Public Office (Accountability) Bill
Monday, 12 October 2026
Contributions
Committee (1st Day)
Welsh legislative consent granted, Northern Ireland and Scottish legislative consent sought.
Clause 1: Purpose of Act: implementing duty of candour etc
Amendment 1
Moved by
1: Clause 1, page 2, line 11, at end insert— “(3) Subsection (1) sets out the purpose of this Act for the purpose only of interpreting the duties imposed, and offences created, by Parts 2 to 4, and does not of itself—(a) impose any duty on a public authority or public official,(b) confer any power on, or provide any justification for, a public authority or public official to act otherwise than in accordance with a lawful instruction or direction given to them, including an instruction given by or on behalf of a Minister of the Crown, or(c) provide a standard against which the conduct of a public authority or public official is to be assessed, other than in determining whether a duty under this Act has been complied with or an offence under this Act has been committed.”Member's explanatory statement This amendment would make clear that the reference to "the public interest" in clause 1(1)(b) is an aid to interpreting the specific duties and offences in the Bill. It would not be a freestanding duty, and no official could rely on it to justify refusing a lawful instruction.
Lord Young of Acton (Con)
My Lords, I declare my interest as the director of the Free Speech Union. In my short time in your Lordships’ House, I have developed a rule of thumb: when a Bill is brought forward in response to a national outcry over a terrible tragedy, it often goes far beyond what is needed to prevent that tragedy happening again. This Bill is one such example. I am sure that we will come to the other shortcomings of the Bill in due course, but this amendment addresses the purpose of the Act as set out in Clause 1. The purpose of the Act, it says, is to ensure that public authorities and public officials “at all times perform their functions … in the public interest”. Surely this casts the net too widely, particularly as the public interest is nowhere defined in the Bill. Let me give a practical example of an unintended consequence this could have—I am indebted to my noble friend Lord Goodman of Wycombe for suggesting this scenario. Imagine that a Conservative Government are elected on a manifesto commitment to leave the European Convention on Human Rights. The Prime Minister instructs the Cabinet Secretary to begin the process of preparing notice of withdrawal under Article 58. Let us assume that there is no debate about whether that instruction is lawful; in my hypothetical example, that issue is settled. But the Cabinet Secretary refuses to carry out the instruction because they believe that leaving the convention is contrary to the public interest. Incidentally, they are also concerned that if they carry out the instruction, they could face a slew of private prosecutions led by Jolyon Maugham for acting in a way that is “seriously improper”, as per Clause 13. I know that private prosecutions require DPP consent, but who is to say that a Labour-appointed DPP would not give consent to a private prosecution of a Cabinet Secretary who helps a Conservative Government leave the ECHR? If they refused consent, Jolyon Maugham would, of course, JR that decision, and he would point to Clause 1 when seeking permission from the High Court, arguing that “seriously improper” conduct should be understood with reference to the requirement in Clause 1 to always act “in the public interest”. In any event, in this scenario, the Cabinet Secretary point blank refuses to carry out the instruction. Faced with this refusal, the Prime Minister makes it clear that, unless it is carried out, the Cabinet Secretary will be dismissed for gross misconduct. Under the law as it stands today, that would settle the matter. The Civil Service Code is clear: officials carry out Ministers’ lawful instructions, whatever their personal views. But once the Bill is on the statute book, the Cabinet Secretary could say: “Refusing a reasonable instruction may be misconduct, Prime Minister, but Parliament has insisted that I perform my functions in the public interest at all times. An instruction to act contrary to the public interest cannot be reasonable. Therefore, my refusal to carry out this instruction is not misconduct, let alone gross misconduct”. Of course, the Prime Minister could sack the Cabinet Secretary nevertheless, but that would be more risky once the Bill becomes law, because the former official would in those circumstances have a stronger claim for unfair