Public Office (Accountability) Bill (Fifth sitting)
(1 day, 8 hours ago)
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Ian Byrne (Liverpool West Derby) (Lab)
I beg to move amendment 51, in clause 11, page 9, line 33, leave out paragraph (b).
The Chair
With this it will be convenient to discuss amendment 52, in clause 11, page 10, leave out lines 28 and 29.
Ian Byrne
Good morning, Sir Roger. The offence of misleading the public is aimed at deterring wrongdoing related to the system, rather than to individual gain or loss, which is adequately covered by the offences under clauses 12 and 13. I feel that proof of harm is therefore inappropriate and will render clause 11 potentially ineffective in a number of contexts.
The provision of this new offence and of the clause 5 offence dealing with the duty to assist are vital in making a duty of candour practical and effective, rather than merely aspirational. It is important to recognise that they are different from the codified misconduct in public office or MIPO offences under clauses 12 and 13. The new offences will enforce the proper functioning of public authorities and official investigations, and prevent cover-ups. That is crucial to what we are trying to do with this legislation.
The MIPO offences deal with individual wrongdoing by the misuse of office for personal gain, or by causing detriment through gross negligence. The new clause 5 and clause 11 offences are therefore complementary to, but distinct from the MIPO offences, in practice and in principle. Subsection (3)(b) inappropriately and unnecessarily adds the ingredient of “harm” to a victim, but the fact that it is contrary to principle is not the central objection.
The real problem is that subsection (3)(b) significantly reduces the effectiveness of the provision, which aims to deter cover-ups rather than punish actual harm to identifiable individuals, although harm to victims may in fact be caused. In some cases, that will not be problematic, but it will negate the provision in other cases where it absolutely should apply: for example, the falsification of crime statistics or the false denial of something previously admitted by state agents to the media concerning a matter of substantial public interest—both actual, real-life cases. That is why I have moved the amendment, and I hope the Minister will recognise that.
The Parliamentary Under-Secretary of State for Justice (Alex Davies-Jones)
It is a privilege to serve with you in the Chair, Sir Roger. I thank my hon. Friend the Member for Liverpool West Derby for outlining his concerns. I hope I will be able to reassure him as to the Government’s intent.
Clause 1 of the Bill clearly sets out that public authorities and officials are expected to act with candour, transparency and frankness at all times. Criminal sanctions should be reserved for the most serious cases. The condition that an act has to have caused, or had the potential to cause harm will achieve that effect. It will not be a bar to prosecution in those cases, and I hope to explain why.
The definition of harm is broad. It includes physical harm, psychological harm, including distress, and economic loss. I reassure the Committee that distress was added on the suggestion of Hillsborough Law Now. That is a non-exhaustive list and it can include other types of harm. The condition includes harm or the potential for harm. The offence does not require there to be proof that the act has caused harm to an individual. In cases such as Hillsborough and Horizon, evidence of harm caused by cover-ups is clear and apparent. We have designed the offence with historical incidents of state failure in mind where, at a minimum, potential distress could be identified and in many cases much more serious harm.
The requirement for an act to have the potential to cause harm is a key condition to ensure that the offence applies only to serious cases. The harm threshold ensures that the public, the police and prosecutors are able to distinguish between those actions that meet the threshold for criminal sanctions and those that should be dealt with through other routes, such as an organisation’s complaints process, or covered by other aspects of the law. The nature of public life is that it is not uncommon for public officials or officeholders to be accused of being untruthful when going about their daily tasks. If it is used to trigger police investigations into vexatious claims, or to engage in political lawfare, rather than for the grave examples of state cover-ups that the Bill was meant to deal with, it risks undermining the offence itself, as well as the intention of the Bill.
The creation of an offence of this kind is a bold step. Hillsborough families spoke of the importance of individual accountability, and we listened. It is clear from our engagement across the public sector that such a strong new measure will—as drafted and when properly implemented—have a serious and real deterrent effect. We are confident that it and every other measure in the Bill will drive forward a culture of candour and truthfulness. I hope that reassures my hon. Friend the Member for Liverpool West Derby, and I request that he withdraws his amendment.
Tessa Munt (Wells and Mendip Hills) (LD)
I beg to move amendment 30, in clause 11, page 10, line 4, leave out paragraph (b).
The Chair
With this it will be convenient to discuss the following:
Government amendment 5.
Amendment 53, in clause 11, page 10, line 33, at end insert—
“’journalism’ means articles for media outlets and news sites. It does not extend to press statements, commentary and social media posts.”
Tessa Munt
It is a pleasure to serve with you as Chair, Sir Roger. Amendment 30 removes the exemption for journalism from the offence of misleading the public, showing that no one, including journalists or public officials writing in a journalistic capacity—including in internal newsletters—can avoid accountability for knowingly or recklessly providing false or misleading information. The purpose of tabling the amendment is to close the loophole that might allow public officials to evade that accountability by presenting misleading information under the guise of journalism. The rationale is to strengthen public trust in Government communications, ensure consistency in applying the law regardless of the medium used, and prevent deliberate attempts to mislead the public through media channels.
The amendment responds to various concerns raised by accountability campaigners, transparency advocates and parliamentary scrutiny bodies that the exemption could be exploited, undermining the effectiveness and credibility of the offence. We have seen with cases that we heard about last Thursday when the Committee took evidence, and with some cases that we discussed on Tuesday, that we cannot ignore the damaging role the media has played in many situations. Some of those examples shed light on public servants using the media to set the narrative, with some of the most awful and damaging consequences for people’s lives and for shedding light on the truth.
We know that—appallingly—the media has been used to set the narrative. With amendment 30, we are thinking about the public and how they perceive this place in particular, and the power structures that move around it. The sense is that legitimacy is key.
Ian Byrne
I want to reinforce what the hon. Lady said regarding the definition of journalism. It must be tightly defined to prevent the bogus defence that we have seen recently, as made by Stephen Yaxley-Lennon—also known as Tommy Robinson. If the purpose of this exclusion is to exempt public service journalists—for example, those working at the BBC—from scope, then it should say that explicitly. There is no reason why it cannot say that. Otherwise, public officials and servants are not journalists, and there is no reason to exempt a lie asserted in the course of writing or broadcasting.
Seamus Logan (Aberdeenshire North and Moray East) (SNP)
It is a pleasure to serve under you, Sir Roger. I rise to support the hon. Member for Wells and Mendip Hills and to draw attention to some examples of why the amendment is important. Members will be familiar with the hacking problem that we had some years ago. In fact, I think one journalist actually served a prison sentence in relation to that. There were many others who may or may not have been involved in that affair. Members will recall how the programme on the Post Office brought huge attention to that scandal and, in fact, led to a major review of the situation. A similar programme called “The Hack”, which may not have gathered as much attention, highlighted the vast extent of the problem of collusion between journalists and the police. Members will also recall that Leveson 2 was cancelled. Leveson 2 was, as I recall, designed to provide stronger regulation for journalism and the media in general. I think we should be concerned about this very sweeping exclusion for journalism, and I will be interested to hear what the Minister has to say on that.
Tessa Munt
I want to put on record that I recognise that journalism has an important place in shedding light on various situations. I understand that, but I am concerned that this particular wording covers everything. I write journalistically every day of my life. I suspect that I have effectively written a whole bunch of journalism in my notes. I publish stuff from my notes, speeches that I make in Parliament and all sorts of things that could be considered journalism. I am going to plead with the Minister to find a way, maybe through discussions with Members, to contain the provision in some way so that we can keep the good—we do not want to throw the baby out with the bathwater—and somehow define what it is that is actually meant by journalism. I wait to hear from the Minister on that.
The Chair
Order. I gently say to the hon. Lady that Members are allowed to speak more than once, but that was an intervention.
Alex Davies-Jones
On Second Reading, we had a very healthy debate on journalism and the impact of media in state failures. It has laid heavily with me. It was a big focus of the debate, and we have taken the issue forward with colleagues across Government and the media to look at how we can best support individuals—victims, especially—when the media has such a crucial role to play.
