through training.
A comparison with the Equality Act 2010 is not only legally relevant; it is a source of evidence about how the law can achieve cultural change through the “all reasonable steps” standard. The Equality Act secured cultural change in matters of equality and anti-discrimination; the Hillsborough law we are debating today seeks cultural change in matters of ethics and candour. The “all reasonable steps” standard is appropriate and improves legal clarity, and I believe it is needed, so I hope that the Minister considers the amendment.
Alex Davies-Jones
I am very grateful to my hon. Friend for tabling these amendments. As we all heard last Thursday, true cultural change is a key part of implementing the Hillsborough law, and the professional duty of candour required by clause 9 is at the heart of that. Amendments 46 to 48 admirably seek to strengthen the duties imposed on public authorities to promote ethical conduct and adopt a code of ethical conduct.
As my hon. Friend will be aware, clause 9 places a duty on public authorities to promote and maintain high standards of ethical behaviour and conduct. Professional duties of candour will be tailored to the specific sector to which they apply, making them meaningful to staff and responsive to the needs of those who use that organisation’s services. While I am grateful to my hon. Friend for suggesting these amendments, we believe that our drafting achieves the same purpose as the proposed amendments and is sufficiently clear and robust.
Amendment 49 seeks to require public authorities to consult with recognised trade unions on the creation and maintenance of a code of ethics. I thank my hon. Friend for highlighting the issue of trade union engagement. I am a proud trade unionist myself—I refer Members to my entry in the Register of Members’ Financial Interests relating to the unions that I am a member of. I agree that if a code of ethics is to be truly successful, it is important that those working for the authority and their representatives, including trade unions, should have a proper opportunity to contribute to its development.
However, given the complexity and diversity of arrangements across the public sector, the Government’s view is that it would not be advisable to prescribe standard procedural arrangements for all public authorities in this Bill. Many organisations already have an existing code of conduct or a code of ethics. These exist in different forms and may have different underpinnings and links to other organisational governance arrangements. For example, the civil service code forms part of civil service contracts, and the code of ethics in policing is produced by the College of Policing, which does not directly employ individual officers.
Adapting and adopting a code of ethics will require different processes of development, engagement and consultation for each organisation and sector. This is not a one-size-fits-all approach, nor should it be. Public sector employees and employers will have existing arrangements and consultation with trade unions. Creating a specific requirement in the Bill could create confusion and usurp the existing processes and relationship arrangements between public authorities and their trade unions. I am keen to work with my hon. Friend to consider how we can encourage employees and their representatives to be engaged in the processes of developing the codes. In fact, we are already in discussions with trade unions on how we can best include them in the process through consultation and guidance to ensure that we have the most robust practices. With those assurances, I urge my hon. Friend to withdraw his amendment.
Mr Morrison
I beg to move amendment 43, in clause 9, page 8, line 2, after “work” insert—
“including the retention and disclosure of digital records including messages relevant to their public functions”.
This amendment ensures that digital messages and records are added to the duty of candour in relation to inquiries and inquests.
The Chair
With this it will be convenient to discuss new clause 3—Offence of wilfully destroying information or records relevant to an inquiry or investigation—
“(1) A public authority or public official commits an offence if—
(a) they deliberately destroy relevant information or records relevant to an inquiry, investigation, or inquest;
(b) they know that, or are reckless as to whether, the information is relevant to or required by an inquiry, investigation, or inquest.
(2) A public official who commits an offence under this section is liable—
(a) on summary conviction in England and Wales, to imprisonment for a term not exceeding the general limit in a magistrates’ court or a fine (or both);
(b) on summary conviction in Scotland, to imprisonment for a term not exceeding 12 months or a fine not exceeding the statutory maximum (or both);
(c) on summary conviction in Northern Ireland, to imprisonment for a term not exceeding six months or a fine not exceeding the statutory maximum (or both);
(d) on conviction on indictment, to imprisonment for a term not exceeding two years or a fine (or both).”
This new clause introduces an offence for wilfully destroying relevant records after a major incident that may lead to an inquiry or inquest.
Mr Morrison
We spoke this morning about the issues dealt with by amendment 43, but to clarify, WhatsApp messages formed a big part of the evidence in the recent covid inquiry—it seemed to be government by WhatsApp at the time—and yet many of them seem to have disappeared. The amendment would provide an extra way of ensuring that public authorities and those responsible are keeping proper records and preventing that from happening again.
New clause 3 would prevent the deliberate concealment of evidence that could obstruct investigations, hinder fact-finding and undermine public trust. I would like the Committee to consider the element of public trust here. How people perceive what happens in this place, and in the organisations and public authorities that surround us and the power structures that are there, is vital to the legitimacy that we have and that those public authorities also have. By criminalising such conduct, the clause would reinforce the obligation on public authorities and officials to maintain and safeguard records, ensuring that inquiries and inquests can access all the information necessary to understand what happened and hold the responsible parties to account. This is a way to make sure that the truth can be found in those areas and hopefully ensure that WhatsApp messages are not deleted in future.