dismissal in an employment tribunal. Would the claim succeed? It may or it may not. An employment tribunal might well conclude that the instruction was reasonable, i.e. not contrary to the public interest— although that is surely a matter for the electorate and not a judge or a judicial panel. But that is not the point. The point is that Clause 1 would give the sacked official an arguable case. Thanks to Clause 1, the claim would be less likely to be struck out at a preliminary hearing than it would be at present. It would very probably proceed to a full hearing, at which a tribunal would be invited to rule on whether the elected Government’s central manifesto commitment was in the public interest. In all likelihood, the Government would settle. We know roughly what that would cost. The going rate for a negotiated departure of a Cabinet Secretary is now approaching £1 million; perhaps it will be more in due course, since the Employment Rights Act will remove the cap on compensation for unfair dismissal from 1 January next year. Who is to say that the Prime Minister would be able to find a replacement willing to carry out the instruction, particularly with the threat of a private prosecution looming over their heads? I expect the Minister to say two things in response. First, I expect him to say that a purpose clause does not, by itself, impose any duty on anyone. But courts and tribunals construe statutes purposively, and a purpose clause is one of the places they look to discern Parliament’s purpose, particularly where the operative provisions turn on open-ended words such as “proper”, “reasonable” and “seriously improper”. Secondly, the Minister may say that the Civil Service Code already requires officials to obey lawful instructions. That is quite so—but then the Government should have no difficulty confirming that nothing in Clause 1 qualifies the code, which is all my amendment would do. If the Government genuinely believe that Clause 1 creates no freestanding duty then accepting this amendment would cost them nothing. If the Minister will not accept it, I ask for an assurance when he responds that nothing in Clause 1 imposes a duty on any official, justifies them departing from a lawful ministerial instruction or in any way qualifies the Civil Service Code. Voters are not disillusioned with politicians because they are corrupt; they are disillusioned because politicians promise to fix things, such as the shortage of affordable housing, and then discover when they achieve office that they lack the power to do so. It was reported that Sir Keir Starmer complained privately that, when he pulled the levers in Number 10, nothing happened. This Bill unamended, or without suitable assurance from the Dispatch Box, would make that situation worse, not better. I beg to move.
Baroness Brinton (LD)
My Lords, I thank the noble Lord, Lord Young of Acton, for his introduction to his amendment. I think I am probably not alone in being slightly surprised by his interpretation of what the effect of the Bill might be. My reading of the Bill is that, where somebody is caught by the Bill—which would include the Cabinet Secretary and other senior officials or chief executives of organisations fulfilling public duties—it is very clearly demonstrated what the boundaries are. Clause 5, on inquiries, talks about the condition mentioned in subsection (2)(a) being that the act that has been carried out must have “departed significantly from what is to be expected in the proper exercise of the person’s functions as a public authority or public official”. Clause 13, on “Seriously improper acts”, says that: “A person who holds public office commits an offence if”, and then gives the examples of using their office to “obtain a benefit” or that “they know, or ought to know, that doing so is a seriously improper act”, which I think the noble Lord, Lord Young, referred to in his own contribution. It then goes on to explain exactly how that would work. The idea that random members of the public might start suing the Cabinet Secretary because they disagree with what he has done, or, conversely, with what a politician has said and the Cabinet Secretary has refused to do, is different. This is predicated on maleficence by individuals—and that is for everybody who is caught by this Bill, whether they are senior politicians, Ministers or senior officials. I would be very concerned if this amendment proceeded further. I am sure the Minister will have a response but, from my perspective, everything the noble Lord, Lord Young, said just does not ring true of the detail of the Bill we are about to examine in Committee.