Amendment 30 seeks to remove the exemption in the offence of misleading the public for any acts done for the purposes of journalism. The purpose of the exemption is to avoid capturing journalistic activity by public service broadcasters that might otherwise meet the definition of a public authority. That is to ensure that the offence does not impinge on press freedom or existing regimes for media regulation. Although behaviour that meets the threshold for the scope of the offence would clearly be unacceptable, we do not believe that this offence is the appropriate vehicle for determining the veracity of media reporting. Without the exemption, only public service broadcasters would potentially be subject to this criminal offence for their journalistic activities and reporting, while other broadcasters would not. The approach ensures that PSBs are still captured in respect of their other public functions—for example, an incident that took place at the BBC itself—but excludes journalistic activity. I hope that that satisfies the concerns of the hon. Member for Wells and Mendip Hills.
Seamus Logan
Before the Minister moves on, one needs to cast one’s mind back to events that took place many months ago, when newspaper and other media reports led to a hotel housing asylum seekers being attacked. One of the rioters sought to burn the hotel down, which could have led to great loss of life. That initially stemmed from media coverage. That is why it is important to try to articulate this provision in a more sensible way.
Alex Davies-Jones
I totally agree with the hon. Gentleman. I have spoken about the need for responsible media reporting to prevent disinformation and misinformation. This provision, however, covers only public authorities. We are therefore capturing only public service broadcasters, so the types of journalism that the hon. Gentleman describes are totally out of scope of the Bill. We would effectively be restricting the BBC, but other journalists would not be captured by the legislation. We need to raise this more broadly with the Department for Culture, Media and Sport and look at it across Government. I recognise his concerns, because I share some of them.
It is very important for the Bill to define what a “journalist” is. My hon. Friend the Member for Liverpool West Derby, alongside colleagues at Hillsborough Law Now, has raised concerns that the exemption, as it is currently drafted, could be interpreted more broadly, which was certainly not our intention. He made a very important point about what defines journalistic activity.
In particular, there are concerns that the exemption might be considered to apply to officials who are not journalists themselves but who are involved with, for example, preparing journalistic materials, such as briefings or press releases by other public figures making public comment, who might improperly seek to use this exemption as a defence for their actions. That is certainly not our intention and I have tabled amendment 5 to provide more clarity.
Amendment 5 clarifies our intention that the exemption is limited to journalistic activity by public service broadcasters and those working for them. This is defined with reference to the Online Safety Act 2023. Because amendment 5 achieves the same aim as the amendment that my hon. Friend tabled and hopefully satisfies his concerns, I kindly request that he does not press his amendment to a vote.
Tessa Munt
I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Amendment made: 5, Clause 11, page 10, line 4, at end insert “by—
(i) a recognised news publisher, within the meaning of Part 3 of the Online Safety Act 2023 (see section 56 of that Act), or
(ii) a person in the course of working for such a publisher.” .—(Alex Davies-Jones.)
This amendment clarifies that the journalism exemption from the offence of misleading the public only applies to media entities and those that work for them.
Dr Kieran Mullan (Bexhill and Battle) (Con)
I beg to move amendment 2, clause 11, page 10, line 35, at end insert—
“(10) A prosecution for an offence under this section shall not be instituted except by or with the consent of the Director for Public Prosecutions.”
This amendment requires the Director of Public Prosecutions to consent to the prosecution of anyone for the offence of misleading the public.
Dr Mullan
It is a pleasure to serve under your chairmanship today, Sir Roger.
As we all know, clause 11 creates the new offence of misleading the public, which is intended, quite rightly, to capture the most serious and culpable instances where public officials knowingly or recklessly provide false or misleading information to the public. The motivations behind the clause are entirely understandable. In the past, we have seen, through scandals and tragedies, how deeply harmful it can be when institutions withhold the truth or put out statements that they know to be false.
However, there is no doubt that, as the Minister herself said earlier, this is a new area of the law. She referred to the fact that politicians often debate what does or does not count as misleading information. Members of the Committee grumbled when I raised this issue at our first sitting, using the live example of what we have been going through in the last couple of weeks, but we have also heard how contentious legislating in this area can be in relation to the media and the role they play. This is a novel area and one that we have to tread carefully in, recognising that we are not able to anticipate fully how this offence will be used, not just by current prosecuting authorities but by different actors under a different regime, or by private citizens. We also know that there have been attempts to prosecute individual politicians for offences of misleading people, so this is very much a live issue. With an offence of this seriousness that is framed in this way, we must ensure that it is applied proportionately, fairly and with great care. That is the purpose of the amendment; it is to ensure that no prosecution under the clause can be brought without the consent of the Director of Public Prosecutions.
Although clause 11 sets out a structured test for what counts as being “seriously improper”, and the explanatory notes make it clear that the offence is intended to target only the most egregious conduct, the reality is that the clause interfaces with the political environment in a way that few other offences do. “Misleading the public” is a phrase that, regrettably, is used daily in our political discourse. Accusations of “misleading the public”, made fairly or unfairly, are frequently levelled in debates, campaigns and correspondence. Therefore, we need to be absolutely certain that this new criminal offence cannot become a vehicle for politically motivated complaints, vexatious charges, over-zealous private prosecutions, or attempts to use the criminal law to litigate policy disagreements. Requiring the personal consent of the DPP is a well-established constitutional safeguard in precisely this kind of context. It would ensure that decisions to prosecute are taken objectively, independently and at the highest level.
It is not only political actors that we must consider. Senior public officials, regulators, police chiefs, NHS managers or anyone else in a position of public authority might find themselves being accused of misleading the public in complex and fast-moving situations. Often, such situations involve imperfect information, operational pressures or competing obligations. The clause rightly makes it clear that accidental or inadvertent misleading of the public should not be criminalised. However, we must ensure that establishing the threshold for a prosecution remains firmly under the control of the independent prosecuting authority, and not subject to either the ebb and flow of public anger or the risk of tactical litigation.
Some may reasonably argue that the CPS would in practice be involved by discontinuing prosecutions and bringing them under the Director of Public Prosecutions, but that in itself could create a storm for an individual subject to that action. That is why we think a tighter safeguard should be required.
It is not in the amendment, but I would like to ask the Minister about what thought has been given to whether prosecution should be subject to the Attorney General’s permission. Forgive me: I do not know if that is already part of the legislation; I do not think it is, but the Minister will know. For example, when it comes to public order offences—another potentially contentious area—we ask the Attorney General to give permission for prosecution to serve as a safeguard against the inappropriate use of measures.
My final, more general point about clause 11, which we touched on earlier, is about the maximum sentence of two years. What are the Minister’s thoughts on whether there have been any common law versions of a prosecution for this sort of thing in which someone was given a sentence of more than two years? Are the Government sure that this is not unnecessarily constrained compared with the current common law position, which is unlimited? I appreciate that the offences in question are normally more to do with misconduct rather than misleading, but it would still be helpful to get that reassurance.
Alex Davies-Jones
I thank the shadow Minister for raising this important issue. We agree wholeheartedly with the intention behind the amendment, and I can assure him that the Bill achieves that intent. Schedule 3 makes further provision regarding clause 5 and clause 11 offences. Paragraph 2(2) sets out that,
“Proceedings for an offence under section 11 may be brought only by or with the consent of the Director of Public Prosecutions.”
With that clarification, I hope the shadow Minister will withdraw his amendment. Hopefully, I can answer some of his other queries as we move through the debate.
Clause 11 creates a new offence of misleading the public, which is designed to capture the most serious incidents of misleading the public, such as the behaviour seen after Hillsborough, where officials intentionally spread a false narrative to protect their reputation and caused harm as a result. That, as the shadow Minister rightly states, is punishable by up to two years in prison. We all know the harm that caused and how, three decades on, families are still fighting for justice and accountability for what the spreading of that narrative did. The Independent Office for Police Conduct report on Tuesday was clear: a lie was told; a false narrative was spread to protect reputations and avoid consequences. The purpose of the Bill is to ensure that no family ever has to go through what those families went through and continue to go through. I can only imagine how hard that report was to read and the pain that they continue to feel.
The new offence will ensure that when a public official has misled the public, there is accountability. To have committed the offence, an authority or official must have acted with the intention to mislead the public or been reckless as to whether their actions would do so. By reckless, we mean a person acting with the knowledge that there is a risk that they might mislead the public and taking that risk without reasonable justification. It does not include accidental mistakes or inaccuracies. They must have known or ought to have known that their act is seriously improper.
It will be for the judge and the jury to determine whether that test has been met, but clause 11(3)(a) sets out minimum conditions that must be present: that the act—
“involved dishonesty that was significant or repeated…in respect of matters of significant concern to the public”.