Alex Davies-Jones
I thank the hon. Gentleman for raising an important issue. Amendment 43 would, as he states, make authorities set expectations for staff on how to retain and disclose their digital records in accordance with the obligations under the duty of candour. Proper record keeping is important to ensure accountability and propriety in decisions made by public authorities. That applies where records are on paper or held digitally— for example, in a WhatsApp group—and it is important that organisations have policies and processes in place to manage these effectively.
However, the Government’s view is that the code of ethical conduct is not the correct vehicle for establishing those processes. The Public Records Act 1958 already places certain requirements on public authorities. Under that Act, the Keeper of Public Records issues guidance to supervise and guide the selection of historic records —including digital records—worthy of permanent preservation.
Disclosure to inquiries and inquests will require the detailed consideration of various factors, including the fact that the authority’s legal obligations include the duty of candour and assistance, the protection of personal or sensitive information, and the relevance to the inquiry’s terms of reference or the inquest. Authorities may also require specific legal advice. Separate and bespoke policies will therefore be required. The professional duty of candour established under clause 9 is intended to focus on what candour means for each public official going about their business in their day-to-day role. I therefore request that the hon. Member for Cheadle withdraws the amendment.
On the point about whether WhatsApp messages are covered, and specifically disappearing messages or those deleted in the course of work, as they sometimes are, the duty of candour and assistance requires all public officials and authorities to provide all relevant information. If a public official was part of a WhatsApp chat in which relevant information was exchanged, they would be obliged to inform the chair of that fact, and if disappearing messages had gone or the chats had been deleted, they would have to provide an account of what was discussed, to the best of their recollection, even if the messages had since been deleted or vanished.
Tessa Munt
I know that we dealt with this matter earlier, but I again put on the record my concerns about subcontractors in tiers 1, 2 and 3, who often hold key information. We need to find some way to make sure that they are within the scope of this provision.
Alex Davies-Jones
I recognise that concern, which I share, and we are looking at that in terms of the passage of the Bill. As I have stated, the duty would be on the public authority, official or subcontractor to disclose all the information to the chair of the inquiry or investigation.
Dr Kieran Mullan (Bexhill and Battle) (Con)
Perhaps the point the hon. Member for Wells and Mendip Hills was making was that the Minister referred to a separate piece of legislation, the Public Records Act 1958, and I am not sure that that legislation includes things like contractors and subcontractors.
Alex Davies-Jones
The information provided to the inquiry would be covered and, as per the provisions of this Bill, subcontractors would be caught under the duty of candour and would have to disclose any relevant information, as per the information disclosed in that Act. I hope that clarifies it.
Tessa Munt
How helpful has the existing law been in relation to the covid inquiry, which my hon. Friend the Member for Cheadle mentioned? I am not sure that has quite got to the base of everything. Does the Minister have any suggestions about improving the Bill to be explicit about what we expect?
Alex Davies-Jones
Again, I totally agree with the policy intention. If the Bill had become an Act when the covid inquiry was under way, might that inquiry have carried things out differently, or provided information in a new way or in a new light? We cannot answer that. All I can say is that the purpose and intention of the Bill is to ensure that any inquiries or investigations seek the whole truth and that all information is disclosed so that we are never put in that position again. That is the intention of the Bill, and we have made sure it is as robust as possible to provide for that.
Maria Eagle
I can understand why Members might feel a certain amount of scepticism about the idea that an obligation to try to remember disappearing messages might be adequate. I do not know how many messages other Committee members send, but I think we have all got into the habit of sending rather a lot. Could there not be an arrangement, either in the code of ethics or in the policies and procedures of organisations, to make sure that people do not use WhatsApp for official business? We could also make sure that whatever chat people do use—it might be an internal arrangement—messages are properly kept and we therefore do not have to rely on dodgy memories of disappearing messages to make sure that messages are preserved for any future inquiry.
Alex Davies-Jones
My right hon. Friend makes a very important point: it is for each individual organisation to determine the policies and procedures for their record keeping. It might be wholly appropriate for one organisation, if it has a small number of employees, to use a WhatsApp group, but we would expect records to be kept appropriately and for employees not to turn on disappearing messages. That would be part of the terms and conditions in the guidance and practices for the employees.
It would be for each different organisation to determine what is right and appropriate. It is not for Government to tell any organisation how to run its business or manage its employees. However, we have set out the bare minimum that is expected: the Bill makes it explicitly clear that records of any information relevant to an inquiry or investigation should be kept, and that such information should be disclosed to the inquiry or investigation if requested.
Mr Morrison
I thank the Minister for her comments. In the spirit of cross-party working, I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Seamus Logan
I beg to move amendment 24, in clause 9, page 8, line 12, leave out “may” insert “must”.