Lord Keen of Elie (Con)
My Lords, as we begin Committee on this important and complex Bill, I say briefly, if I may, that I look forward to working with the Minister, who has already taken great care to engage with the Official Opposition and noble Lords across the Chamber. I hope that that constructive engagement will continue as we scrutinise the Bill in Committee. This is clearly an important Bill, which was promised in the Labour Party’s manifesto, and we will continue to work with the Government to scrutinise the Bill in detail. Although we may have concerns about the approach taken by the Government, we recognise that the Bill is covered by the Salisbury/Addison convention. Perhaps more importantly, we recognise the immense pain felt by the Hillsborough families, who have waited far too long to get to this point. Recognising that important context, we will move as quickly as possible in our work to improve the Bill. I thank my noble friend Lord Young of Acton for moving his amendment, which makes a number of specific points to which I hope the Minister will respond clearly. My noble friend’s amendment would clarify that the effect of the public interest test in Clause 1 is limited in its legal effect to the proper understanding of this purpose of the Bill, rather than, for example, imposing a wider duty on public officials to abide by a public interest test or the creation of a power for public authorities and officials to act otherwise than on a lawful instruction or direction that had been given to them. I hope that the Minister will rule out the possibility that Clause 1 creates a public interest standard against which the conduct of a public authority official is judged, except in respect of the provisions of the Bill. My noble friend’s amendment speaks to recent instances where Ministers and former Ministers of the Crown have felt that their instructions to officials have not always been carried out in a timely way or, in some cases, at all. The core principle which has been mentioned, and which should be reinforced, is that advisers advise and Ministers decide. I hope the Minister will agree with me on that. If so, I think it follows that he should respond to the concerns of my noble friend Lord Young of Acton by categorically ruling out the possibility that Clause 1 creates a wide, cross-government public interest test that would allow public authorities or officials to ignore lawful instructions or directions from a Minister. Perhaps the Minister could begin his response by giving that categoric assurance.
The Parliamentary Under-Secretary of State, Ministry of Justice (Lord Lemos) (Lab)
My Lords, I join with the noble and learned Lord, Lord Keen of Elie, in thanking all noble Lords who have worked with me over the Recess on the Bill. We can see from the number of amendments, and the careful way they have been set out, that noble Lords have put a lot of time and effort into them. I am very grateful for that and, as the noble and learned Lord said, I am grateful to take this forward. The Bill has been a long time coming and the families have been waiting for it for a long time, and I am glad we are moving at pace. I absolutely give the undertaking that the noble and learned Lord asked for: we should continue in the constructive and collaborative way that we have taken thus far. I reassure the noble Lord, Lord Young, that Clause 1 is a purpose clause and does not have any legal effect in and of itself, separate from the other provisions in the Bill. Its purpose is designed to set out the overarching intention behind the Bill and to explain how the substantive provisions of the Bill work together to achieve that intention. To that extent, the noble Lord’s first prediction was correct. As is often the case with purpose clauses, it provides context for the Bill as a whole. The legal rights, duties and obligations created by the Bill are found in its operative provisions, not in Clause 1 itself. In this context, acting in the public interest really means fulfilling the obligations and duties contained in the remainder of the Bill and those that arise from it; I hope that addresses the specific point that the noble and learned Lord, Lord Keen, put to me. It means being candid and transparent at inquiries and investigations. There was much speculation about various hypotheses in the comments of the noble Lord, Lord Young, but we are quite clear about the specific context in which this Bill will apply. We are ensuring that those working for public authorities adhere to the codes of ethics required by the Bill, and we shall return to that later in Committee. The Government therefore consider that the existing drafting already achieves the intended objective of the clause. The purpose clause provides a clear description of the principles that underpin the Bill, while leaving the substantive provisions to give effect to those principles, including with reference to the public interest.
Lord Young of Acton (Con)
I thank the Minister for giving way. Can he just explicitly assure the House that nothing in Clause 1 qualifies the Civil Service Code?
Lord Lemos (Lab)
I am sure the noble Lord will understand that I do not want to do that without getting some advice from my officials, but I will certainly come back to him on it. The Civil Service Code and the Ministerial Code are very specific things. The purpose clause does not define the specific requirements of the Bill; it is the substance of the Bill. I am very happy to get good advice. I do not want to say things that I might have to correct. I do not see any particular issues with the Civil Service Code, but I will happily check. For the reasons I have given in relation to the overall purpose clause, I hope that the noble Lord will be prepared to withdraw his amendment at this stage.
Lord Young of Acton (Con)
I thank the Minister for his answer and the contributions to the debate. I await further assurances. Assuming they are given, I will not raise this again. In the meantime, I beg leave to withdraw the amendment.
