Public Office (Accountability) Bill: Exclusion
(1 day, 12 hours ago)
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Baroness Jones of Moulsecoomb
To ask His Majesty’s Government why Members of Parliament and members of the House of Lords are excluded from Clause 11, “Offence of misleading the public”, of the Public Office (Accountability) Bill; and what consideration they have given to removing this exclusion.
Baroness Jones of Moulsecoomb (GP)
My Lords, what a small, select and charming group we are to discuss a topic that could feature quite high in news media later, because I think it is an issue that the public will care about.
The Public Office (Accountability) Bill has rightly been recognised for its proposed duty of candour, but there is another provision within it, less understood, yet vastly more consequential: the creation, for the first time in modern democratic history, of a criminal offence of misleading the public. It provides that, where a public official, including our very own Prime Minister, knowingly or recklessly deceives the public on a matter of significant public concern, and if that deception is proven to the criminal standard, a prison sentence of up to two years may follow. In short, the Prime Minister is proposing to criminalise lying in politics for the first time and he is leading by example by applying it to himself. This has never happened before and I congratulate the Government on being brave and decent enough to criminalise lying by their own Ministers. It is a very big step.
This Bill has been commonly called the Hillsborough law because of the stadium crush in 1989 in Hillsborough, Sheffield, in which 97 Liverpool supporters were unlawfully killed. That was followed by years in which police and other officials advanced misleading accounts that falsely blamed the victims, deceived families over the pain that their loved ones suffered before death and obscured institutional failings. The sustained campaign by the bereaved families for truth and accountability led to the Hillsborough Law Now movement and to the introduction in Parliament of this Bill. It is intended to impose a statutory duty of candour and to criminalise serious deception by public officials. It is worth noting that the inaccurate account by Sheffield police has never been corrected, which is something that the Government should resolve. Among others, the Hicks family lost two daughters and they, and other still-grieving families, deserve the truth.
This Bill will correct an inconsistency. For centuries, we have criminalised deception in almost every professional sphere, except for some politicians. Fraud is an offence, perjury is an offence and false advertising is unlawful. Under consumer protection legislation, tradesmen may not mislead the public about serious matters. In finance, commerce, the courts and taxation, truthfulness is not optional; it is legally enforceable. We already accept, under the Representation of the People Act, that dishonest statements about a rival candidate during an election may be criminal. The principle that deliberate political falsehoods can be legislated against is therefore not novel. It has existed for decades without overwhelming the courts or extinguishing debate.
No equivalent statutory standard has governed broader public claims made by politicians. That anomaly can be set against the collapse of public trust. The Ipsos Veracity Index once again ranks politicians among the least trusted professions in the UK. That distrust weakens democratic consent, discourages civic participation and feeds a corrosive cynicism that democratic institutions cannot be trusted and that Parliament is full of liars. It makes the lives of Members of the Commons and the Lords much harder and doubtless impacts our well-being as well.
But the Bill offers some hope. The proposed new offence of misleading the public attempts to respond to that crisis, not by criminalising opinion, silencing debate or punishing error or failed prediction but by addressing something narrower and more serious: deliberate or reckless deception about matters of significant concern to the public, proven beyond reasonable doubt.
Some have raised concerns about free expression. Those concerns deserve respect, but the offence, as drafted, is confined to intentional or reckless deception. It does not criminalise political disagreement, capture advocacy or police rhetoric. It does not apply to anything said in Parliament, as privilege is still in place. It targets only proven deceit elsewhere, such as online, on television, on the radio or at events. I hope that this narrow definition will stop people with expensive lawyers launching malicious legal cases in the hope of silencing legitimate criticisms. In short, this provision affirms a simple democratic proposition: those who exercise public authority should not be permitted to lie to the public with impunity.
So far, so good. Yet the following exemptions have been brought to my attention by campaigner Marcus Ball of ExecProsec, who is working with Jennifer Nadel of Compassion in Politics and Luke Myer MP from the other place. As currently drafted, the proposition excludes some parliamentarians. Civil servants would be bound by it, as would police officers, members of the Armed Forces, NHS staff, Government Ministers and even the Prime Minister, but Back-Bench Members of Parliament and Members of your Lordships’ House would not, nor would the shadow Cabinet or the Opposition in their entirety.