That will avoid capturing minor instances of lying or misleading on trivial political or private matters. The act must have caused or have the potential to cause harm. Harm, as we have already discussed, is broadly defined, including economic, physical or psychological harm, including distress. The purpose of this is to avoid capturing inconsequential matters, such a Minister lying about where they went to university or competing in a chess tournament or a local government official overstating their council’s performance. Although these sorts of lies should entail professional consequences, we do not think they meet the bar for criminal sanctions. The individual must also have departed significantly from what would have been expected of them in carrying out their functions. This is to ensure that where it may be necessary to mislead someone as part of a person’s job—for example, as part of an undercover police operation—that is not captured.
This clause as introduced does not apply to devolved matters. We have written to all the devolved Governments to request that the offence be extended in their jurisdiction in line with the other provisions on duty of candour, which apply across the UK. The Northern Ireland Executive, the Welsh Government and the Scottish Government have all confirmed their agreement to extend the offence, and we will be extending the offences accordingly. We hope to bring forward amendments on the territorial extent on Report to ensure full coverage for the United Kingdom.
Subsection (4) also excludes any act done for the purposes of journalism. That is to avoid capturing public service broadcasters and those working for them who would otherwise meet the definition of a public official. That is to ensure that the offence does not impinge on press freedom or existing regimes for media regulation. Although behaviour that meets the threshold for the scope of the offence would clearly be unacceptable, we do not believe that this offence is the appropriate vehicle for determining the veracity of media reporting, as we have already discussed.
Subsection (6) includes a reasonable excuse defence, with specific defences for the exercise of functions by the intelligence services and armed forces on active service. That is necessary to make it clear that when officials can prove that they misled the public to protect national security or this country’s defence operations, they are not subject to criminal sanctions. I stress, however, that this will not prevent the successful prosecution of members of the security services or armed forces who mislead the public for any other purposes, such as personal gain or to protect their reputation.
This is a transformative offence that will ensure that when something goes wrong and public officials lie to the public, there are serious consequences. It will act as a powerful deterrent against the sorts of state cover-ups that we have sadly see all too often.
The hon. Member for Bexhill and Battle asked me about offences which potentially attract two or more years in prison. I will write to him on that and come back on the specifics, as well as on his question about the Attorney General. With that, I commend clause 11 to the Committee.
Dr Mullan
I thank the Minister for explaining the clause to us. She has provided the reassurance that we are looking for, and I look forward to receiving further material in writing. I recognise that the Government are attempting to craft an offence that has a high threshold and does not interfere with the wide range of situations that people might seek to apply it to, but I worry that we might end up seeing such questions tested in the courts repeatedly before there is a settled view on what they translate into in reality. I am not sure that it will be as simple as we might think in reality. On that basis, I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 11, as amended, ordered to stand part of the Bill.
Schedule 3
Offences under Part 2: related provision
The Chair
With this it will be convenient to discuss:
Amendment 57, in schedule 3, page 44, line 31, after “section 5” insert “or section 11”.
Schedule 3.
Ian Byrne
Amendment 56 is to schedule 3, which place limits on extraterrestrial jurisdiction for offences. I am gravely concerned, because often in the history of cover-ups, those responsible have sailed off into the sunset with fat pensions, unscathed and untouched by justice. The whole point of the Bill is to close that down, but I have a real fear about the current draft of the Bill. Whether an offence is committed outside the UK should be absolutely irrelevant; it should be right within the scope of the Bill.
Paragraph 1(1)(a) and (b) is open to being construed cumulatively. If caught by clause 5 and clause 11 offences, an individual has to be both a UK national and inhabiting a residence in the UK. There have been many cases where former public officials have retired abroad and been non-compliant with official investigations, and that cannot be allowed to happen. The IOPC report showed that police officers who had been involved in the corruption of Hillsborough had absolutely got away with it, with no sanctions put on them, and lived the rest of their lives with full pensions. It really worries me that people like them could evade by justice by moving abroad.
If accepted, amendment 57 would provide that paragraph 1(2) should apply to clauses 5 and 11, to absolutely ensure that public bodies and individuals within bodies who have failed the British people can be adequately held to account wherever they are in the world. I really hope the Minister considers the amendments, by which we is to strengthen the scope of the law and make sure that those who are responsible for cover-ups and who have harmed people using the hand of the state are held accountable, wherever they reside.
Dr Mullan
Despite not relating directly to the Bill, the matter of pensions has come up in Committee a couple of times. We do need to explore that, because there are many situations where people walk off into the sunset. It seems to me that the one lever we still have over people is their pensions. Have the Government considered how such a provision might be used in the future? The Opposition will be looking at it.
Alex Davies-Jones
I will happily raise that issue with the Pensions Minister in our discussions.
I thank my hon. Friend the Member for Liverpool West Derby for tabling the amendments. I hope to be able to provide some clarification. Amendments 56 and 57 seek to ensure the same extraterritorial extent applies for the offences of failure to comply with the duty of candour and assistance and the offence of misleading the public.
The intended effect of amendment 56 is already achieved in the Bill as drafted. In schedule 3, paragraph 1(1), the disapplication does not apply if any the criteria of sub-paragraph (1)(a) or (b) are met. It is already an “or” list, not an “and” list. That follows the standard parliamentary drafting convention. To add an unnecessary “or” between sub-sub-paragraphs (a) and (b), when that is already the meaning, would risk putting the position in doubt in other legislation across the statute book and could cause confusion.
Paragraph (1)(2) refers only to the clause 5 offence because the clause 11 offence applies only in England and Wales. A case could not be heard by a court in Scotland or Northern Ireland. However, as I confirmed earlier, we have in principle agreements to extend clause 11 offences to Scotland and Northern Ireland, and we are working with the devolved Governments to draft amendments, which we intend to bring forward on Report, so that the offence is UK-wide.
Alex Davies-Jones
Yes, they are indeed.
Schedule 3 works alongside clauses 5 and 11 to make some additional provisions about the offence of failing to comply with the duty of candour and assistance and the offence of misleading the public. Paragraph 1 provides that an offence may be committed outside the UK only if the person who committed the offence is a UK national, an individual who habitually resides within the UK, or a body incorporated in the UK. In practice, that means that UK civil servants working abroad are captured, but country-based staff employed by UK embassies, who perform a range of predominantly administrative or maintenance roles are not. These are local staff subject to local laws and regulations instead and their exclusion is consistent with other precedents.
Paragraph 2 provides that consent from the Director of Public Prosecutions in England and Wales or from the Director of Public Prosecutions for Northern Ireland is required before proceedings for the breach of duty of candour offence may be brought forward. I hope the shadow Minister is reassured on that point. The same consent is required in England and Wales for proceedings for the offence of misleading the public, which as I just said, currently only applies in England and Wales, but we are making provisions to apply it to the UK as a whole.
Paragraph 3 makes it clear that where a body commits an offence and a relevant person, for example a director, manager or partner, consented or connived, both the individual and the body are liable. Finally, paragraph 4 provides that where an offence relates to unincorporated bodies, proceedings must be brought against the name of the body.
Alex Davies-Jones
I will speak to each of the clauses in turn. Clause 12 will introduce the first of two new statutory offences to replace the common law offence of misconduct in public office. In its 2020 report, the Law Commission recommended that the common law offence should be abolished and replaced with two new offences that broadly replicate the coverage of the common law offence. In acting on those recommendations, the Government do not intend to change significantly the type of conduct the criminal law will capture. Like the common law offence, the new offences are intended to capture only wrongdoing at the most serious level.
The clause establishes the new offence of seriously improper acts, and is designed to capture the conduct previously caught by the concept of wilful misconduct under the common law offence. The seriously improper acts offence is committed when a person who holds public office uses that office with the intent to obtain a benefit for themselves or another person, or to cause detriment to someone else. They must know or ought to have known that any reasonable person would regard their act as seriously improper.
The offence can capture a wide range of conduct. “Using” an office can include both acts and omissions. “Benefit” and “detriment” mean any benefit or detriment including, but not limited to, financial gain or loss, protection or enhancement of or damage to a person’s reputation, and benefits or detriments of a physical or sexual nature, whether temporary or permanent. When we talk about protection or enhancement of or damage to a person’s reputation, we intend to capture serious situations where someone uses their office in the way that we associate with the aftermath of the Hillsborough disaster: the manipulation of evidence in order to protect the reputation of a person, including an organisation, or the spreading of allegations about other people, designed to damage their reputation.