Amendment 1 withdrawn.
Clause 1 agreed.
Clause 2: Duty of candour and assistance
Amendment 2
Moved by
2: Clause 2, page 2, line 20, after “(4)” insert “, (4A)” Member’s explanatory statement This amendment is consequential on Baroness Kramer’s amendment at page 2, line 39, and includes the new duty within the duty of candour and assistance.
Baroness Kramer (LD)
My Lords, I thank the Minister for holding a meeting for Peers at large, which I was able to attend. I acknowledge all the advice I have received from WhistleblowersUK, Blind Justice UK, Hillsborough Law Now and Protect. This group of amendments tackles a crucial weakness in the Bill. Put very simply, those who speak out with candour—most of us call them whistleblowers—must be safe from retaliation and be sure that credible information will be investigated. That sounds obvious and simple, but it is very far from the current reality, and the Bill does nothing significant to correct it. The current whistleblowing framework, set out in the Public Interest Disclosure Act, is hopelessly inadequate. It does not ensure investigation. Worse, public authorities and private companies, together with their legal teams, have worked out how to weaponise PIDA to silence whistleblowers. PIDA seems to offer a way for a whistleblower to make confidential disclosures, but in reality they are often easily identified and any effective protection is negated. Under PIDA, workers—and it remains, despite some expansion, a narrow definition—who speak out and become victims of retaliation can go to employment tribunal for redress but not protection. Legal support in tribunal costs as much as £30,000 just for a preliminary hearing. The employers are presumed to have acted properly, so whistleblowers must prove with hard data that their firing was related to whistleblowing. It is often impossible to access that hard data. Cases are usually dragged out for years, while the whistleblower has no job, faces informal blacklisting and loses their home and often their family. No wonder so many settle, are silenced by NDAs or simply walk away. No wonder investigations of wrongdoing languish while the focus is on destroying the whistleblower. My amendment seeks to tackle that, as do excellent amendments from the noble Lord, Lord Wills, and the noble Baroness, Lady Featherstone. I anticipate that we will consolidate on Report, but today we will underscore the seriousness and dreadful breadth of the issue. If we do not solve it, at least for public authorities, we will undermine this excellent Bill. My Amendment 6, also to Clause 2, would assert that, “a public authority or public official must not subject” a whistleblower to any detriment because of their whistleblowing. In Clause 5, my amendment would make it an offence for a person to impede, retaliate against or victimise a whistleblower for whistleblowing. After Clause 7, my amendment would void any part of an NDA that prevents a person from assisting in an investigation or inquiry. My amendment in Clause 10 tries to put some iron into the code of ethical conduct to get it to require investigation and protection from detriment. After Clause 10, my amendments would create a duty to investigate and to prevent retaliation, and, after Clause 20, I would require a review. All of those amendments I have listed—and I am not going to read them out in detail because the Committee has the Marshalled List before it—are, frankly, complete no-brainers. They would require a change in the rules and a change in mindset, with consequences if it does not happen, but they would set up no new bodies nor require reorganisation. That is the easy stuff. However, in my later amendments, I have inserted the most extensive of my proposals, to create a full public authority—an independent office of the whistleblower—and I thank the noble Lord, Lord Wills, a determined campaigner on these issues, for adding his name to that amendment. My last amendment in this group would require the office to set in place mechanisms to enable civil servants to make disclosures to an independent body outside of their department if they believe that the department has failed to investigate a disclosure properly. Let me explain the office of the whistleblower. This is designed to be a hub of expertise with spokes to the relevant public authorities, regulators and enforcement agencies for whom it sets standards, provides expert support, ensures good communication and can identify potential concerns. As a safe place to make a disclosure, it would be able to give clarity and confidence to whistleblowers. It would have the capacity for the proper triage of incoming information so that insubstantial and mischievous reports would be set aside, but credible concerns would be identified and investigated by the right body. Crucially, it would have a powerful role in taking action to prevent detriments or requiring remedy