There may be procedural explanations for excluding Peers and Back-Bench MPs, and even technical constitutional arguments, but I wonder what the public will think. They will see a law that criminalises deception by nearly every category of public official except the very people who are making the Bill become law. They will not be persuaded by constitutional nuance; they will draw a much simpler conclusion. If Parliament legislates a requirement not to lie for others while reserving exemption for itself, the perception will be that we parliamentarians are hypocrites. That perception will endure each time the offence is invoked, a prosecution is considered, accountability is pursued or any parliamentarian is accused of being dishonest. The public will be reminded that parliamentarians chose to criminalise lying by almost all public officials apart from themselves.
Equality before the law is the foundation of democratic legitimacy. If nurses, teachers, civil servants, Ministers and even the Prime Minister are to be subject to this standard, it is impossible to persuasively justify a position in which Members of either House of Parliament are not. Surely, those who make the law should be subject to the same standard of honesty that we, as legislators, impose on others.
This House has long seen itself as the guardian of constitutional principle. We are uniquely placed to consider not only how legislation functions in the courts but how it will be understood by the public. I am concerned that if we do not apply this law to ourselves, we will cause reputational self-harm. We are legislators; we pass laws that relate to everyone else, so why should they not relate to us as well?
To conclude, I have a couple of questions for the Minister. I sense that the Government will probably not accept what I am saying, but I wonder whether she will meet me at a future date to discuss this, perhaps with one or two lawyers who can argue more persuasively than I can. Why are Members of Parliament, in both Houses, excluded from Clause 11? Will the Government give serious consideration to removing that exclusion, so that the Bill may stand as a testament to integrity rather than a monument to hypocrisy?
Lord Knight of Weymouth (Lab)
My Lords, I thank the noble Baroness, Lady Jones, and congratulate her on bringing forward this important debate. It is a good Question. I agree with her that the Public Office (Accountability) Bill should be welcomed, but I will wait until Second Reading in this place before addressing the wider merits of the Bill.
Few matters strike more directly at the moral core of public life than the question of honesty, and few touch this House more directly than the standards we set for ourselves. Clause 11 of the Public Office (Accountability) Bill creates a new criminal offence, as we have heard, where a public authority or official acting in that capacity intentionally or recklessly misleads the public, knowing or being reasonably expected to know that such conduct is seriously improper.
The intention, as I understand it, is to ensure that those exercising the powers of the state are held to the highest standards of truthfulness. It would apply to government departments, local authorities, the police, the NHS, schools and others exercising public functions. Yet, as we have heard, Members of both Houses of Parliament are to be excluded. The Government’s reasoning is that the clause is aimed at those who wield executive authority rather than those in representative or political roles. But is that distinction defensible? Does this fly in the court of public opinion? Why should accountability in public life be limited only to those who administer the state rather than those who make its laws or shape its policies?
To be a Member of either House is to possess a particular form of public authority: the authority of trust. As recent events relating to Lord Mandelson have shown, parliamentarians are not above the system: we are the system in the eyes of the public. Our words, our votes and our conduct influence government action, policy direction and public belief. That is power by any reasonable definition, and it is power that depends entirely on trust.
As the clause stands, it applies to a government Minister acting in an executive capacity. In that case, Ministers face a legal duty not to seriously mislead the public, but their opposition shadow does not. That asymmetry is frankly bonkers and unfair on political incumbents. We are in an age of disinformation. Elected politicians who consistently, deliberately and cynically mislead the public should be subject to criminal sanctions in extremis.
Outside the protections rightly offered by parliamentary privilege, should we not be prepared to hold ourselves to account when serious or repeated dishonesty on matters of public concern causes demonstrable harm? The damage caused by misleading the public goes far beyond a single misstatement. It corrodes the foundations of confidence on which democratic governance rests. It also creates fertile ground for those who thrive on distrust and resentment: the bad-faith actors, who see cynicism as a political opportunity.
We have seen again and again how false narratives can take hold and persist: Hillsborough, the infected blood scandal, the Horizon cases and, more recently, the partygate affair. Each has shown how misinformation and evasion can compound tragedy, turning mistakes into long-term injustice. The Bill bears the “Hillsborough” name advisedly. It reminds us that misleading the public is not a victimless act.
The evidence of eroded trust in politicians in this context is stark. The 2024 British Social Attitudes survey found that 58% of people “almost never” trust politicians to tell the truth. Four in five said they were dissatisfied with how they were governed. The Electoral Commission’s 2025 findings were similar: only 14% expressed trust in politicians. According to the Constitution Unit, “being honest” ranks as the single most desirable quality in a parliamentarian, and nearly three-quarters of respondents support the removal of MPs who lie.