The clause is about not the usual back and forth of everyday politics, but severe abuses of power that undermine the very basis of public service. An act is seriously improper if a reasonable person would consider it so. There is a list of factors that the jury must consider to make that determination, including the extent to which the act involved an intention to mislead or be dishonest by withholding, covering up or misusing information. A defence is available if the person can show that they had a reasonable excuse for their action—for example, a public office holder has to disregard one fraudulent benefits claim to uncover a more serious, larger scale benefits fraud. The offence is indictable and carries a maximum penalty of 10 years’ imprisonment. That puts it on par with similar statutory offences, such as bribery and fraud.
The consent of the Director of Public Prosecutions will be required to bring a prosecution under the offence. That is to safeguard against the risk of spurious claims against public officials, including politicians. We have already heard examples of that. It will ensure that only cases that are serious in nature and justify criminalisation are prosecuted. It does not require the personal consent of the director—consent can be delegated—so it should not cause any undue administrative burden.
The clause will ensure that serious misconduct and corrupt behaviour by those in public office will continue to result in criminal sanctions, and that those who abuse positions of public trust are held to account for their actions. I commend the clause to the Committee.
Clause 13 establishes the new offence of breach of duty to prevent death or serious injury. It is designed to capture the conduct previously caught by the concept of wilful neglect of duty under the common law offence. The new offence is committed when a person who holds public office either causes or creates significant risk of causing someone else to suffer critical harm, in breach of a duty to prevent other people from suffering such harm. They must know that they are under such a duty, and their act must fall far below what could reasonably have been expected of them in the circumstances. The offence requires that the person be under a duty to prevent critical harm that arises by virtue of the public office that they hold. That means that the offence can be committed only by public office holders whose roles inherently involve a duty to prevent critical harm—for example, service personnel, firefighters and the police. It does not apply to public office holders whose roles do not put them under a duty to protect the public from critical harm.
The offence is made out only if the public official knows or ought to know that they are subject to that duty. The breach of duty must cause either critical harm or a significant risk of that harm materialising. It will not capture cases where a negligible or insignificant risk of harm is caused. The breach of duty must also have been intentional or reckless. These are both very high criminal thresholds. To act recklessly means to proceed in full awareness of the potential outcome and in circumstances where it is unreasonable to take the risk.
Only the most serious breaches of duty are captured by the offence. The requirement that the act must fall far below the standard that could reasonably be expected of the person in the circumstances ensures that minor or honest mistakes and legitimate but risky operational decisions made in challenging circumstances will not be captured. For example, a law enforcement officer having to decide in the moment whether to take a particular risky operational decision would be caught by the offence only if they intentionally recklessly breach the duty, their act falls far below the standards reasonably expected of them in those circumstances, and they have no reasonable excuse for their actions.
The offence will be triable on indictment only and will carry a maximum penalty of 14 years’ imprisonment. That is commensurate with other offences where a failure of duty leads to serious or critical consequences, such as gross negligence manslaughter. As with the offence in clause 12, the consent of the Director of Public Prosecutions will be required to bring a prosecution under the offence in clause 13. That is to guard against the risk of spurious claims being made against public officials in this position and to ensure that only the most serious cases are prosecuted.
Clause 14 clarifies the territorial application of the new offences in clauses 12 and 13. It makes clear that a public office holder can commit the seriously improper acts or breach of duty offences by their actions either within England and Wales, or in other UK territories such as Scotland or Northern Ireland. The offences in clauses 12 and 13 may also be committed by acts done outside the United Kingdom provided that, at the time of the act, the public office holder is either a UK national or habitually resident in England and Wales. The clause ensures conduct like this could be caught by the new offences.
Dr Mullan
I want to make some brief points. I welcome the maximum sentences, which are clearer and in a more natural range, and there is not the uncertainty that I think we still have with the misleading the public offence.
I want to ask the Minister about the role of MPs, however, because she will know that our privilege to speak in the Chamber, including to make allegations of defamation, is unfettered. We can say things that do damage people’s reputations and that cause all sorts of issues, but we are immune from civil procedure. I am not sure how the common law has dealt with equivalent sorts of scenarios, but I can imagine an MP trashing the reputation of a business and that business going under, causing huge harm to an individual who then feels as though they should be able to have a say through this route.
I think we all agree that, although it can be abused, that privilege is really important to the operation of our democracy. Even if not now—the Minister may not have considered this before—it would be helpful to have a written note on the Department’s view about the potential misuse of that privilege to say whatever we want in Parliament, without restriction.
Tessa Munt
I previously asked for some clarity on coroners. I accept the position on His Majesty’s chief coroner, and the Minister confirmed about His Majesty’s area coroner. I presume senior coroners are also included in that remit, but I want to be very clear, because they are the people who very often see exactly what is happening on the ground.
Alex Davies-Jones
Yes, I can confirm that.
Question put and agreed to.
Clause 12 accordingly ordered to stand part of the Bill.
Clauses 13 and 14 ordered to stand part of the Bill.
Clause 15
Holders of public office
Question proposed, That the clause stand part of the Bill.
The Chair
With this it will be convenient consider:
Government amendments 11 to 13.
Schedule 4.
Alex Davies-Jones
All the Government amendments relate to our measures on the offences of misconduct in public office. Government amendment 11 adds members of the Parole Board to schedule 4 to the Bill, which sets out the list of those who are considered public office holders for the purposes of the new statutory offences in part 3 of the Bill: seriously improper acts and the breach of duty to prevent death or serious injury. The amendment is not being made because there has been a change in policy; rather we have determined that making explicit reference to the Parole Board is a clearer approach than relying on paragraph 21 of the schedule to capture this body. As the offences currently extend to England and Wales only, the reference added to the schedule is only to the parole board that operates in that jurisdiction.
Government amendment 12 ensures that all those carrying out the judicial functions of the coroner are included in schedule 4, regardless of how they are appointed. A deputy chief coroner can be appointed in two ways: those qualified by being a High Court or circuit judge are appointed by the Lord Chief Justice, and those qualified by being a senior coroner are appointed by the Lord Chancellor. The amendment makes it clear that we intend to capture both. It is not a policy change, merely a drafting refinement.
The Chair
With this it will be convenient to discuss the following:
Clause 17 stand part.
Schedule 5.
Alex Davies-Jones
Clause 16 abolishes the common law offence of misconduct in public office, which our new statutory offences will replace. It also sets out arrangements for the transition to the new offences, ensuring that the common law offence will continue to apply to any acts done, or begun, before its abolition. The clause also makes it clear that we are not affecting other offences, or the civil tort of misfeasance in public office.
Clause 17 and schedule 5 amend existing legislation to reflect the abolition of the common law offence and the introduction of the new statutory offences. Schedule 5 sets out the specific—and minor—changes to three pieces of existing legislation.
Question put and agreed to.
Clause 16 accordingly ordered to stand part of the Bill.
Clause 17 ordered to stand part of the Bill.
Schedule 5 agreed to.
Clause 18
Parity etc at inquiries and investigations
Question proposed, That the clause stand part of the Bill.
The Chair
With this it will be convenient to discuss the following:
Government amendments 14 to 17.
Schedule 6.
New clause 5—Conduct of public authorities and access to legal aid for seriously injured survivors who are participating in inquests or inquiries—
“(1) Legal aid must be made available, without a means test, to seriously injured survivors who are participating in inquests or inquiries where there are reasonable grounds for believing the matter under investigation relates to the conduct of public authorities tasked with carrying out public functions, or public officials working for bodies in a public capacity, in connection with the discharge of their public duties.
(2) The Secretary of State must, within three months of the Act receiving Royal Assent, make regulations to—
(a) add civil legal services to Part 1 of Schedule 1 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 in connection with proceedings relating to seriously injured survivors who are participating in inquests or inquiries as under subsection (1);
(b) amend the Civil Legal Aid (Merits Criteria) Regulations 2013 (S.I. 2013/104) for the purposes of providing criteria for a determination for legal representation in respect of cases under subsection (1).
(3) This section comes into force on the day on which this Act is passed.”
This new clause would extend civil legal aid to seriously injured survivors who are participating in inquests or inquiries where the conduct of public bodies or public officials is in question.
