Contribution
My Lords, at first sight, Amendment 27 in my name appears to concern sentencing, but actually it concerns whether the Bill will deliver the cultural change that it seeks to achieve. The Bill is founded on a simple proposition: when things go wrong, public authorities and public officials should tell the truth. They should disclose relevant information, co-operate with investigations and inquiries, and assist those who are seeking to establish what happened. But for too many victims and bereaved families, the injustice has been not just the original event itself but the subsequent struggle to establish the truth. The duty of candour is intended to address that problem. It seeks to encourage openness rather than defensiveness, disclosure rather than concealment and accountability rather than institutional self-protection. But if the Bill is to achieve that worthy objective, we must ensure that we do not inadvertently undermine it simultaneously.
Clause 5 provides that a deliberate breach of the duty of candour carries a maximum sentence of two years’ imprisonment. Yet Clauses 13 and 14 create offences criminalising seriously improper acts or breaches of duty which carry maximum penalties of 10 and 14 years respectively. So a public official who has behaved or fears that they may have behaved in a way which might bring them under suspicion of the more serious offences faces a choice—risk two years for breach of the duty or risk the much longer sentences which might be imposed for Clauses 13 and 14.
What message does that send? Does it encourage disclosure, or does it risk creating an incentive for concealment? A person who believes that honesty may expose serious wrongdoing could conclude that remaining silent is the less risky course. Whether or not that calculation ultimately proves to be correct, legislation should not create circumstances in which that looks like a rational, and therefore a tempting, choice. The purpose of this Bill, surely, should be to make candour the safer option, but, as drafted, there is a risk that the opposite conclusion may be drawn. This matters because this Bill is ultimately about changing the culture. Public officials should understand from the outset that honesty, openness and co-operation are expected and that attempts to frustrate accountability are unacceptable. If this Bill succeeds in changing the culture, there should not be more prosecutions, but fewer.
The criminal law has long recognised that conduct which obstructs the search for truth can itself be extremely serious. The offence of perverting the course of justice is an obvious example. Justice depends upon evidence, disclosure and honesty. Deliberate attempts to conceal information or frustrate the discovery of the truth undermine that process and can cause profound harm, so the offence of perverting the course of justice carries a maximum sentence of life imprisonment. The same principle should apply here. A deliberate breach of the duty of candour is not merely a failure to provide information. In serious cases, it may impede the investigation, delay accountability, hinder the discovery of the truth and undermine public confidence in public institutions. Indeed, experience shows that some of the most significant public scandals have been made far worse by subsequent efforts to conceal the truth about the original incident.
The question for the Government is, in many ways, a simple one: will there be cases of deliberate concealment by public officials that are so serious that a maximum sentence of two years’ imprisonment would be inadequate? I suggest that it is all too easy to imagine such cases. This Bill should make it clear that a breach of the duty to be honest and open is not some mere administrative infringement but a serious offence which, in some cases, is more akin to perverting the course of justice. I suggest that pinning the maximum to the maximum for the offence in Clause 14 strikes the right balance. Judges would, of course, have their ordinary duty to impose a sentence based upon the facts of the individual case, and only the most serious cases would ever approach the statutory maximum, but maximum penalties serve an important function in and of themselves. They express Parliament’s view of the seriousness of a particular conduct and help communicate the standards of behaviour which Parliament expects.
This amendment is not intended to secure longer sentences for their own sake. Its purpose is to ensure that the structure of the Bill supports the objective that underpins it, fostering a culture of openness, accountability and candour in public life. If this Bill is to change culture, it must send a clear message: candour is expected; concealment is unacceptable; and those entrusted with public responsibilities should never conclude that withholding the truth is safer than disclosing it.