Lord Keen of Elie (Con)

My Lords, I begin by paying tribute to the families of those who died at the Hillsborough tragedy in 1989. Their decades-long campaign for justice and accountability has demonstrated a resilience and dignity that should inspire us all. I am sure noble Lords are united in the determination that such a disaster should not happen again and that if such a situation were to reoccur, the institutions of the state should act with transparency and honesty. That is the spirit in which I rise to speak on this Bill today. Before turning to specific provisions, I must note something about the legislative journey of the Bill. In 2024, it was promised as one of the first Acts of this Government, and yet here we are two years later still debating the provisions. It is a Bill that now looks very different from its original proposals. At the very least, this speaks to the genuine complexity of balancing the duty of candour with the imperatives of national security. Despite the long wait to get to this point, the Government’s amendments addressing intelligence services were proposed with little more than 24 hours’ notice before the Commons scrutiny. This is arguably one of the most important areas of the Bill, with serious potential ramifications for safety and national security. Whatever one’s view on those amendments, they deserve more careful consideration than that timeframe allowed. It is therefore the duty of this House to provide the detailed and deliberate scrutiny that the Commons schedule did not permit. I thank the Minister for engaging constructively with the concerns we raised. His recent letter to me engaging with some of my early concerns, and his willingness to meet with me ahead of this debate, demonstrate that the Government are prepared to engage in genuine dialogue. The questions I raise today are therefore presented in a spirit of collaboration and constructive feedback. We seek to understand the Bill better, not to obstruct it. With that in mind, I turn to several matters that merit the Minister’s attention. The first is the scope and operation of the duty of candour. Clause 1 sets out the purpose of the Bill, but the duty of candour itself is framed in expansive and potentially uncertain language: to act “with candour, transparency and frankness … promptly and proactively; with full disclosure of evidence—and without favour” to one’s own position. This raises important questions about when this duty is engaged and how it operates in practice. Clause 2 requires a person to notify an inquiry that their acts or information may be relevant. When is a person subject to this obligation? Is it constantly triggered, or only when an inquiry has been formally established? The Minister’s letter helpfully suggests that this obligation can be “switched off” depending on circumstances—for instance, in a large inquiry, where it would be impractical to require all potential witnesses to come forward—but what mechanism exists to switch it off? Who decides to switch off this obligation? What recourse does an individual have if they believe the obligation has been wrongly triggered or applied? Furthermore, Clause 3 provides that the duty does not require breaching obligations under other legislation. However, the Bill creates many new duties. I would be grateful if the Minister could explain whether the duty of candour interacts with existing statutory duties—for example, the duty of candour already embedded in National Health Service regulations and the Freedom of Information Act’s exemptions. I also invite the Minister to explain whether any guidance or code of practice is planned to clarify these interactions. The Bill as drafted also raises issues relating to evidential burdens and the long-standing right against self-incrimination. Clause 2 contemplates the extension of the duty of candour to “other investigations” beyond inquiries, and it would appear that this might include police misconduct investigations. However, here we face a potential difficulty: if a public official is required under Clause 2 to disclose information or acts in the course of an investigation, and if they decline to do so without good reason, they may face prosecution under Clause 5. Yet if that investigation subsequently becomes criminal in nature, that same official might face the consequence of self-incrimination. The Bill does not require an official to incriminate themselves, but it does inadvertently create a trap whereby an official must choose between incriminating themselves or facing prosecution for a breach of the Clause 2 duty. I have been told that the Bill does not intend to compel criminals to self-incriminate, but I must confess that I remain unclear as to how this will work in practice. Perhaps the Minister can provide clarification today on the interplay between the duty of candour and the privilege against self-incrimination. Clause 6 has also been a source of concern. I know that other noble Lords are taking a close interest in this part of the Bill so I will not go into it in detail, other than to say that the burden placed on the security services must be closely monitored to ensure that they are properly resourced and that their operational requirements will not be constrained by this further burden on their resources. There will also need to be a means of assuring foreign services with whom we exchange intelligence that this legislation will not weaken control of sensitive material. Rather than simply saying that existing safeguards will be sufficient, it would be better for the Government to provide clear guidance on how existing controls will be operated under this new regime. I expect we will return to this in Committee. I turn to Clause 10, which imposes a duty on public authorities to promote standards of ethical conduct. I would be grateful if the Minister could indicate, either today or in writing before Committee, what analysis the Government have undertaken on the costs of this requirement and what assessments have been made of its likely effectiveness. There is always the risk of a further bureaucratic burden being placed on authorities which are not properly resourced. Finally, I turn to some suggestions for the Minister for the creation of certain new offences to improve public official accountability. The Bill creates new statutory offences to replace the common-law offence of misconduct in public office. These include the offence of misleading the public under Clause 11 and the offence of seriously improper acts under Clause 12. We are anxious to explore whether these provisions adequately capture two scenarios: first, the deliberate misleading of a Minister by a civil servant; and secondly, the deliberate destruction of documents by a public official. These are grave matters and I am unclear as to whether the proposed new offences would capture them. I would be grateful to the Minister if he could explain the Government’s perception of these issues. The Bill addresses matters that are of profound importance to public trust in state institutions and the House has a duty to scrutinise it carefully. I am confident that, with the Minister’s continued engagement, we will do so constructively. I look forward to further discussion in Committee.