I am aware that we have debated amendment 48, although perhaps not as fully as I would have liked. In the interests of getting our business done within the time available, I decided not to intervene in that debate. However, I believe that the particular change in amendment 24 is necessary. Where amendment 48 spoke to the duty of candour, amendment 24 speaks to the code of ethics.
There are legal minds in the room that are much better informed and trained on legal definitions than my own, but amendment 24 addresses the need to replace “may” with “must” in the code of ethics, as opposed to the duty of candour. I believe this is important given my experience in the health service, where there is a responsibility on individuals to report child abuse, or where a colleague might clearly be able to see that a surgeon carrying out procedures is repeatedly doing something injurious or harmful. By replacing the word “may” with “must”, we place a responsibility on anyone to blow the whistle on those particular issues.
In my working life I have experience, as might others present, of consultants who suppressed information relating to child abuse. We certainly heard similar evidence about surgeons during our evidence session. Colleagues will be able to think of many such examples, which is why it is important that the amendment replaces “may” with “must”.
Alex Davies-Jones
I thank the hon. Gentleman for tabling his amendment. The Government believe it is imperative to have policies and processes in place to enable officials and public servants to speak up when they see that something is wrong. If we are to address the culture change that we have heard about a hundred times, it is important to have that in place. That is why the Bill requires all public authorities to set out how a person can raise concerns if they think their colleagues are not acting in accordance with the code, and the process for making a protected disclosure, also known as whistleblowing.
The amendment would require individuals to take a particular course of action. This risks cutting across established disciplinary and whistleblowing regimes, with potentially significant implications for employees. I assure the hon. Gentleman that we are working across Government with the Department for Business and Trade on how we reform whistleblowing more generally, and as the Bill progresses we will be looking quite carefully at whistleblowing and protections for individuals. However, we do not think the amendment would have the intended consequences, and it might cause us more issues, so I request that the hon. Gentleman withdraw it.
Seamus Logan
I thank the Minister for that response, but I am at a loss to know how the responsibility suggested by the amendment would cut across any existing code of ethical conduct. If the legislation simply stated that the person who works for the authority must take steps if they believe that another person who works for the authority has failed to act in accordance with the code, I fail to see how that would cut across any existing procedures. It would simply make the provision more robust by saying “You must take that step” rather than “You may take that step”. That is what the amendment calls for; perhaps the Minister might like to expand on why she wishes me to withdraw it.
Alex Davies-Jones
I will happily come back to the hon. Gentleman. Say, for example, that someone in the police force believes that a colleague is not acting in accordance with the code of ethics, but that individual may not be privy to the details of an undercover operation that their colleague is aware of and they are cutting across existing provisions in the police force. If that individual had to do as the hon. Gentleman intends with his amendment, they could hinder the investigation or cause unintended consequences.
With the Bill, we are saying that there must be a way of reporting. Every public organisation must have that built in but, as we have discussed, a one-size-fits-all approach does not work across all public sector authorities. What will work in the NHS will not work in the police or for probation. This all has to fit the specific authority. Therefore, there has to be a mechanism for reporting, but we are not designating a specific one.
Dr Mullan
I hope I can be of assistance. I think the clause is about the public authority’s obligation to explain to its employees all the things they can do to raise a concern. I do not think that it is directed at the individuals who might be required to do things. It might be better for it to say that the authority must ensure that that information is available. If we read it in the context of the public authority’s obligations, it is about what the authority should tell people, rather than placing any obligation in relation to individuals’ actions. I hope that might explain it more clearly.
Seamus Logan
I thank the hon. Member for his intervention, which is helpful. Perhaps when the Minister and I, and others, meet to discuss other matters, we might explore this in more detail. If the Minister is willing to accept that, I am happy to withdraw the amendment.
Seamus Logan
I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Ian Byrne
I beg to move amendment 50, in clause 9, page 8, line 15, leave out subsection and insert—
“(b) the making by any person of disclosures which are protected disclosures in terms of section 43B of the Employment Rights Act 1996 or which would be such disclosures had they been made by a worker or employee, including information about any policies the authority has adopted in relation to the making of such disclosures;
(ba) the affording of enhanced protection to any persons making disclosures under paragraphs (a) or (b), including policies ensuring that those persons are not subjected to bullying, harassment or any other form of detriment in relation to the making of such disclosure;”.
The Chair
With this it will be convenient to discuss the following:
Amendment 26, in clause 9, page 8, line 17, after “disclosures” insert “and to whom such disclosures should be made;
(ba) how a person making a protected disclosure under paragraph (b) is protected;
(bb) a list of prescribed people and bodies to whom a potential whistleblower may speak to in confidence about a relevant concern.”
This amendment would require that a public authority’s code of ethical conduct includes information on whom a person can make a protected disclosure to and how that person would be protected.
Amendment 22, in clause 9, page 8, line 17, at end insert—
“(ba) the affording of enhanced protection to any persons making disclosures under paragraphs (a) or (b), including policies ensuring that persons are not subjected to bullying, harassment or any other form of detriment in relation to the making of such disclosure”.