if detriment has occurred. When I talk to most regulators, they almost sigh with relief at the thought of an expert body to turn to. Enforcement agencies light up at the potential stream of key information, while whistleblowers lose much of their fear. It will never be a total panacea, but it is a game-changer for true transparency, safety for whistleblowers and active investigation. The hub structure I described is key. In the USA, there are multiple offices of the whistleblower, and I am always urged not to make the same mistake of setting up multiple offices, causing confusion and duplication. The office would not be a rival to other bodies like regulators or enforcement agencies; it would complement what they do and provide for a role that most organisations struggle to cope with. Let me take on the challenge that it would cost money. It would up front, but go to the USA and you will find that offices of the whistleblower have been so successful in bringing wrongdoing to justice that the CFTC alone since 2014 has collected more than $5.1 billion in monetary sanctions, mostly paid on to the Treasury. That includes no calculation of the benefits, including financial, of the deterrent effect, or of stopping wrongdoing before it escalates. In light of this, the Minister will understand my dismay when the ethics code in Clause 10(5) is held up as the Government’s answer. This subsection sets out what information a public authority’s ethics code must contain on whistleblowing processes. I doubt there is a single body in any public authority—or in most private bodies, for that matter—which does not already meet the requirements of this subsection and has done so for years. I understand that the Government take the view that the code of ethics will gradually, over time, change the culture to one where speaking out is safe; but I do not think that all those who fought so hard for this Bill will like the idea of waiting a decade for a gradual nudge to succeed. Speaking at Second Reading, the Minister took the position that this Bill need not do more on this issue because a broader whistleblowing framework will be consulted on by BIST. That same department, in its earlier persona, has already carried out a lengthy review, and it resulted in absolutely no action at all. A new consultation was issued today. I have only had a chance to skim it, but I can say that it has not a word either on investigation or about detriment or retaliation against whistleblowers. It opposes an office of the whistleblower, which it fails to describe in any way that anyone would recognise who read my amendment here or the Private Member’s Bill, which is more extensive. It does consult on a reward scheme for the Serious Fraud Office, which has potential but, frankly, affects very few cases. I am utterly dismayed but not surprised. It is important to understand that BIST’s stakeholders and the people it listens to are, typically, commercial businesses, not public authorities or campaigning people. Some businesses do whistleblowing well, typically by following their own procedures. They do not need any instruction from government. They do it because they think that it is important. However, the majority of commercial businesses want a scheme where they can be Goliath to a whistleblower’s David, protections are very narrow, money buys the KCs and legal giants to wear down a hapless whistleblower, and a whistleblower submits and becomes silent. I am sure that BIST’s stakeholders have made arguments to it about regulatory burden, that it is all about grievances and that it will cost too much. All these are untrue, as can be demonstrated by looking at the US and by radical changes in the EU that are now starting to yield the same kind of results that we have seen in the United States. I cannot sit down without naming Simon Andriesz. He was the whistleblower whose courageous uncovering of evidence of financial embezzlement led, in the USA, to severe financial penalties against a major international finance firm and ongoing investigations of the involvement of major public figures with Epstein. He was a British citizen and was active in the UK. In the UK, his material was, essentially, ignored. His battle for justice effectively ruined him, financially and personally. In September, he took his own life. He had been dealing with retaliation for over 10 years. I met Simon. People close to me were very engaged in trying to support him. He is far from the first whistleblower to be destroyed by the system; I have spoken to many, as has anyone else engaged around this issue. We cannot go on as we are and look the British public in the face. Protect whistleblowers. Investigate credible disclosures. It is not rocket science. It is a way to halt wrongdoing early and, above all, to deter wrongdoing. It is time to take a stand. I suggest that we use the opportunity of this Bill to do so.