In that context, the amendment tabled in the Commons by my political friend Luke Myer MP deserves serious consideration. It would extend Clause 11 to Members of both Houses in a proportionate and carefully safeguarded way: not to stifle political disagreement, as the noble Baroness, Lady Jones, said, but to make it clear that those who knowingly and deliberately mislead the public cannot do so with impunity. That principle, I believe, commands widespread public support. To do otherwise confirms exactly the perception that has done such damage to trust in political institutions: that there is one rule for us and another for everybody else. That sentiment has helped drive the rising populist tide that every democracy now faces.
Mention of populism triggers me to say something about the valid concerns around freedom of expression. These are understandable, but in this case, I think, misplaced. The threshold in Clause 11 is intentionally high. It is directed only at conduct that is serious, significant and harmful. The clause includes a “reasonable excuse” defence and would require a demanding evidential standard. It is not about slips of the tongue, robust political rhetoric or contested interpretation; it is about substantiated, deliberate dishonesty causing real harm. In practice, prosecutions would likely be rare, but the deterrent effect of the law, and the statement of principles that it represents, is powerful.
Some may observe that the common-law offence of misconduct in public office, about which we have heard quite a lot lately, already covers such ground. In theory, yes, but, in practice, this offence is notoriously ill-defined and difficult to sustain. However, Clause 11, which has been carefully drafted, offers a clearer, modern test for the same fundamental idea: that the abuse of public trust is, at its most serious, a criminal matter.
In my view, this is about leading by example. We cannot credibly legislate for honesty in public life while exempting ourselves. If we do, we risk deepening the very scepticism that this Bill seeks to repair. The British public are remarkably forgiving of error; they are far less forgiving of hypocrisy. A Parliament that will not hold itself to its own standards invites precisely the accusations of entitlement and complacency that have weakened respect for institutions across the democratic world and would fuel the growing belief that we are an entitled, self-serving elite.
The restoration of trust will never come solely through codes of conduct or ministerial guidance. It will come through action: through showing that no one, however senior or unelected, is beyond accountability. Extending Clause 11 to Members of both Houses, with proper safeguards for privilege and freedom of expression, would mark a principled step in that direction. If honesty in public life is to be more than a slogan, we must be prepared to bind ourselves by it in law, and not just in aspiration.
Lord Young of Acton (Con)
My Lords, I declare my interest as the director of the Free Speech Union, which may well end up defending people as a result of the Public Office (Accountability) Bill, given that it creates a new speech offence. As we have heard, the offence is that of misleading the public. A public authority or public official commits an offence if, first, in their capacity as such an authority or official, they act with the intention of misleading the public or are reckless as to whether their act will do so; and, secondly, they know, or ought to know, that their act is seriously improper.
The problem is not that MPs and Peers are immune to being prosecuted for this offence but that the carve-out is not large enough. According to my reading of the Bill, MPs or Peers acting as public officials—that is, Ministers of the Crown—would be liable. This is a gold-embossed invitation to the Jolyon Maughams of this world. It will unleash a wave of politically motivated lawfare. Is that really what we want?
As the noble Lord, Lord Knight, just pointed out, the new offence of misleading the public is intended to replace the offence of misconduct in public office. Let us not forget that attempts have been made by political activists to bring private prosecutions against their opponents for committing that offence. For instance, in 2019, an outfit called the Brexit Justice Group brought a private prosecution against Boris Johnson for misconduct in public office because, according to the BJG, he had knowingly misled the electorate in the EU referendum campaign by claiming that leaving would bring a bounty of £350 million a week. It was an obviously vexatious case, but a magistrate issued three summonses against the then Prime Minister before the case was eventually thrown out in the High Court.
Should this Bill become law, we can look forward to a slew of similar cases. Rachel Reeves, for instance, might find herself in the dock for claiming that she would not raise taxes on working people, while Ed Miliband could have his collar felt for promising that household energy bills would fall by £300.
If the Bill is amended along the lines that the noble Baroness, Lady Jones, wants, would not her party’s candidate in the Gorton and Denton by-election find herself in difficulty—assuming that she becomes an MP? During her now infamous campaign video in Urdu, released a few days ago, she said that Reform UK wants to put higher taxes on people who were born abroad. That is misleading, to put it at its most charitable. The noble Baroness, Lady Jones, said there are safeguards in the Bill to prevent private prosecutions, but what is to stop members of the public bringing judicial reviews against the police for not prosecuting politicians for misleading the public?
