Lord Lemos (Lab)

I will happily check. The decision by an Attorney-General to give an undertaking is made after consideration of a range of matters against a public interest test. Given that the duty applies at inquiries, we are being consistent with the process that is followed at inquiries now, where the Attorney-General is asked to provide an undertaking and will decide whether it is appropriate to provide one in the circumstances. Amendment 6A, tabled by the noble and learned Lord, Lord Keen, would disapply the duty of candour obligations in larger inquiries, where they may might not be practical. The noble and learned Lord is raising an important point, and it is certainly not the intention of this Bill or the duty of candour to impose impractical processes on public bodies. We recognise that sometimes, the requirements for officials to proactively notify an inquiry or investigation, where they have grounds to believe they may be relevant, would be impractical for the inquiry itself. Clause 3(2) therefore provides important flexibility for inquiries and investigations to alter the requirement for public officials and authorities to notify the inquiry or investigation if they have reason to believe they are relevant. Clearly, it would have been impractical, for example, for every NHS worker who responded to the pandemic to notify the Covid-19 inquiry of their possible relevance. The same concern does not apply to the obligation under Clause 2(4). Inquiries will issue compliance directions to public authorities where they are relevant, and to individual officials where they would be of assistance to the inquiry. Compliance directions can specify the assistance required, giving inquiries control of the information and assistance they require. They do not need to oblige multiple officials to provide duplicative information. Amendment 19 would require the Government to publish statutory guidance about how the duty will interact with other duties. The Bill is already clear that the duty of candour does not require a public authority or public official to breach any prohibition or restriction imposed by or under an enactment or a rule of law, and it is subject to such other exceptions as are provided for by any other enactment. While not required, the Government intend to publish guidance about the duty before it commences. I apologise for promoting the noble Lord, Lord Wolfson, earlier—promoting people is better than demoting them. He asked me about guidance in relation to an earlier group of amendments, and we will be publishing guidance; I cannot undertake to produce it by Report, but I promise to share it with the Opposition and other parts of the House when we have it. Amendment 23, tabled by the noble Lord, Lord Wills, seeks to extend freedom of information obligations to service providers brought into scope of the duty of candour and assistance by Clause 4 of the Bill. We think it appropriate to extend the duty of candour and assistance to private bodies with relevant public responsibilities—we will come back to this in our discussion about sub-contractors—within the specific context of an inquiry or investigation. However, they remain private bodies, and we do not think this Bill is the place to begin altering the scope of the Freedom of Information Act. I turn to the amendment from my noble friend Lady Levitt. I should of course take the opportunity, as I did at Second Reading, to thank her for all her work and support on the Bill hitherto; I am standing in big shoes. Her Amendment 27 would replace the maximum penalty of two years’ imprisonment for both the offence of the duty of candour and assistance with 14 years’ imprisonment, in line with the other offences in the Bill relating to misconduct in public office. I hope my noble friend will understand that we have set the maximum penalty for a breach of the duty of candour and assistance offence at two years’ imprisonment to bring it in line with Section 36 of the Inquiries Act 2005—that is the rationale—which allows for the court to make an order to direct compliance with Sections 19 or 21. The maximum penalty for breaching that order is two years’ imprisonment. Given that the duty of candour and assistance is focused solely at inquiries and investigations, the Government consider that there is a strong rationale for maintaining consistency with the existing maximum penalty. Amendment 63, tabled by the noble Baroness, Lady Brinton, seeks to strengthen codes of conduct for NHS foundation trusts by mandating reporting of concerns in relation to systemic malpractice or serious wrongdoing relating to patient safety. I understand what the noble Baroness seeks to achieve with this amendment. I note also the comments from the noble Baroness, Lady Featherstone, about her experiences as an MP with the NHS and her comments at Second Reading. I pay tribute to her for all the sincerity that she has brought to this discussion. The Bill already recognises that different public authorities will need to tailor their own codes of ethical conduct to respond to the specific needs of their organisations and service users. It is the Government’s view that the existing approach is flexible enough to ensure that public authorities are able to do this while being clear about strict minimum standards for what codes of ethical conduct must include. I hope it is reassuring to the noble Baronesses, Lady Brinton and Lady Featherstone, to note that the Department of Health and Social Care is reviewing its own duty of candour policy with a view to making it more effective. I turn to Amendments 64, 65, 67, 69 and 140. I thank the noble Baroness, Lady Jones, for tabling these amendments, which seek to ensure that higher education providers are brought into scope of the provisions of the Bill in so far as they exercise functions of a public nature. The definition of a public authority and public official for the purposes of the duty of candour and assistance is analogous to that in the Human Rights Act, which includes any individual or body carrying out a public function as far as that public function is concerned. I can assure her that universities are captured by this definition. This means that they must comply fully with the duty of candour and assistance at inquiries and inquests. The requirement to promote and maintain standards of ethical conduct through a code of ethics is restricted to core public bodies and therefore does not extend to universities. However, registered higher education providers are subject to regulation by the Office for Students, which sets out the ongoing requirements. It will be for the Office for Students to deal with the specific questions that the noble Baroness raised about particular aspects of the life of universities. I hope that, with this clarification about the role of the Office for Students, the noble Baroness will not press her amendments.