Alex Davies-Jones
Clause 18 and schedule 6 represent a milestone moment in addressing the disparity in power often faced by bereaved families and other affected persons in the inquest and inquiry system. They provide for non-means-tested legal aid for bereaved families at all inquests where a public authority is an interested person, the widest expansion of legal aid in a generation.
Douglas McAllister (West Dunbartonshire) (Lab)
Clause 18(e) provides for non-means-tested legal aid to bereaved family members at inquests. The Bill is intended to introduce UK-wide legislation. I understand that the Minister has engaged in positive talks with the Scottish Government over a number of months because of the devolved nature of Scottish legal aid at fatal accident inquiries. Are we any further forward with those talks? Will the Scottish people enjoy the same access to legal aid as the rest of the UK?
Alex Davies-Jones
I can confirm to my hon. Friend that we have a strong and positive working relationship with the Scottish Government and all the devolved Governments about the Bill. The Scottish Government have written to ask us to extend the provision to Scotland. We are working with our colleagues in Holyrood and across the UK to see how we can best apply that. I will happily update my hon. Friend on those discussions, which are positive and ongoing.
The provisions in the Bill on legal aid go further, setting out a common framework of obligations and accountability for public authorities and their legal teams when they participate at public inquiries and coroner investigations. I will now get into the detail. Parts 1, 2 and 3 of schedule 6 impose a common framework of obligations on public authorities and their legal teams in respect of their participation across statutory public inquiries, non-statutory public inquiries and coroner investigations. The schedule inserts proposed new section 34A into the Inquiries Act 2005 and amends section 42 of the Coroners and Justice Act 2009 to provide that guidance may be issued by the Lord Chancellor to set out the principles that should guide the conduct of public authorities in respect of public inquiries and coroner investigations.
Schedule 6 inserts proposed new section 34B into the 2005 Act and proposed new section 42A into the 2009 Act to place a public authority that is a core participant at an inquiry, or an interested person at an inquest, under a duty to engage legal representatives to act for the authority only if, and in so far as—this is important—it is necessary and proportionate, and to take steps to ensure that those representatives conduct themselves in accordance with the guidance from the Lord Chancellor. In our evidence, we heard how bereaved families feel at an inquest when they turn up with their legal aid-appointed person—or are sometimes not even given a legal aid-appointed person—and the public authority has an army of barristers. This measure seeks to curtail that and to ensure equal representation and parity of arms.
The schedule amends section 41 of the 2005 Act and section 43 of the 2009 Act to make provision for an “overriding objective” to be created in an inquiry or inquest. In particular, that may include objectives for, or in connection with, ensuring that relevant affected persons are able to participate fully and effectively, maintaining the inquisitorial nature of proceedings, and that they are given sufficient information about proceedings.
The schedule also inserts proposed new section 34C into the 2005 Act and amends schedule 5 to the 2009 Act to create a power for an inquiry chair or coroner to raise concerns and report the matter to the person who has overall responsibility for the management of the public authority—or such other person who has power to take action—as to the conduct of a public authority or its legal representatives. A person to whom the report is made must give the inquiry chair or coroner a written response.
Part 3 of schedule 6 makes further modifications to schedule 5 to the 2009 Act to provide that where a report is made by a coroner, a copy must be sent to the chief coroner. Part 3 also amends section 36 of the 2009 Act to add those reports and their responses to the matters that must be summarised in the chief coroner’s annual report to the Lord Chancellor. It further amends section 43 of the 2009 Act to provide that regulations made under that section may make provision in respect of reports made by coroners in relation to concerns over the conduct of public authorities. Part 2 of schedule 6 makes it clear that changes made to the Inquires Act 2005 by part 1 of the schedule should apply to relevant non-statutory inquiries, albeit with certain modifications as set out in paragraph 2(3).
Part 4 of schedule 6 makes expanded provision for legal aid at inquests. It details a number of amendments to the legislation and regulations underpinning the legal aid system. Those, when taken together, keep applications to open or reopen an inquest in scope of legal aid; set out that, where a public authority is an interested person in the inquest, non-means-tested legal aid for the inquest can be accessed by families; and provide for conditions in relation to advocacy funding.
Part 4 begins with four amendments to the Legal Aid, Sentencing and Punishment of Offenders Act 2012, known as LASPO. The first two amendments are technical and update references to “the Coroners Act 1988” to say “the Coroners and Justice Act 2009”, which has largely repealed and replaced the 1988 Act. The third amendment brings applications under section 13 of the 1988 Act into scope of civil legal services. Section 13 allows bereaved family members to submit a request to open or reopen inquest proceedings to the High Court. The Government recognise the importance of bringing such applications into scope of legal aid, and this amendment to LASPO delivers that. Unlike inquests, section 13 applications are adversarial court proceedings in the High Court. As per determinations for section 13 applications under current ECF—exceptional case funding—legal representation will be provided, rather than legal help and advocacy funding, and applications will be means-tested.
The fourth amendment to LASPO insert a new paragraph into part 3 of schedule 1 to the Act to set out the conditions under which an individual can access funded advocacy services at inquest proceedings. The conditions are that, first, a public authority must be an interested person at the inquest and, secondly, advocacy must not have already been made available to another family member of the deceased in relation to the same inquest or a linked inquest. Whether an inquest is linked—that is, whether it is investigating deaths stemming from the same incident—is a matter for the coroner hearing the case.
Part 4 of schedule 6 then turns to amendments to the supporting regulations. The first set of amendments are to the Civil Legal Aid (Financial Resources and Payment for Services) Regulations 2013. There are three amendments to regulation 5, in particular sub-paragraph (m) and proposed new sub-paragraph (ma). Those sub-paragraphs allow for the financial means test to be disapplied when an individual applies for legal help or advocacy at an inquest where a public authority is an interested person. The third amendment at sub-paragraph (n) is a purely technical amendment that facilitates the changes. By disapplying the means test for legal aid at inquests where a public authority is an interested person, the changes will truly make a difference for the bereaved. This will be a key turning point in rebalancing the system.
Part 4 of schedule 6 also amends the Civil Legal Aid (Merits Criteria) Regulations 2013. The amendments ensure that not only legal help, advice and assistance but advocacy is available as an appropriate form of civil legal services at an inquest where a public authority is an interested person. They also ensure that legal representation is an appropriate form of civil legal service in an appeal to the High Court to open or reopen an inquest under section 13 of the Coroners Act 1988. The amendments will ensure that the bereaved have access to the appropriate form of legal aid for the proceedings that they are experiencing, ensuring that they are appropriately supported at each stage.
Finally, amendments 14 to 17 are minor technical amendments. They amend a reference in schedule 6 to a new paragraph inserted by the Bill into schedule 5 to the Coroners and Justice Act 2009, and relocate the position of a new paragraph inserted by the Bill into the same schedule to the 2009 Act. I commend the amendments, and the clause and schedule, to the Committee.
Dr Mullan
This is one area of the Bill where we need some clarity about how exactly it will operate. Before becoming an MP, I worked for a patient advocacy organisation, so I saw at first hand just how challenging inquests can be for patients’ relatives. I spoke to so many families who had to sit and watch while a portrayal of events, which they had no ability to challenge, was given at an inquest. I am sure that many Members have dealt with individuals who have had an experience with a coroner, outside of the big national scandals, that was not as they would want it to be. There is an underlying challenge that coroners are very different from other public bodies, agencies and office holders, because to some extent they can just do their own thing. That makes it very hard to achieve a consistent approach.
I have a number of questions. First, who exactly will decide whether the public authority’s costs are reasonable? The chief coroner was very clear that she felt that coroners were not equipped to do that, and even if they were, it would take time and resources. We all need to understand what the process will be. Importantly, will there be a mechanism for someone to challenge that? If the coroner is not personally engaged with everything that this Government are trying to do with the Bill—as we are sympathetic to—and they do not make any reasonable attempt to control a public body’s costs in line with what we are asking of them, what is the route for challenge?
I have heard concerns from people who work on the frontline of a public body. Sometimes, the reputation of the organisation is defended, but conversely, the reputation of an individual can be at risk in these sorts of situations—I go back to my experience in healthcare. We would not want a perverse scenario where the organisation throws an individual under the bus and makes no particular effort to ensure that their role is adequately explained and defended—accepting that we do not necessarily agree technically that it would be defending, but rather inquisitorial.