The Free Speech Union recently defended an SNP activist and editor of a blog, “Wings Over Scotland”, who had supposedly said something transphobic on social media. A trans activist, Lynsay Watson, tried to sue Greater Manchester Police for not prosecuting him. I am happy to say that he failed, but that is not to say that others will not attempt to sue the police for not arresting lying politicians.
I do not want to see Hannah Spencer behind bars for misleading the public any more than I do the Chancellor of the Exchequer or the Secretary of State for Energy Security and Net Zero. Candidates campaign in poetry and govern in prose. If they fail to keep their promises or traffic in obvious mistruths, there is already an adequate mechanism for punishing them—the ballot box. Rather than extend the scope of the Bill to include MPs and Peers, let us limit it to make sure that Members of both Houses, in whatever capacity, are properly excluded.
I would go further and urge the Government to amend the Bill to exclude civil servants too—and not just those working in the intelligence services. As a recent piece in the Economist pointed out, making Whitehall officials liable for prosecution for misleading the public could have disastrous unintended consequences. It would mean fewer civil servants willing to take responsibility for decisions or giving ministerial advice, and more decision-making by committee to dilute liability. Rather than providing Ministers with timely, sensible advice, they will mitigate the risk of a prosecution down the line by obfuscation and delay. To quote from the Economist:
“Ministers complain that the civil service is bogged in a ‘sludge’ of slow decision-making. But officials will have an incentive to take more detailed minutes, keep more records and give risk-assessments even lengthier consideration to insure against future court challenges”.
I am reminded of the effect of the Freedom of Information Act 2000. Rather than leading to greater transparency on official decision-making, it resulted in MPs, Peers and Whitehall officials abandoning email in favour of WhatsApp, with disappearing messages switched on—less transparency rather than more.
The intentions behind the Bill are undoubtedly good. The families of those who died in the Hillsborough tragedy deserve to hear the truth from public officials, particularly those testifying to various inquiries, but it is hard to legislate for candour. To pretend that the Bill will
“once and for all end the culture of cover-ups and hiding the truth”,
as the Labour manifesto promised, is, I am afraid, just another example of misleading the public.
Baroness Jones of Moulsecoomb (GP)
I thank the noble Lord for raising the profile of our candidate in the Gorton and Denton by-election. That is very kind of him.
Lord Thomas of Cwmgiedd (CB)
I too welcome the obtaining of this debate by the noble Baroness, Lady Jones, and want to return, as we often should, to the actual Question in the debate. We shall have plenty of time to look at the Bill when it gets here. We are not on the Bill but on this very narrow point. Narrow though it is, it is important. Although what the Government have proposed—excluding MPs and Peers—is probably right, because it is the Government and the Executive who are dealt with in the scope of the Bill, it is worth while considering the implications of this. We can take two things by way of some help in examining the question, because the acuteness of this issue will arise primarily when we get close to an election or when political tensions are high.
It is quite interesting to see what we did in the Representation of the People Act, or to go back to what was originally enacted in 1895, in distinguishing between untruths in relation to people’s personal characteristics and untruths in relation to all other matters. Looking at the debates in 1895, it seems remarkable to me that that distinction, which was carefully made, has stood us in good stead, because we addressed a particular problem in elections.
When you look at the debates, you can see what was worrying politicians in 1895. One was worried about the fact that, during an election, he had been on a Bench of magistrates and was said to have sent a man to prison for a month, with hard labour, for stealing three pennorth of oats; he had dissented from the decision of the others. Another was accused of his yacht being used to poach salmon with a net on a Sunday in Scotland. It was a concern that untruths were being told about people’s personal characteristics, for which there was no effective remedy because you could not bring an action for slander during an election. Therefore, in 1895 it was decided that one ought to focus on what the problem was, what the remedy was and whether it should be enacted. It was enacted then and has been re-enacted successively, as recently as the 1983 legislation.
Why has it been restricted in this way? Looking at the case law that has elucidated these provisions, it seems that Parliament then thought—it is, to my mind, a very tenable position—that whereas it is wrong to be allowed to tell lies about someone’s personal characteristics, because it is very difficult to disprove those, do you leave the good sense of lying about politics to the public? That has served us well for over 130 years, but the question is: should we continue that distinction?
It is useful to look at a second matter, which is the proceedings in Senedd Cymru where, in relation to elections in Wales, it is proposed that there be an offence, similar to what is envisaged in the Bill, applicable during elections: namely, telling untruths of any fact or matter completely. The report of the examination by the Senedd committee is useful reading because it had evidence from the Electoral Commission, the Bar in Wales, Transparency International, Professor Horder and others, in relation to the problems that you create by having a wide-ranging offence of this kind.