Ian Byrne
I go back to the change of culture we have been talking about. Thankfully, the Minister has touched on the idea of a listening exercise regarding strengthening the laws around whistleblowing, but it was clear from the evidence we heard last week that there is real concern that the existing measures to protect whistleblowers are insufficient to remove the fear of reprisal, and that they do not adequately protect persons who make protected disclosures. This is fundamental to what we are attempting to do. The protection of whistleblowers is a hugely important issue that many Members from all parties are fearful about. Amendment 50 is intended to strengthen the protections, and I hope the Minister accepts it and considers it in the round with what she said about listening and hoping to strengthen the protections once we have had the relevant discussions.
Tessa Munt
I rise to speak to amendment 26, which has some similarities with what the hon. Member for Liverpool West Derby just outlined. I am extremely keen to ensure that people are really clear about what they have to do when they wish to report. This relates to clause 9(5)(c) as well.
As has been mentioned, the Employment Rights Act 1996 tends to guide people towards the employment tribunal if something has happened. Currently, if something has gone wrong, that is where people can end up. As I mentioned last week, my understanding is that the employment tribunal has a backlog of 47,000 cases. My sense is that when the Bill comes into effect, which will not be very long, there will be masses more people who find themselves guided by the Public Interest Disclosure Act 1998 to head for the employment tribunal, which does not seem to be an adequate place for people to deal with their complaints.
The employment tribunal is for those who are considered to be a worker, be that an employee or somebody acting in a voluntary capacity. Amendment 26 would require a public authority’s code of ethical conduct to include information on the person to whom someone can make a protected disclosure—what we know as whistleblowing —and how the person would be protected against detriment. It is incredibly important that the code of ethical conduct sets out clearly how individuals can make a protected disclosure and the protections available to them.
The amendment would strengthen the whistleblowing safeguards by providing staff with clear guidance on the safe reporting of wrongdoing. It should address some of the gaps in protection without creating a specific outside body. I have already spoken to the Minister about the idea of an office of the whistleblower; I understand that is outside the scope of the Bill, but it is really important that whistleblowers can come forward with confidence while remaining within the statutory framework, and that they have somewhere safe to go.
Alex Davies-Jones
I thank Members for raising those important points. We discussed whistleblowers and the protections needed for them a lot in the oral evidence sessions. It is essential that if there is wrongdoing in an organisation, those working for the organisation can come forward and raise the alarm, and be confident that they will be protected when doing so.
Through the Bill, public authorities will be required to promote and maintain standards of ethical conduct, and their leaders will be held accountable for that. In doing so, leaders must ensure that their authority’s code of ethics contains information about any whistleblowing policies or procedures.
Tessa Munt
Does the Minister accept that a huge number of authorities, bodies and organisations may not, whether wittingly or not, recognise somebody as a whistleblower? There is a real danger in people believing that they are whistleblowing and that they will have protection, yet the companies not recording them as whistleblowing incidents. How does the Minister see that working?
Alex Davies-Jones
The hon. Lady has pre-empted my next comments. The Bill will ensure that workers who are protected against retaliation by an employer for blowing the whistle about wrongdoing—known formally as making a protected disclosure under the Employment Rights Act 1996—are more aware of their rights.
We believe that certain elements of the amendments are unnecessary. For example, while we are absolutely sympathetic to its aims, amendment 26 would require employers to provide information on prescribed persons that is already online, on gov.uk. The amendments could also introduce confusion—
Alex Davies-Jones
And that is the very confusion the hon. Lady mentioned. If she lets me finish my point, I will give way.
Amendment 50, for example, may lead some people who work for a public authority, but are not workers, to believe that their disclosure may qualify for whistleblowing protection under the Employment Rights Act 1996. We do not wish to cause that confusion. I point the hon. Lady to our work on whistleblowers across Government, which will of course inform work on the passage of this Bill.
Tessa Munt
I want to mention the huge number of occasions when I dealt with constituents and others, when people have been—I would say—entrapped into signing non-disclosure agreements or NDAs, which mean they feel that they cannot talk to anyone. They even fear talking to their MP. It is not clear to whom they can speak, and part of my desire is to ensure that each authority—I am not saying that the Minister should say what should be disclosed and to whom; this is for every organisation—should have someone identified. They should make public that safe place or safe person to whom anyone can report, be they in or outside the authority—that comes under the next subsection, I accept—as workers or employees. This business of NDAs needs to be sorted out once and for all, because it is pervasive and incredibly destructive.
Alex Davies-Jones
The hon. Lady will be aware of the work we are doing on NDAs in the Victims and Courts Bill and the Employment Rights Bill. A lot of work is happening across Government on how we can protect individuals who are being forced to sign NDAs or those who feel unable to come forward and whistleblow. That work is being done holistically and is led by the Department for Business and Trade. I am happy to discuss her concerns more broadly in Committee, during the passage of the Bill, and outside the Committee.
