Lord Lemos (Lab)

My Lords, I thank the noble Baroness, Lady Brinton, for raising on behalf of the noble Lord, Lord Marks, the topic of how contractors and subcontractors are covered by the various provisions in the Bill. Taken together, the amendments would bring anyone who provides a service to a public authority into the definition of “works for” a public authority for the whole of the Bill. It would mean that anyone providing a service is under the duty of candour and assistance at inquiries and investigations, that they are covered by public bodies’ codes of ethics and that the offences of misleading the public and misconduct in public office apply. We do not think this is a proportionate approach. Anyone providing a service could include cleaning staff, catering staff and stationery suppliers employed by private companies. The Bill takes a more targeted approach. Contractors are under the duty of candour and assistance if they carried out activities in connection with the incident under investigation as a service provider to a public authority and their activities had a significant impact on members of the public. We recognise that this applies only to main contractors. However, we have heard the views of a number of Peers that this should also extend to subcontractors and are considering that point. We will come back to it on Report. Codes of ethics will apply to those who work for public authorities, not contractors providing services. We think it is right that public bodies should be able to set codes of conduct for their own employees, but private companies providing services should be recognised as such. There are rules governing public sector procurement separate from the Bill. With regard to the questions the noble and learned Lord, Lord Keen, asked me about cost, procurement and so on, I am very happy to write, but some of those points were covered in the impact assessment and I am sure will be covered in the revised impact assessment. I will happily take it away and write. We think it is right that anyone delivering a public function can be subject to the misleading the public offence, but not contractors providing other services that are not public functions. The misleading the public offence is targeted at those entrusted by the public to provide public functions abusing that trust by misleading the public. Contractors of public services who are not delivering public functions themselves are not in that position. Private industries in various sectors are of course subject to their own regulations. Similarly, we think it right that the offence of misconduct in public office applies to those who hold public office, not anyone who happens to provide a service to those in public office, whatever that might be. Earlier, I said I would come back to this point: subcontractors will be covered, as long as they come under the definition of a worker, as set out in the Employment Rights Act 1996. I know that these are not quite the answers that the noble Lord, Lord Marks, wanted, but I hope that, with the assurances that I have given about our consideration of the merits of covering relevant subcontractors in the way I have set out, the noble Baroness will be satisfied to withdraw her amendment.