The way forward, it seems to me, is to look at what the problem is in this House and in the other place. Is there a remedy that should be brought, and in what circumstances? The one thing that would be very undesirable is to create a huge amount of potential for people to complain to the police, saying “X or Y is lying about this” and seeking to engage in political prosecutions of that kind. That is a real worry.
However, I go this far in supporting the noble Baroness, Lady Jones: we simply ought to look at the difficulties and see what the problem is—but it is a difficult problem on which there is an awful lot of experience, and we need a proper examination. On what I have read so far, I regret to say that I agree with leaving their Lordships—I should say “your Lordships”, including myself—and others out of the scope of this Bill, because there is a logic to confining the provision to the Executive and not opening the door to lengthy and politically inspired prosecutions. However, it is a question that should be examined, and that is why I am so grateful to the noble Baroness, Lady Jones, for raising this very difficult point.
Lord Marks of Henley-on-Thames (LD)
My Lords, I join with everybody in congratulating the noble Baroness, Lady Jones, and thanking her for raising this issue and for the powerful and eloquent way in which she opened the debate and presented her arguments.
As we have heard, the question that the debate raises is whether it is right that Schedule 2 to the Bill would exclude parliamentarians from both Houses from the definition of public authorities and public officials who might be guilty of an offence of misleading the public under Clause 11. I agree with the noble and learned Lord, Lord Thomas, who described this as a very difficult issue that was not going to be simple to determine and that required a great deal of consideration.
On the one hand, as the noble Baroness, Lady Jones, pointed out, the exclusion of parliamentarians from the ambit of this offence could well be perceived by the public as putting parliamentarians above the law. Some Labour MPs have expressed that view in the House of Commons and the media, and the noble Baroness, Lady Jones, gained powerful support from the speech of the noble Lord, Lord Knight of Weymouth. The noble Lord also made the point, which is of considerable significance, that Ministers acting in their executive capacity would be liable to be prosecuted under this offence, whereas shadow Ministers would be in an entirely different position. On the other hand, if the exclusion were removed, it could be said that Peers and MPs might be deterred from speaking freely on important issues, and that is the basis on which parliamentary privilege is founded.
The reason given in the Explanatory Notes to the Bill for the exclusion of parliamentarians is, and I quote,
“in recognition of long-standing conventions around the independence of the judiciary”—
who I might say are also excluded from offences under Clause 11—
“and Parliament’s ability to regulate its own affairs. These institutions have their own processes for establishing and enforcing ethical standards”.
No more detailed explanation was given on behalf of the Government in Committee by the Minister at the MoJ, Alex Davies-Jones MP; she referred only to long-standing conventions of self-regulation and independence. For my part, I am not sure that is a convincing response. In my view, the mere existence of long-standing conventions should not prevent Parliament examining those conventions and, if necessary, legislating to overturn them.
I have a great deal of sympathy with the position taken by the noble Baroness, Lady Jones. She rightly points out that the Clause 11 offence is directed not at innocent mistake or honest disagreement but at deliberately or recklessly misleading the public, when the accused knows, or ought to know, that their act is seriously improper. That is a pretty heinous wrong, and one that the Bill is rightly determined to prevent and penalise. The threshold for conviction is a high one. So why, she asks, should parliamentary privilege and MPs’ and Peers’ freedom of speech get in the way of that worthwhile aim, against the background that we have seen of unacceptable institutional cover-ups and outright dishonesty by some official bodies, which this Bill is intended to address?
My concern with the position of the noble Baroness, Lady Jones, is not, principally, that without the exclusion parliamentarians would in practice be prosecuted for this offence. Rather, it is that without the exclusion parliamentarians could be threatened, publicly and in correspondence, with prosecution, and that the threat of attempted prosecutions could deter MPs and Peers from speaking their mind openly and without fear of the consequences. It is in that context that the protection of parliamentary privilege is genuinely an important democratic protection.
It is true that under paragraph 2(2) of Schedule 3, proceedings for a Clause 11 offence could be brought only with the consent of the DPP. Nevertheless, the whole process of investigation and consideration, and the threat of prosecution, could have a chilling effect on parliamentarians and parliamentary debate. It is therefore not only freedom from prosecution that is important but freedom from the threat of prosecution.