Seamus Logan
Thank you, Mr Dowd. Pursuant to the issues already outlined by the hon. Member for Wells and Mendip Hills, amendment 22 is about affording enhanced protections. The main point I make to the Minister is this. If the existing protections actually worked, then why—as we heard in the evidence sessions—are so many people falling foul of whistleblowing provisions? Their careers can be blighted, and in some cases they lose their jobs. If the existing protections are sufficient, why is it necessary to consider making these amendments?
Alex Davies-Jones
I am happy to discuss our broader work on this and how we move forward on whistleblowers with the hon. Gentleman and the hon. Member for Wells and Mendip Hills outside the Committee Room.
Ian Byrne
I am filled with confidence by the Minister’s response on whistleblowers. I know that she will be taking this seriously, because it goes to the heart of changing the culture of organisations that have failed us time and time again. This whistleblowers element is extremely important. I am happy to hear that Minister is up for engaging with us across the Benches to strengthen these provisions, which is desperately needed. I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Tessa Munt
I beg to move amendment 28, in clause 9, page 8, line 22, leave out subsection (6) and insert—
“(6) The Secretary of State must introduce a standard template for ethical conduct of conduct for completion by public authorities which satisfies the requirements in this section and which may be added to by public authorities to include information specific to their organisation or function.”
This amendment would require the Secretary of State to introduce standard template to ensure a consistent and high standard approach to completion of code of ethical conduct documentation across public authorities.
The Chair
With this it will be convenient to discuss the following:
Amendment 25, in clause 9, page 8, line 25, leave out “may” insert “must”.
Amendment 23, in clause 9, page 9, line 5, at end insert—
“(13) The Secretary of State must ensure appropriate and adequate funding is provided to enable public authorities to train public officials so that they are aware of the standards contained within the code of conduct relating to them.”
New clause 4—Monitoring compliance with duties under the Act—
“(1) The Secretary of State must commission and publish annually an independent report which monitors public authorities’ compliance with their duties under the Act.
(2) The report must assess—
(a) public authorities’ record-keeping, disclosures and responses to inquiries and investigations;
(b) the effectiveness of enforcement and sanctions provisions in the Act in helping to ensure that public authorities and public officials perform their functions in line with the duty of candour in their dealings with inquiries and investigations; and
(c) the effectiveness of the provisions in the Act for supporting persons, including public officials, making protected disclosures and for reporting wrongdoings to an inquiry or investigation following a major incident.
(3) The Secretary of State must lay a copy of each report before both Houses of Parliament.
(4) The first report must be laid within the period of 12 months of the passing of this Act.
(5) Each subsequent report must be laid annually beginning with the day on which the previous report was laid.”
This new clause requires the Secretary of State to commission and publish annually an independent report with the purpose of providing an oversight mechanism to monitor compliance with duties under the Act.
Tessa Munt
The amendment seeks to ensure that all public authorities and organisations adopt a consistent and high-quality approach to their codes of ethical conduct by requiring the Secretary of State to introduce a standard template. This should not be prescriptive, but it should at least form a basis for every organisation and a minimum standard, in order to promote clarity, uniformity and accessibility, making absolutely sure that staff can understand it.
Maria Eagle
I was looking at the amendment paper this morning. It was probably mistyped, but my copy says that the Secretary of State must introduce a standard template for “ethical conduct of conduct”. Should that be “codes of conduct” or “ethical conduct”?
Tessa Munt
I thank the right hon. Lady for her intervention. She is absolutely right: the amendment should not say “conduct of conduct”, it should indeed say “codes of conduct”. I hope the Chair can note that, and forgive me for any confusion.
I am hoping—by misspelling everything—to promote clarity, uniformity and accessibility, making it easy for staff to understand their obligations and the processes for reporting wrongdoing. By standardising the minimum content in ethical codes, the amendment would strengthen accountability, support a culture of integrity and help to ensure that protections, such as those for whistleblowers, are applied effectively across all public authorities and organisations. I recognise that the Minister has spoken pretty strongly against doing this; none the less, I am seeking clarity. Having a minimum standard set by the Secretary of State might be helpful, but I recognise that the Minister has already had a good old go at saying no.
Seamus Logan
I rise to speak to amendment 23. The Minister will be aware that if the Bill is enacted, as we are all confident that it will be in due course, a large number of public authorities will face significant new training requirements. When we met with the intelligence services chair, Sir Ken McCallum, he readily acknowledged that there will be significant training implications for his organisation, and MI5 is quite small in the broader context, particularly if one thinks of the national health service, the civil service, the police, and so on.
