Contribution
My Lords, I shall focus my remarks on a less frequented part of the Bill, Part 3, which repeals the common-law offence of misconduct in public office and replaces it by new statutory offences. It is almost six years since the Law Commission reported on this, after a detailed statutory consultation. The common-law offence is an ancient one, but fell largely into disuse during the 20th century. Attempts to use it again more recently have demonstrated its defects, notably a lack of clarity and precision. These defects created the potential for what the Law Commission described as misuse—for example, in prosecuting journalists—injustice, and a tendency to target junior rather than senior officials. The Law Commission recommended that the common-law offence be repealed and replaced by two statutory offences. It is to the Government's credit that this recommendation is given effect in the Bill. What remains for us, I suggest, is to ensure that the statutory offences have the clarity, the precision and the efficacy that the common law lacked.
With that in mind, I have three concerns in particular. First, the Clause 13 offence is committed only if a person uses their office
“to obtain a benefit … or to cause another person to suffer detriment”.
Any defence lawyer worth their salt will take this as an invitation to argue that the offence can be committed only if a benefit is actually obtained or a detriment actually suffered. That may, to be fair, not be the Government’s view. A Minister stated in Commons Bill Committee last December that the offence can be committed, as the Law Commission recommended, where public office is used with the intent to obtain a benefit or to cause detriment. That would correspond, as the noble Baroness, Lady Hamwee, indicated, with the position under the Bribery Act 2010, in Section 2. But laws need to be clear on the face of the statute book, particularly when they fall to be applied by juries. I hope Clause 13 will be amended to put this beyond doubt.
Secondly, the deliberately narrow defence recommended by the Law Commission to protect whistleblowers, which would require officeholders to prove that their conduct was in the public interest, has been translated in the Bill into a far broader defence of reasonable excuse. This would weaken the offence, opening the way for defendants who have behaved in a seriously improper way to seek to avoid penalisation by relying on such matters as short staffing or lack of training—matters which might be considered a reasonable excuse but which are obviously not in the public interest. The impact assessment makes the point that honest mistakes or finely balanced operational decisions should not be caught by this offence—indeed so—but the requirement of seriously improper behaviour ensures that they will not, whatever the scope of the statutory defence.
My third concern relates to the Law Commission’s recommendation that contractors who exercise functions or perform work on behalf of the Government should be covered by the definition of public officeholder. However, the definition of “works for” in Clause 25(3) is a narrow one. It encompasses a contract of employment, but not a contract to provide public functions. Schedule IV to the Bill is less clear and less extensive than it should be—the noble Baroness, Lady Levitt, has given one example and promises more; I was delighted to hear it—and there is no explicit provision for corporate liability accompanied by consent and connivance liability for company officers, as again there is under the Bribery Act.
Finally, I make one further reflection. The terms of reference of the Ethics and Integrity Commission created in October 2025 task it with advising
“public authorities on the development of clear codes of conduct with effective oversight arrangements, in line with the planned forthcoming obligations of the Public Office (Accountability) Bill”.
Yet the source of such guidance is stated in Clause 11 of the Bill to be not the Ethics and Integrity Commission but the “appropriate national authority”. As the noble Lord, Lord Bichard, suggested, and as Clauses 11(4) and 24 confirm, this appears to mean the Government. So my question to the Minister is: have the Government had second thoughts about giving the Integrity and Ethics Commission a role in this Bill, and, if so, why?
More broadly, the independence and indeed the very existence of the commission are currently guaranteed by nothing more than whether the Government of the day desire them. A future Government could sweep it away without the need even for the assent of Parliament, dismissing as a quango a body whose whole purpose is to guard against the abuse of executive power.
The Committee on Standards in Public Life, under the chairmanship of the noble Lord, Lord Evans, made a powerful case in its 2021 report Upholding Standards in Public Life for placing constitutional watchdogs on a statutory footing to give them at least the protections of Parliament. I wonder whether that is something that should be envisaged for the Ethics and Integrity Commission—and I wonder whether this Bill might play its part in achieving that.