I am reminded of the argument around SLAPPs litigation—SLAPPs standing for the obscure description of strategic lawsuits against public prosecution. As we all know, SLAPPs are unmeritorious actions threatened or brought, often for alleged defamation, generally by powerful or wealthy individuals or organisations, to frighten off critics who would attack them in the press or elsewhere. SLAPPs are used as a form of oppressive censorship of investigative journalism and legitimate criticism, which we are rightly attempting to regulate, control or penalise.
In the context of this Bill, a parallel argument was advanced at Second Reading in the House of Commons by the Conservative MP Mike Wood. He foresaw a risk of parliamentarians being subjected to what he called “politically motivated lawfare”—I note that was an expression repeated by the noble Lord, Lord Young of Acton—which the exclusions are designed to prevent. I have to say I found some of the examples from the noble Lord, Lord Young, a little overstated at times, but nevertheless it is a point that is worth making. I found the argument of the noble and learned Lord, Lord Thomas of Cwmgiedd, very persuasive, including his distinction, which may not be directly on point but is helpful, between lying about politics and lying about personal characteristics. That distinction is illuminating.
We should not be so complacent as to believe that parliamentarians would be so immune to threats as always to stick to our guns in the face of them. Parliamentarians expect and welcome criticism, argument and disagreement. However, I suggest that the threat of prosecution for speaking their mind is not a legitimate hazard of parliamentary life. At worst, it may drive some to trim or curtail their arguments, even if not abandoning them. On the whole, and with some hesitation, I have come down on the side of parliamentary privilege and in favour of the exclusion that is written into the Bill, despite the very powerful arguments set out by the noble Baroness, Lady Jones, the noble Lord, Lord Knight of Weymouth, and others.
Lord Sandhurst (Con)
My Lords, I am grateful to the noble Baroness, Lady Jones, for providing the opportunity for noble Lords to raise a matter of deep and real public interest. The exclusion of Members of this House and the House of Commons from Clause 11 of the Public Office (Accountability) Bill is a topic which touches on constitutional issues and those which relate to public trust. The Bill engages long-standing concerns about transparency in public life. It will impose a duty on public authorities and public officials to act with candour, transparency and frankness, and to maintain ethical conduct within all parts of their authority. It creates offences for those who, in that capacity—and I emphasise the phrase “in that capacity”—mislead the public and, in relation to the misconduct of persons, who hold public office.
The Hillsborough families’ campaign for accountability has been one of the most powerful calls for reform in recent decades; it is right that we act on their concerns. Here, I declare an interest: I acted in some civil claims on behalf of South Yorkshire Police and, at a later date, for victims who sued their solicitors who had settled their original claims for too little. I have also represented a health authority in a public inquiry against a dishonest consultant, so I know and have practical experience of what dishonesty and cover-ups can mean for the victims.
The new offences will apply when a public authority or official acting with intention or reckless disregard commits improper acts that mislead in respect of matters of significant public concern. But MPs and Peers do not, by virtue of that status alone, act as officials—we must remember that. By Schedule 2 to the Bill, “public authority” means a government department, a Minister of the Crown, the Scottish Ministers, the Welsh Ministers, or a Northern Ireland devolved authority. So individual officeholders and their departments, when acting, are within scope. It is only when acting personally, in a purely parliamentary capacity, that an MP or a Peer will be immune.
This debate raises the interesting and difficult question: when, if ever, should MPs and Peers be guilty of the criminal offences contained in the Bill? Neither House of Parliament will for that purpose be a public authority. This reflects long-standing constitutional conventions of Parliament’s self-regulation and independence. Parliamentary privilege and constitutional autonomy are vital; they must not be compromised. Article 9 of the Bill of Rights 1689 remains a cornerstone of our constitutional settlement. It provides that freedom of speech and debate in Parliament
“ought not to be impeached or questioned in any court or place out of Parliament”.
Article 9 safeguards the core functions of this House and the other place in debating and scrutinising the Government without fear of legal sanction. Those who abuse parliamentary privilege are susceptible to punishment and expulsion by Parliament.
The problems with the Hillsborough and infected blood scandals stem from cover-ups by those acting in official positions, whether as Ministers or officials. I am not suggesting anyone in particular here, but they were in positions of authority. The noble and learned Lord, Lord Thomas, explained some of the hazards that might arise from going beyond the Bill and the significance of the Representation of the People Act, for example. My noble friend Lord Young of Acton explained other risks. The noble Lord, Lord Marks, rightly highlighted the danger of the mere threat of proceedings to what people may then be prepared to say in either House of Parliament.