Complex family arrangements were raised in the evidence sessions. How exactly does it work if the parents are divorced? The Minister touched on that towards the end of her speech, and mentioned that another family member must not have applied for funding. Again, would there be a limit? Could every single individual family member get help? How would that be determined? The question that politicians always have to come back to is that of funding. Is this new funding that has been allocated to the Ministry of Justice outside of its existing budget, for what we imagine would be a significant increase in legal aid spending? Will the Minister reassure those people who have an interest in other areas of legal aid spending that they will not be reduced as a result of this new area of legal aid spending? I just want to understand where the money has come from.
Alex Davies-Jones
I am grateful for those questions. On who will police the spend, it will not be for the coroner to police it; it will be for the public bodies themselves. They will be under an obligation, because they will also be funding the legal aid for the bereaved families, depending on which public authority or arm of government it comes under. If it is health, for example, that Department will fund the legal aid costs of the bereaved families; if it is the Prison Service, the funding will come from the Ministry of Justice; if it is police, it will be the Home Office, and so on.
Alex Davies-Jones
No, there is no new money for this legislation. Therefore, we hope that the spending that public authorities carry out for inquests will match how much they have to fund for the bereaved families. We hope that this will also be a deterrent against arming up officials when going towards what should be an inquisitorial process.
Alex Davies-Jones
Absolutely. My hon. Friend makes a good point. This is to encourage good behaviour. It is to encourage public authorities to not come armed with many barristers, and to discourage the David and Goliath story that we have heard far too many times.
On the shadow Minister’s point about individuals within a public authority potentially not being represented, that is not something that we want to curtail. For example, a frontline healthcare worker could have representation via their union and the public authority could have representation. This is about making sure that the family has adequate legal representation too. I will come back to his other points after I take another intervention.
Tessa Munt
Does the Minister feel that this provision might actually lead to some clarity about the amount of money that is spent by local authorities on defending themselves and their position, and the actions that they may have taken? It is almost impossible to get them to cough up. They just say, “Oh, well, it’s business as usual—that’s what we always do.” I am hoping that this measure will give clarity.
Alex Davies-Jones
The hon. Lady is bang on the money, literally. I cannot tell her how frustrating it has been as a Minister trying to figure out a way forward on this—trying to figure out the cost to the public purse and the taxpayer—when we do not have that data. This will enable us to have the data on exactly how much is being spent by public authorities and Government Departments on legal aid.
This is taxpayers’ money. We heard evidence from the bereaved families that one of the biggest kicks in the teeth for them was that they as taxpayers were funding the legal support for the public authorities that were accused of having a hand in the death of their loved one. That is totally perverse and unacceptable.
Alex Davies-Jones
I welcome that point. We have put new powers in the Bill for the coroner to challenge public authorities if they are acting inappropriately. What they bring forward has to be proportionate and reasonable. There are powers on the coroners there. They have to compile a report and complain to the relevant bodies or those individuals with the power to take action against the public authority for not acting in accordance with the guidance set out by the Lord Chancellor or the provisions in the Bill.
Dr Mullan
But that is kind of circular, because it takes us back to the coroners. Are the coroners in a position to do that? It is not something they have to do at the minute. As we heard in evidence, judges do that—it is part and parcel of their work—but it is not part of what coroners do. What are we doing in terms of support, information and guidance, and then monitoring that they actually do it?
Alex Davies-Jones
I have a very close working relationship with the chief coroner, as the hon. Member would probably expect given my role. We work together very closely, and we have had significant conversations about how to work together going forward and about the implementation of the Bill, which will be crucial to its effectiveness. It is important to recognise that coroners, although distinct in their nature, are the judiciary. They are independent and they do have relevant expertise in this regard. I will be working closely with the chief coroner on implementation.
I am not sure whether the hon. Member heard what I said about annual reporting, but any experiences of a public authority failing to abide by the coroner’s instructions will have to be put into the annual report that the chief coroner will provide to the Lord Chancellor—all of this has to be captured—and we will not hesitate to name and shame those who are failing to abide by the duties in the Bill.
Seamus Logan
I may be misreading the evidence—if I am, I accept that—but I want to draw the Minister’s attention to the evidence given to us by Chris Minnoch and Richard Miller during the Committee’s second sitting, last Thursday afternoon. I came away from that sitting with a very distinct impression that those two witnesses were of the view that the legal aid system might need to be expanded. We find that view from Mr Minnoch, the chief executive of the Legal Aid Practitioners Group, at columns 60 and 61. He seemed to suggest that his expectation was that legal aid would be expanded in this context.
Alex Davies-Jones
We are expanding legal aid. The provision of non-means-tested legal aid for bereaved families at an inquest or inquiry where there is a public authority as an interested person is the biggest expansion of legal aid for a generation.
Seamus Logan
That is fair enough, but the Minister stated earlier that there are no additional resources as a result of the application of the Bill.
Alex Davies-Jones
That is correct. There is no new money for this; it has to be found out of existing Government Department budgets. This is in order to, as we have debated, figure out exactly how much is being spent by public authorities and by local government departments on legal aid and on their contribution to an inquest or an inquiry. We will be working with the legal aid providers very closely and we will be monitoring this, as I am sure will the Treasury, but that is the determination of this Bill and that is the mechanism by which we will be operating.
Seamus Logan
If I interpret the Minister correctly, what she is saying is that, through the application of the Bill, there may be a need to review the position in due course.
Alex Davies-Jones
I can confirm that we are working very closely on a way forward on the framework for the legal aid mechanism of the Bill. I will happily update Members and the House as we progress on how that will be implemented, and we will be working with providers on that.
On the shadow Minister’s final point, about complex family relationships, we are alive to this issue and are working with organisations and officials to see how we can best approach it. We have made provision in the Bill for one advocate adviser per bereaved family, but we recognise that there are complex family arrangements, so there are provisions in the Bill for other family members or other interested people to make an application under LASPO to access more legal aid. However, we have heard the concerns raised in Committee, and we are looking to see what more we can do to support families.
Tessa Munt
I have had discussions with the Minister about the Bill’s relationship with the families of those who are deceased, and I am rather hopeful that she will consider new clause 5. It has been implied that people who are seriously injured or survivors are included in the Bill, but I would like to be very specific about that particular group. The new clause seeks to ensure that those who are seriously injured but are survivors have equal access to legal support, without means testing, as bereaved families when participating in inquests, inquiries, investigations and independent panels. Many survivors face really complex legal processes when dealing with trauma, and without non-means-tested legal aid they may be unable to engage effectively or have their interests represented. Extending legal aid to that group of people would remove financial barriers, ensure meaningful participation opportunities for them, and help to ensure that inquiries and inquests—in which I have been involved myself—can fully examine the conduct of public bodies and public officials, and promote accountability and justice. Will the Minister please address that?
Alex Davies-Jones
As the hon. Member said, her new clause 5 seeks to extend civil legal aid to seriously injured survivors who are participating in inquests or inquiries where the conduct of public bodies or public officials is in question.
The Bill’s expansion of legal aid ensures that it is available to bereaved families in an inquest where a public authority is an interested person. It follows that a seriously injured survivor who is also a family member of the deceased will already be able to apply for legal aid under the Bill. Survivors of serious incidents are more likely to have active participation in an inquiry into what has happened more generally than in an inquest, where the coroner is seeking to determine facts around a death. However, injured survivors can apply for legal help and advocacy at inquests via the exceptional case funding scheme. Applicants may be eligible for that where not providing legal services would breach, or risk breaching, the applicant’s rights under the European convention on human rights. Alternatively, survivors may work with family members of the deceased receiving legal aid to contribute to the instruction of legally aided lawyers.
Section 40 of the Inquiries Act 2005 already gives the chair a specific power to award publicly funded legal representation to individuals or organisations involved in an inquiry, subject to the conditions set out by the sponsoring Minister. In recent inquiries, such as the Post Office Horizon IT inquiry and the Grenfell inquiry, chairs have used that power to ensure that all core participants are funded where that is fair, necessary and proportionate. It is therefore not necessary to expand the scope of civil legal aid to inquiries.
I also note that new clause 5 raises a significant practical and definitional challenge: it does not set out what constitutes “reasonable grounds for believing” that the matter relates to a public authority’s conduct, which would be necessary in order to make regulations implementing the measure and for operationalisation. It could also draw the scope of legal aid more widely than intended, such as by including the perpetrators of terrorist attacks.