The Minister has told me that the money resolution has already been passed, and there are no new additional resources attached to this Bill, other than in relation to legal aid—I think that is in the schedules. Amendment 23 seeks to ask the Minister to reconsider that in the light of what I have said about training needs. One only has to think of things such sexual harassment, equality training, and so on, and the massive training requirement that fell upon the public bodies many years ago. I was one of those who underwent that training. It was a significant training requirement, and I expect that the duty of candour and the code of ethics, and so on, will also have a major training requirement. With amendment 23, I am asking the Government to reconsider whether adequate funding is available to organisations to undertake the training that will follow from passing this Bill.
Seamus Logan
Amendment 25 has already been covered in our discussions about “may” or “must”, and I am happy to take that discussion into further meetings with the Minister.
Alex Davies-Jones
I thank both hon. Members for tabling the amendments in this group; I will respond to each in turn.
First, amendment 28 would require there to be a standard template for a code of ethics. The Government recognise the importance of supporting public authorities to develop their codes of ethical conduct, and we commit to doing so. Clause 10 confers a power on the Secretary of State and the devolved Governments to issue guidance that authorities will be required to have regard to when drawing up codes for their organisations.
The newly established Ethics and Integrity Commission will in time also have a role in supporting public bodies by making toolkits, best practice and guidance available for public sector bodies. Although we envisage that standard templates will be useful, as I have already said, there is no one-size-fits-all approach. We wish to retain the flexibility to allow each individual organisation and sector to consider what would work best for them, but support will of course be available for them in doing so.
Amendment 25 would require a public authority to modify its code for specified circumstances or for specified people who work for the authority. I want to reassure Members that clause 9(7) provides for public authorities to specify that their code may apply with modifications in specified circumstances or to people of a specified description who work for the authority.
The intention of clause 9(7) is to enable authorities to reflect different expectations or obligations that apply to different groups of employees—for example, a school’s code of conduct may apply differently to teachers and janitorial staff. It could also reflect different processes that apply in different situations, for example, in an emergency situation compared with everyday business as usual. The Government’s view is that it should be for the authority to determine whether and how it uses that flexibility, noting that it must set out the reasons for doing so—that is important. We do not think that authorities should be required to do so, which is what the effect of amendment 25 would be.
Amendment 23 would require the Secretary of State to ensure that adequate funding is available to public authorities to provide training to their officials on compliance with the code of ethical conduct. I again want to assure hon. and right hon. Members that the Government have an ambitious plan for the implementation of the Bill. The Bill is just one part of the puzzle; it needs to be implemented fully, workably and effectively. It is just part and start of the culture change that we want to see in public sector organisations. The plans will of course include training for public servants, as well as oversight of the codes themselves.
A number of public sector organisations are already working on cultural or leadership programmes, and implementation of the Bill may be undertaken alongside or as part of existing initiatives to ensure that the code is seen as central to driving change in the organisation’s culture on a sustainable basis. The Bill requires public authorities to promote and maintain standards of ethical conduct among those who work for the authority. The duty ensures public authorities will be accountable, while allowing flexibility for the practical arrangements that each authority might put in place. I hope that assures the hon. Member for Aberdeenshire North and Moray East, and I am happy to work with him and others on the implementation of the Bill as it goes forward.
Finally, new clause 4 would require the Secretary of State to commission an independent report setting out whether and how public authorities have complied with the duty of assistance and candour. The Government agree that it is essential that the duties in the Bill are properly upheld and enforced. That is why the Government are ensuring independent oversight of implementation of the Bill’s provisions. The Government have committed to commissioning an annual independent assessment report to ensure that public bodies are complaint with the codes of ethics requirement in the Bill. That report will make clear which parts of the public sector are rising to the challenge and which are failing to do so. We will not be afraid to name and shame who is abiding and who is not.
Compliance with the duty of candour and assistance at inquiries and investigations can, sadly, be judged only by the inquiry or investigation itself. They are responsible for monitoring compliance with the legal duty and for taking enforcement action, such as referring the case for criminal proceedings if necessary. I would like to assure all Committee members that the Government are absolutely committed to ensuring effective implementation of all the measures in the Bill and to achieving the cultural change that is so desperately needed. I therefore urge hon. Members not to press their amendments.
Tessa Munt
I am glad to hear what the Minister has to say. Sunlight is the best disinfectant; if anyone in the public can track through their complaint to something that is published on annual basis—I assume the Minister means annual—that will give people a lot more confidence that this being taken incredibly seriously.
Tessa Munt
I thank the Minister for her contribution. I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Seamus Logan
In light of the Minister’s clarification, I am happy to withdraw amendment 25. However, with regard to amendment 23, I am still unclear as to what exactly the Minister is saying. Is she indicating that beyond the passage of the Bill there will be further clarifications to public bodies as to what training requirements there might be, and that resources will flow from that?
Alex Davies-Jones
I am happy to get back to the hon. Gentleman—but yes, essentially. We will need to look at how we implement the Bill once it becomes an Act—hopefully it will become an Act—and at the requirements that will come from that. I will happily have those discussions with him and every other public authority on how best we do that. Should other resources be needed, that is something that the Government will consider.