Article 9 rightly protects proceedings in Parliament. It does not protect conduct by individuals outside those parameters, those formal proceedings, nor does it provide immunity from the criminal law for conduct outside parliamentary debate—see the expenses scandal, where at least one MP attempted to run the argument but failed in the courts. The scope of parliamentary privilege is carefully constrained, and rightly so.
Parliament should be very cautious lest any words spoken on the Floors of either House, or in its committees, are put at risk of being caught by criminal offences or civil actions. The threat of prosecution would have a chilling effect on robust debate, which is the essence of parliamentary democracy. An authoritarian Government with majorities in both Houses, any mischief-maker in either House or any outsider might raise specious allegations for bad motives, or just out of ignorance. The fact that the Member in question might ultimately be acquitted of wrongdoing, whether in the criminal or civil courts, will not have prevented exposure to frightening pressures. Our legislators must not be so exposed. The Bill of Rights is a bulwark. History is on its side.
As we have heard, some Members in the other place have suggested that extending the offence to MPs and Peers might improve public trust and perception, and amendments have been tabled from some MPs to bring Members of Parliament within the scope of the offence. That would be a grave error. MPs and Peers acting as such do not make decisions on behalf of the state. They are not Ministers or officials. Their misconduct, if and when it occurs, will be addressed by Parliament—we have had examples in the recent past. Parliament does and will police its Members; no one else should when it acts within the bounds which I have set out.
We on these Benches believe that creating a criminal offence would be wrong, but we also recognise that the exclusion of Parliament from the offence risks sending the wrong message if it is not properly explained to the public. It is not an easy topic to explain in plain and simple terms to a wider public. Accountability and integrity in public life must be strengthened and supported, and public trust in our institutions is, frankly, fragile at present. But the way to hell is paved with good intentions, so beware: the remedy will be worse than the disease.
Given these considerations, I ask the Minister the following questions. What consideration have the Government given to alternative models to ensure meaningful accountability without infringing on this privilege? Do the Government believe that the current system of parliamentary sanctions alone is sufficient and effective? What further parliamentary sanctions might be of value? What steps will the Government take during the currency of the Bill to explain these important principles of our constitution?
The Parliamentary Under-Secretary of State, Ministry of Justice (Baroness Levitt) (Lab)
My Lords, it is customary to begin by thanking the noble Baroness, Lady Jones of Moulsecoomb, for securing this debate, but I am sure she would agree that I should start by paying tribute to the victims of the Hillsborough disaster and their families. In doing this, I make it clear that the victims and bereaved must always be front and centre of the Government’s mind as the Bill makes its long overdue way through Parliament.
I hope your Lordships will understand what I mean when I say that the Bill is not just about justice for Hillsborough victims and families, and those of the other disasters; it determines what kind of a society we are. Do we protect vested interests, or do we believe in the importance of rights of and protections for our fellow citizens as individuals? To that extent, I entirely understand the points made, very forcefully, by the noble Baroness, Lady Jones, and my noble friend Lord Knight.
The noble Baroness and I had a very short discussion yesterday when she explained her concerns to me. I am grateful to her for that. I hope she knows that my objective in this matter is not to make partisan points or to be stubborn about legislation but to make sure that, as we go through the process of introducing a new law, we get it right. By “right”, I mean that the law captures the behaviour that we think is so egregious that it merits being criminalised while not trespassing on other important issues, which will include convention rights. By securing today’s debate, the noble Baroness and all the other Members of your Lordships’ House who have spoken have given the Government food for thought, and I have treated everybody’s contributions as, in effect, being those of critical friends.
The offence of misleading the public is a brand new offence contained in the Public Office (Accountability) Bill. As the noble and learned Lord, Lord Thomas of Cwmgiedd, said, your Lordships will have the opportunity to scrutinise it fully when it is sent to us from the other place. My intention today is to explain the policy reasoning behind the Government’s decision to limit the offence to the Executive rather than extend it to all MPs and Peers. To do this, I need briefly to outline what the Bill in general, and this clause in particular, intend to do.
The Government are clear that what happened following the Hillsborough disaster must never happen again. In that case, police lied and changed witness statements to protect their reputations. Bereaved families from Hillsborough, and too many other examples over many years, faced an inquest process with no funding for legal representation. All of that was underpinned by a lack of a duty of candour. The Bill contains a powerful new package of measures to address these failings and others, such as the infected blood and Horizon scandals.