In summary, the new clause is unnecessary in the light of existing routes to access legal help and advocacy. It would duplicate provisions already available for inquiries under the Inquiries Act by introducing legal aid for core participants for the first time, and, in doing so, would introduce complexities about who would fund those legal costs. That could lead to delays and make the scheme harder to operationalise and manage. I therefore ask the hon. Member for Wells and Mendip Hills not to move the new clause.
Tessa Munt
I seek a little clarity. The Minister made reference to somebody who is seriously injured. They might be part of the proceedings as a friend of the family of somebody who has died. We have seen fairly recently people being injured in a terrorist attack in which colleagues around them have died. They might have something very specific to add, but they might not be a friend of the family. I want to be really clear whether, if somebody was present and seriously injured, and had something to add, but was a colleague and not a family member, there would be any barrier to them being considered as helpful to the family in an inquest or investigation.
Alex Davies-Jones
I recognise that, and I will happily engage with the hon. Lady further to ensure that we have no gaps.
Tessa Munt
I am very grateful to the Minister for that assurance.
Question put and agreed to.
Clause 18 accordingly ordered to stand part of the Bill.
Schedule 6
Conduct of public authorities at inquiries and inquests
Amendments made: 14, in schedule 6, page 54, line 2, leave out from “paragraph” to “and” in line 3 and insert
“(d) insert—
‘(e) the matters reported under paragraph 7A of that Schedule’”.
This amendment is consequential on amendments 16 and 17.
Amendment 15, in schedule 6, page 55, line 24, leave out “2A and 7” and insert “7 and 7A”.
This amendment is consequential on amendments 16 and 17.
Amendment 16, in schedule 6, page 56, line 1, leave out “2” and insert “7”.
This amendment, together with amendment 17, relocates the position in which a new paragraph of Schedule 5 to the Coroners and Justice Act 2009 is inserted.
Amendment 17, in schedule 6, page 56, line 3, leave out “2A” and insert “7A”.—(Alex Davies-Jones.)
See the explanatory statement for amendment 16.
Schedule 6, as amended, agreed to.
New Clause 1
Post-legislative assessment of the legal duty of candour for public authorities and public officials
“(1) The Secretary of State must, within 12 months of the passing of this Act, publish a report into—
(a) the impact of the Act’s provisions on increasing public confidence that public authorities’ internal processes are fit for purpose in identifying and investigating failures when they first arise following a major incident.
(b) the role of the standing public advocate in assessing public authorities’ responses to affected individuals and relatives of bereaved victims following a major incident or where there is a major public concern that public authorities may not be acting in the best interests of those affected by a major incident.
(2) The report must assess—
(a) extending the public advocate’s powers to facilitate the gathering of information from those people affected by a major incident to support official inquiries and investigations to help ensure that all public authorities and officials are acting in accordance with the duty of candour set out in this Act.
(b) the case for facilitating a mechanism whereby the public advocate can instigate an independent panel to collate evidence and information following a major incident to support the oversight of public authorities and officials’ responses to major incidents.
(c) the costs of establishing independent panels as compared to non-statutory inquiries, or statutory inquiries under the Inquiries Act 2005 in line with paragraph (b).
(3) The Secretary of State must lay a copy of the Report before Parliament.”—(Ian Byrne.)
Brought up, and read the First time.
Ian Byrne
I beg to move, That the clause be read a Second time.
My right hon. Friend the Member for Liverpool Garston cannot be here to move the motion because of her father’s illness. She really wanted to be here, and I fully support the new clause, so I am going to speak on her behalf.
New clause 1 proposes a post-legislative assessment, within 12 months of the passing of the Act, of how its provisions on the duty of candour and equality of arms are increasing public confidence in public authorities. Specifically, it would examine whether the internal processes of public authorities are fit for purpose in identifying and investigating failures as they first arise after major incidents. The assessment would also consider the role of the independent public advocate in evaluating how public authorities respond to affected individuals and bereaved families following such incidents.
The report would have to explore whether the powers of the independent public advocate should be extended to facilitate the gathering of information to support inquiries and investigations, to ensure that public authorities and officials act in accordance with the duty of candour. It would also have to examine the case for empowering the independent public advocate to instigate an independent panel, similar to the Hillsborough independent panel, and assess the costs compared with non-statutory and statutory inquiries.
The new clause would ensure that, soon after the Act comes into force, Parliament would receive a clear, evidence-based assessment of whether it is delivering on its aims, and whether the role of the independent public advocate should be strengthened to secure faster truth, greater transparency, and better support for bereaved families after major incidents.
When Hillsborough Law Now launched in 2022, it not only supported the measures in the Bill but called for the establishment of an independent public advocate with powers to set up independent panels like the Hillsborough independent panel. For more than two decades, the legal system failed to deliver truth or justice to the Hillsborough families. In some cases, it even facilitated the propagation of a false narrative, including by officers named in the IOPC report published this week.
It was the Hillsborough independent panel, which was established in 2009 and reported in 2012, that finally set the record straight. I wholeheartedly support that statement. Its process was non-legal, document-based and grounded in transparency rather than adversarial proceedings. In two years it achieved what the legal system had failed to do in 24. One of the key lessons of Hillsborough is that the legal system can fail. The two witnesses, Jenni Hicks and Hilda Hammond, spoke powerfully on behalf of this new clause, and the need to look at how panels in the style of the Hillsborough independent panel can help to achieve justice. I want to put on record that I thought they spoke really eloquently. We cannot claim to have learned the lessons fully unless we provide bereaved families with access to a similar process at an earlier stage.
The Public Advocate Bills introduced by my right hon. Friend the Member for Liverpool Garston in the Commons in 2016 and by Lord Wills in the Lords in 2014, set out to create an independent public advocate with meaningful powers, including the authority to instigate independent panels akin to the Hillsborough independent panel. The intention was to give bereaved families a route to truth and transparency at an early stage, and to ensure that public authorities could be held to account quickly and that failures in process could be addressed before they became entrenched.
However, the office of the independent public advocate, as currently established under the Victims and Prisoners Act 2024, does not yet carry the powers originally envisaged, as the independent public advocate outlined in last Thursday’s evidence session. I think she is open to having more powers to achieve what my right hon. Friend the Member for Liverpool Garston is looking to set out with the new clause. As it stands, the office of the IPA lacks the statutory authority to gather evidence from those affected, and it cannot initiate independent panels to collate information and assess public authorities’ actions.
I cannot say it strongly enough: the Hillsborough independent panel uncovered what happened at Hillsborough because it had access to the police documents and the reports, so it could see the scale of how some police officers had changed the evidence of those who were at Hillsborough. I include in that my own father, whose report of his experience at Hillsborough was changed beyond all recognition. When he eventually saw what the police had put down for him, it caused him great distress, along with many others. What my right hon. Friend has outlined in the new clause is so important, and without the powers in it the advocate cannot replicate the approach that finally succeeded in the case of Hillsborough, when transparency, document disclosure and independent oversight finally brought truth, in a fraction of the time that the legal system had taken.
The gap in the powers has real consequences today for families who experience disasters or major public incidents. If we are serious about learning the lessons from Hillsborough and other tragedies, which I believe we are, we need to ensure that the independent public advocate has the appropriate authority and resources to act effectively, and that Parliament can scrutinise whether the office is delivering on its intended purpose. New clause 1 would provide for that, and I support it fully. I urge the Minister to consider what my right hon. Friend the Member for Liverpool Garston laid out in the new clause, and to discuss how we move forward on it.
Dr Mullan
I rise to speak in support of some of the sentiment and principle of the new clause, particularly subsection (1)(a) on understanding the impact of the provisions. As discussed, some of this is very novel and we will not always be sure how it pans out. I am not necessarily convinced that “within 12 months” is the right timescale. Thankfully, these things do not happen that often, in the scheme of things, and I am not sure that 12 months is quite enough time to see whether the new system has bedded in, and for there to be examples that we can review. I do not support the timetable, then, but it is important that the Government have a clear strategy for assessing and understanding how everything works in practice.
Tessa Munt
I have to disagree a little with the hon. Gentleman. A year is probably a good time in which one can make an initial assessment. We can then recognise what is happening on an annual basis.
With reference to our earlier discussion, might the Minister consider the annual report be the appropriate vehicle to look at what is spent on legal fees, and how that might reduce or increase? It will probably not increase. I believe the IOPC spent £80 million in the span of time for which it considered Hillsborough. If we get the new system right, sums like that £80 million will be reduced to very little, because the IOPC will be able to do its job swiftly and accurately, and to inform the Minister exactly what it has saved out of that £80 million pot, which was ridiculous.