Seamus Logan
Given the proceedings today are a matter of record, I am happy to withdraw amendment 23.
Question proposed, That the clause stand part of the Bill.
Alex Davies-Jones
To ensure that public sector culture changes for the better, clause 9 introduces a new duty on public authorities to promote and take steps to maintain high standards of ethical conduct at all times by people who work for the authority. This means acting in accordance with the seven principles of public life, known as the Nolan principles: honesty, integrity, objectivity, accountability, selflessness, openness and leadership.
Under the Bill, all public authorities will be required to adopt a code of ethical conduct. This will ensure comprehensive coverage across the public sector. It will not be enough to simply have a code; authorities will be legally required to publish their codes and take active steps to make their staff aware of the code, and the consequences of failing to comply with it.
Clause 9(4) and (5) set out minimum standards that all codes must meet. Each code must establish a professional duty of candour, and an expectation that those working for the authority will act with candour at all times. Professional duties of candour will be tailored to the sectors to which they apply; they will be meaningful to staff and responsive to the needs of those who use an organisation’s services. The code must set out the practical ways in which ethical standards should be upheld and the disciplinary consequences of failing to act in accordance with the code. This will ensure that the code acts as an aspirational document, setting out best practice, but also as an effective deterrent against unethical behaviour.
Ensuring there are routes where individuals can raise concerns about public institutions is essential for ensuring that issues are identified and addressed as early as possible. Clause 9(5) requires an authority’s code to set out: how staff can raise concerns if they think their colleagues are not acting in accordance with the code; how staff can make protected disclosures, including any whistleblowing policies; and a clear process for external complaints about the conduct of the authority or those working for it.
Recognising the diversity of the public sector, the Bill includes some flexibilities. A code can provide for its standards to apply differently in specific circumstances or to specific groups of people, but it must set out reasons for doing so. For example, it may not be appropriate to apply all of the same standards to doctors as to the cleaning staff in an NHS trust. The Bill allows a public authority to adopt a code produced by another body. For example, schools can adopt a code published by the Department for Education, or local authorities can adopt codes from the Local Government Association. This is to ensure consistency across sectors and will minimise the burdens on smaller organisations.
Question put and agreed to.
Clause 9 accordingly ordered to stand part of the Bill.
Schedule 2
Non-statutory inquiries
The Chair
With this it will be convenient to discuss the following:
Amendment 59, in schedule 2, page 42, line 32, leave out lines 32 and 33.
Amendment 60, in schedule 2, page 42, line 38, leave out sub-paragraph (7).
Amendment 58, in schedule 4, page 46, leave out lines 33 to 37.
Schedule stand part.
Clause 10 stand part.
Ian Byrne
I rise to speak to amendments 55 and 58 to 60, which would strengthen command responsibility. On amendment 55, schedule 2(5) appears to mean that responsibility for the actions of a Government Department is corporate only, and there is an exclusion for civil servants exercising their functions wholly outside the UK. Surely responsibility should lie with the chief executive of the Department, usually the Secretary of State, which I feel that amendment 55 would achieve.
Amendments 59 and 60 would once again strengthen the command responsibility. The purpose of deeming what was done by an office holder as being done by a Department itself is unclear. If those words are simply intended to avoid putting command responsibility on a Minister for the actions of their Department, with respect to the compliance with the duty of candour and assistance, it potentially goes too far.
Schedule 2(3)(6) excludes civil servants from inclusion as public officials if they exercise all their functions outside the UK. I do not see the reason for this exception, and I am seeking some clarification through amendments 59 and 60. I have also tabled amendment 58 for similar reasons to those I have stated for amending schedule 2(5), which would delete sub-paragraphs (3)(d) and (2).
Alex Davies-Jones
I again thank my hon. Friend for tabling these amendments. I hope that I will provide him with some clarification and assurances on exactly why we have adopted this approach in our drafting. The provisions that amendment 55 would amend are typical in legislation. They provide that actions legally done by the Crown or the holder of a particular office, such as a Secretary of State, can be attributed to a Government Department.
The definition of a “public official” in schedule 2(3) includes an individual who
“holds office under a public authority”.
By removing the explicit reference to the holder of a particular office, the amended paragraph would actually, and no doubt unintentionally, narrow the scope of what can be attributed to a Government Department. Only actions that are strictly acts of the Crown could then be attributed to a Government Department for the purposes of the duty of candour provisions and associated offence, as well as the misleading the public offence, not those done legally in the name of the Secretary of State. In our view, this would actually weaken the Bill, and I therefore urge my hon. Friend to withdraw amendment 55.
Amendments 58 to 60 seek to apply the duty of candour and assistance, along with the misconduct in public office offences in part 3, to staff employed on local contracts overseas, including consular staff at embassies. My hon. Friend is correct to note that there are two examples of this exclusion in the Bill, one from the definition of “public official” in relation to the duty of candour, and one from the definition of “civil servant” in relation to part 3. They exclude what are known as country-based staff. These are, for example, locally engaged staff who are employed by an embassy or consulate generally to do administrative or support work, such as site maintenance.