As part of the measure, the Bill creates not one but four new criminal offences, and they fall into two groups. There is plainly some level of misunderstanding about this. That was articulated most clearly by the noble Lord, Lord Young of Acton; I owe him an apology because, in a recent letter on the Crime and Policing Bill, I addressed him as “Lord Young of Action”, although perhaps he will not have minded too much.
The first group of these four offences includes two offences to replace the common-law offence of misconduct in public office, which will be repealed. The first of those new offences is committing seriously improper acts and the second is breaching the duty to prevent death or serious injury. These new offences broadly replicate the effect of the common-law offence, and they have a very wide reach. They cover a much broader range of behaviour than the kind that was seen at Hillsborough; for example, misconduct in public office has in the past been used to prosecute for offences such as corruption in public office—that is what these two new offences are intended to replicate.
We are replacing the old common-law offence because there was a lack of certainty about it. One of the issues with it was the lack of a list of those to whom the law applied. To deal with that, those two new offences do have a list. Both those two very broad offences do apply to MPs and Peers, as well as to a number of other public office holders, including judges.
Secondly, we have created another two new offences, which are completely separate from the old misconduct in public office offence. They were designed specifically to deal with a narrower range of circumstances and to deal with the situation that has arisen in these large-scale disasters. These two new offences are: first, a breach of the new duty of candour; and, secondly, the offence of misleading the public contained in Clause 11. It is only the latter offence, out of the four new ones, with which we are concerned today.
As I have already said, this offence is designed to be much narrower than the ones designed to replace misconduct in public office. It was designed specifically with what happened at Hillsborough in the front of our minds, and I will explain the reason for that. As the scale of the disaster at Hillsborough was becoming apparent, the police lied about its cause, saying that Liverpool fans had broken into the stadium. However, as we now know, and as the Taylor inquiry uncovered, in fact the main reason for the disaster was the failure of police control.
This new offence is aimed squarely at those who intentionally or recklessly aim to mislead the public and cover up the truth. It is intended to capture only the most serious instances of public officials or authorities misleading the public. An example might be a chief executive of a hospital instructing the staff to lie about a major incident to avoid criticism of the hospital. It is not intended to apply to instances of accidental or inadvertent misleading.
To reassure the noble Lord, Lord Young, prosecutions cannot be brought without the consent of the Director of Public Prosecutions, specifically to avoid vexatious private prosecutions. The noble Lord mentioned judicial review, but the doorway to a judicial review is a narrow one—it is a very restricted set of circumstances and is subject to a permission stage from the High Court.
The Government thought very carefully about to whom this offence should apply. It applies to public officials and public authorities, so it captures those working in government and the wider public sector who take decisions on behalf of the state. That includes Ministers and other politicians in executive roles, but not MPs and Peers.
Our thinking was this: Parliament has a unique role in our society. Parliamentarians are responsible for legislating, scrutinising legislation and holding the Government to account. In addition, MPs are responsible for representing their constituents. However, individual MPs and Peers do not directly take decisions on behalf of the state, nor do they have access to the kind of government information that would be available to Ministers. For that reason, we have come to the conclusion that it would not be appropriate to extend the offences in the Bill to all MPs and Peers—and they are not extended to judges either. We have the wide group of offences designed to replace misconduct in public office, which applies to Back-Benchers, the Opposition and the judiciary, and this narrow offence designed to cover those who take decisions.
Of course, the Government agree that misleading the public in any capacity is not acceptable, and there should be consequences for parliamentarians who do so, but this new offence is not the appropriate vehicle for regulating political speech. Parliament has its own arrangements for ensuring accuracy and truthfulness in proceedings, including processes for determining whether MPs have misled the other place, and it is for the House of Lords Procedure and Privileges Committee to consider any instances where a Member of your Lordships’ House is alleged to have misled the House. This reflects the important principle that parliamentary proceedings are rightly privileged and cannot be questioned in a court of law. Each House is responsible for determining the right sanctions when it is alleged that someone has misled the House.
Members of both Houses must also act in accordance with the Nolan principles in all their public functions, and the very high standards expected of public office holders, conducting themselves with honesty and integrity. It is for each House to determine the procedures for investigating and sanctioning those who break the rules. The Government are confident that the scope of the new offence, combined with the existing arrangements and the codes of conduct for parliamentarians, strike the right balance between capturing the most serious wrongdoing while not infringing the tried and tested procedures that govern all noble Lords and all those in the other place to ensure that we conduct ourselves to the highest standards.
This has been an interesting and important debate and I will of course meet the noble Baroness, any lawyer she wants to bring with her and indeed any other Members of your Lordships’ House who would like to discuss this further.