Seamus Logan
I rise to support the new clause, the right hon. Member for Liverpool Garston and the hon. Member for Liverpool West Derby. I believe this to be an important proposal. If the new clause is adopted, would it actually result in a saving to the public purse?
Alex Davies-Jones
I thank all Members who have spoken in the debate on the new clause, which seeks to provide for a post-legislative review of the duty of candour and to include an assessment of the role of the Independent Public Advocate.
As the Committee knows, Cindy Butts has now started as the first ever standing advocate of the independent public advocate. Hers is an excellent appointment. Sadly, she has already been deployed to support the victims of the horrific attack on Heaton Park synagogue. The IPA will bolster the support offer and amplify victims’ voices back to Government. The Deputy Prime Minister and I have been in direct contact with Cindy to discuss her early experiences in post, and we will continue to engage with her on the delivery of her role and to better understand the experiences of victims.
Under the Victims and Prisoners Act 2024, the IPA has the power to produce reports, and has broad discretion on what matters relating to a major incident to include. Such reports may, for example, highlight concerns about a public authority not co-operating or not behaving with candour, or about the cost of what is entailed.
Additionally, the Act requires a statutory review of the independent public advocate’s role and its effectiveness, 18 months after its first deployment. That review period commenced on 3 October, following the attack at Heaton Park synagogue. The resulting report will be laid before Parliament, as required in legislation. It is right to allow the new role sufficient time to bed in. We will keep listening to victims’ experiences and will conduct the review before we consider any further changes. However, I am not taking those off the table—I reaffirm that commitment to the Committee.
The Prime Minister recently commissioned a new ethics and integrity commission to report on how public bodies can develop, distribute and enforce codes of ethics so that they effect meaningful cultural change and ensure that public officials act with honesty, integrity and candour at all times. On the publication of its report, and when the Hillsborough law has received Royal Assent, the commission will act as a centre of excellence on public sector codes of conduct, providing guidance and best practice to help all public bodies to put ethics and integrity at the heart of public service delivery.
Tessa Munt
I would be grateful if the Minister could include me in those discussions, because I am very keen that we get this right.
The Chair
Before we proceed, we have reached a witching hour. I am prepared, as are the officials, to see this through, provided that we do not engage in long debate. Let me be absolutely clear: these are important and serious issues and there is no question of the debate being curtailed. There is plenty of time. But if it is possible to expedite things in a manner that means Members do not have to come back later this afternoon, as Chair I am prepared to do that. We will see how we get on.
Tessa Munt
On a point of order, Sir Roger. I have not a clue where I am—have I missed amendment 41?
The Chair
No, you are all right.
Clause 19
Crown application
Question proposed, That the clause stand part of the Bill.
Alex Davies-Jones
In the spirit of brevity, let me just say that the clauses contain standard provisions around Crown application. They confer powers to make consequential amendments as set out in the Bill’s regulation-making powers, they provide definitions throughout the Bill and they set out its territorial extent. I commend the clauses to the Committee.
Question put and agreed to.
Clause 19 accordingly ordered to stand part of the Bill.
Clauses 20 to 24 ordered to stand part of the Bill.
Clause 25
Commencement
Tessa Munt
I beg to move amendment 41, in clause 25, page 22, line 23, leave out subsections (1) to (8) and insert—
“This Act shall come into force on Royal Assent, save for sections 9, 10 and 18, which will come into force six months thereafter.”
This amendment clarifies that the Act should come into force straightaway except for those sections which require the provision of codes or guidance.
Tessa Munt
The amendment seeks to clarify that the Act should come into force straight away, except for clauses 9, 10 and 18, which require the provision of codes or guidance. I seek purely to ensure that the Hillsborough law comes into force as soon as possible, as families have been waiting so many years for justice.
Alex Davies-Jones
I thank the hon. Lady and all Committee members for ensuring that our feet are held to the fire on our plans for implementation. We agree that the families have been waiting far too long and deserve implementation as swiftly as possible.
Amendment 41 seeks to amend the commencement provision in clause 25. It would provide that the Bill, with the exceptions of clauses 9, 10 and 18, would come into force immediately on Royal Assent. Clauses 9, 10 and 18 would then automatically come into force six months following Royal Assent. As I said, we agree that the families have waited long enough. The public deserve change and renewed confidence in the services that exist to protect and serve them.
Let me be clear: we will bring the measures into force as soon as is reasonably practical. However, we cannot prescribe commencement on the fact of the Bill. That is not the right approach and would create practical difficulties. Ultimately, implementing the legislation without the necessary frameworks and arrangements in place could result in unintended consequences and difficulties that cause further distress and disappointment. By retaining the power to commence regulations, steps can be taken to ensure a smooth transition, so that the provisions achieve their objective without negatively impacting ongoing proceedings.
I reassure the hon. Lady and all Committee members that we are not dragging our feet. We want to implement the Bill as swiftly as possible, and we will do so. We are working at pace to facilitate market readiness to expand legal aid rapidly. We are also working with coroner services to help them to prepare for the effects of an increase in the number of lawyers who will appear at inquests.
In addition, the major increase in demand will mean that we also need to look at making significant changes to the Legal Aid Agency’s operational and digital systems. I remind Members that this comes at a time when the agency is recovering from a major cyber incident, with all digital systems yet to be fully restored. Without sufficient time for the legal aid market and the Legal Aid Agency to prepare, there is a risk that bereaved families will be unable to find legal aid lawyers or to access legal aid funding at inquests, which could be delayed as a consequence. We do not want that. Our priority is to deliver the reforms as soon as possible while ensuring that the system is equipped to provide specialist advice to bereaved families from day one.
None the less, we recognise that the Hillsborough families, along with the wider public, deserve clarity on when the Bill will come into force, which is why, very soon, we will set out a clear plan, including the timelines for implementation and for the commencement of the Bill as a whole. I therefore urge the hon. Member for Wells and Mendip Hills to withdraw the amendment.
Clause 25 sets out when the Act will come into force. Part 5 of the Bill, which includes the technical provisions, including on regulation-making powers and territorial extent, will take effect immediately. The other parts of the Bill will come into force on a date specified by the relevant authority in regulations. I reaffirm that we will not delay bringing the Bill into force, and I look forward to updating the House very soon on the planned timeline for its implementation. Clause 26 simply provides the short title of the legislation. I commend the clauses to the Committee.
Tessa Munt
I accept the Minister’s assurance that she is going to get her skates on, so I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clauses 25 and 26 ordered to stand part of the Bill.
Alex Davies-Jones
On a point of order, Sir Roger. I would appreciate the Committee indulging me briefly, because it is customary at this point to say a few brief words to mark the end of Committee deliberations. I thank the Opposition Front-Bench team, and I pay tribute to all the Members who have served on this really important and powerful Bill Committee. The Bill is better for having been scrutinised by them all, so I thank them.
I thank you, Sir Roger, for keeping us in very good order, especially at times when we all lost where we were. I also thank the Government Whip, my hon. Friend the Member for Ossett and Denby Dale, on her birthday. [Hon. Members: “Hear, hear!”] I thank the Clerks. I want to say a huge thank you to the brilliant team at the Ministry of Justice and the Cabinet Office. That includes, but is not limited to, our officials Nikki Jones, Emily Dunn, Tom Blackburn, Sam Wright, May Wong, Sam Dayan, Georgina Rood, Terry Davies, Jonny Fitzpatrick, Catriona MacDonald, Naomi Sephton, John Smith, James Parker, Rachel Boylin and Rachel Bennion —both my Rachels. I thank the Hansard Reporters and the Doorkeepers, and I look forward to the debate on Report, which I am sure we will come to very soon.
The Chair
That was, of course, all strictly out of order and not a matter for the Chair. [Laughter.] While we are out of order, I add my thanks, on the Committee’s behalf, to the Officers of the House, without whom we could not do this job at all.
Exceptionally, I would like to say something else. This has been a highly sensitive and at times difficult piece of legislation to put through. It affects people whose lives are still affected many years after events. I hugely appreciate, and I know that Mr Dowd appreciates, the manner in which you have conducted yourselves. It has been exemplary. Thank you very much indeed.
Bill, as amended, to be reported.