While employed by the embassy or equivalent, these individuals are subject to the laws of the country in which they live, and they are supervised by United Kingdom civil servants who are subject to all parts of the Bill. In excluding locally employed staff from the provisions in the Bill, the Bill follows all precedented approaches relating to these staff, such as the Constitutional Reform and Governance Act 2010. To take a different approach would be a significant and unprecedented change. I hope my hon. Friend understands that clarification and is content not to press amendments 58 to 60 to a vote.
I turn to schedule 2 and clause 10. Many of the Bill’s substantive provisions apply to a public authority or public official. Schedule 2 defines those terms for the purposes of part 2 of the Bill. There are different definitions of “public authority” for different parts of the Bill, and I appreciate that this can be confusing, so I hope to clarify why. Part 2 of the schedule sets out the definitions of “public authority” and “public official” for the purposes of the duty of candour and assistance and the offence of misleading the public. These are broad definitions that are intended to capture anyone, including private companies, who exercises a public function.
Paragraph (2)(4) sets out that there are express reservations for the courts, Parliament and the devolved legislatures, reflecting long-standing constitutional conventions of self-regulation and independence. The north-south bodies established under the Good Friday agreement are also excluded to avoid capturing officials in the Irish Government.
Tessa Munt
In the interests of clarity, will the Minister explain whether the intelligence and security services are now captured by the list in part 2? Will she also explain what happens to regular or reserve forces when they are abroad, when they might be subject to devices such as the court martial? Those are two very specific things.
Alex Davies-Jones
I am happy to clarify both those points, and I assure the hon. Lady that they are captured in this part of the Bill.
“Public official” is defined in schedule 2 as all of those who work for a public authority or hold office under a public authority—including those that the hon. Lady mentioned—and individuals who hold a relevant public office. That is defined to include offices that are established in legislation or by Ministers, where the UK or devolved Government are wholly or mainly constituted by appointment made by the Crown or Ministers, and they exercise functions of a public nature. Former public officials are also included in that—for example, retired civil servants and those who have resigned from the service. There are various exclusions, such as for individuals acting in a judicial capacity, non-executive elected members of a local authority who operate executive arrangements, and those in the private service of the Crown.
Part 3 of the schedule sets out the definition of “public authority” for the provisions on standards of ethical conduct, including the requirement to adopt a code of ethics. That definition of “public authority” is limited to the core public authorities, those commonly understood to be part of the state. The definition includes a list of named public authorities. That includes Government Departments, the devolved Governments, the armed forces, the police, local authorities, NHS bodies, schools, and any bodies that are both established by Ministers of the Crown and are wholly or mainly constituted by public appointments. That is intended to capture the wide range of arm’s length and other public bodies. The definition does, however, include the same exclusions for Parliament, the courts and those north-south bodies that were previously mentioned.
Tessa Munt
I again seek clarity. Are non-executive directors of an NHS trust, for example—who might be party to all sorts of information—within the scope of the Bill? I would also like to check whether school governors—and schools that are academies sometimes use different names, such as “partners”—are also picked up in the list.
Alex Davies-Jones
Yes, I can confirm that. Those provisions of the Bill contain a power to allow the definition to also be extended by secondary legislation to private companies that exercise specified public functions. That would allow the code of ethics provisions to be extended to specified high-risk public functions by secondary legislation—for example, in privately run prisons.
Finally, I turn to clause 10, which provides that guidance can be issued by the national authority if it wishes to do so, for the purposes of chapter 2, which relates to the standards of ethical conduct. That means that the Secretary of State and the devolved Governments can issue guidance on how public authorities can fulfil their duty to maintain high standards of ethical conduct, including in drafting and adopting their codes of ethical conduct.
Clause 9 sets out minimum standards in law that all codes must legally meet. We have the option to use guidance under clause 10 to set out best practice in each of those areas, encouraging authorities to consider what arrangements they can put in place to ensure that the highest standards of ethical conduct are in place. However, as we have already discussed, given the diversity of the public sector, there is no one-size-fits-all approach, and any guidance that is issued will allow each authority to consider how those requirements in the Bill can best be implemented to serve them in a way that best suits them and the needs of their organisations and sectors. All public authorities will be legally required to have regard to the guidance.
UK Ministers will be responsible for guidance for UK and England-only bodies, and the devolved Governments will have powers to issue guidance that relates exclusively to devolved matters. That is to reflect the devolution settlement, and it ensures that the devolved Governments can provide guidance to the public authorities to which they are responsible and—speaking as a Member of Parliament for a devolved area—also that they could potentially also be bilingual, as they would have to be to comply in Wales.
We intend to work closely with our devolved colleagues on the development of any such guidance, and I again put on record my thanks to all the devolved Governments for their collaborative and collegiate approach to working with us on the Bill to ensure that we have a unified approach.