Baroness Featherstone (LD)
My Lords, Amendment 50 is in my name and that of my noble friend Lady Brinton. Its purpose is simple: when a public authority receives credible information that something seriously wrong is happening, it should have a duty to do something about it. That may sound obvious, but we know from some of the worst scandals of recent years that this does not always happen. In fact, it rarely happens. In the infected blood scandal, the Post Office scandal and failures surrounding Jimmy Savile there were warnings, concerns and evidence that things were going badly wrong. Yet time and again, opportunities to investigate and act were missed. Very often the problem was not that nobody knew but that people who knew or should have known failed to do anything effective about it. Sometimes concerns were dismissed, sometimes they were passed from one person to another and sometimes the reputation of the institution seemed to matter more than the people being harmed. This amendment is intended to address that problem. It would require public authorities to take reasonable steps to ensure that credible information about serious wrongdoing, systemic failure or a continuing risk of harm is properly considered, investigated where appropriate and acted upon. The amendment would also make it clear that those responsible for the management or governance of an authority have a responsibility to see that this actually happens. Obviously, I am not suggesting that every complaint should automatically trigger a major investigation or that every allegation should be treated as proven. The amendment deliberately refers to “reasonable steps” and to investigation “where appropriate”. But we need to get away from a situation where serious warnings—indeed, multiple warnings—can be ignored, buried or simply passed around until everyone assumes they are somebody else’s responsibility.
There is, of course, an important limitation to the amendment as drafted. It relates to failures to comply with duties under the Bill, rather than creating a general duty to act on every form of serious wrongdoing. I would have preferred it to go much further, but even within that narrower scope, I believe it addresses an important gap. The Bill is about changing the way that public authorities behave when things go wrong. That means not only being honest about what has happened but actually doing something about it when there is credible evidence of a problem. I will be very interested to hear whether the Minister agrees that there should be a clear responsibility to act on such information; if so, whether the Government believe the Bill already provides it; and, if so, where.
Lord Cromwell (CB)
My Lords, I support all the amendments in this group, which is unusual. I will not list them all in the interest of avoiding tedium. Over the years, I have met and listened to harrowing tales from many whistleblowers. Our current legal provisions to protect them and to ensure action on what they reveal are simply inadequate, as the eloquent speech from the noble Baroness, Lady Kramer, highlighted—and as, I am sure, will other speeches that follow. It is important to remember that whistleblowers often start as people trying to help, to right a wrong and to improve the organisation they work for, but they are almost always marginalised, or worse, and the issues raised are ignored or not addressed. Crucial for me among these amendments, which I strongly support, are Amendments 42 and 52, from the noble Baroness, Lady Kramer, which would require organisations to act on what whistleblowers uncover; Amendment 54, from the noble Lord, Lord Wills, and the noble Baroness, Lady D’Souza, which seeks a duty to investigate what is revealed; and Amendment 119, which is also from the noble Lord, Lord Wills—I am sure he will speak soon—which seeks a process of refreshing the protections. If these can be embodied in the Bill then we can start to turn the tide on the difficulties that whistleblowers face. Finally, I turn briefly to Amendments 110 to 112, concerning the proposed office of the whistleblower, which I also support and for which a strong case has just been made. I will comment only on two points: first, the sheer scale of the task that this office would have to take on, given the foregoing comments that I made; and secondly, linked to it, the commensurate need for adequate resourcing of that office. I repeat that I support all the amendments in that group. I will not go through them one by one, but I hope that the Minister, in responding, will give very serious consideration not only to the need but to the practical solutions that they offer.
Lord Wills (Lab)
My Lords, before I speak to the amendments in my name, I extend my thanks to my noble friend the Minister for his openness and willingness to engage with all parts of the House as the Bill progresses through it. We are all very grateful to him. I associate myself with everything that has been said so far by Members of the Committee in speaking to amendments, particularly the magisterial encompassing of the panoramic vision that the noble Baroness, Lady Kramer, gave. I will speak in particular to Amendments 40 and 54, because the Bill, as we all recognise, has the ability and potential to transform our public sector and how it responds to major scandals and wrongdoing within it. Yet simply imposing a duty of candour to speak up without making it meaningful within an organisation and increasing the protections available to those who do may mean that the impact of the Bill will turn out to be not as significant as I think we all want it to be. As others have said, whistleblowing is a vital tool of public accountability. We know from research that when whistleblowers are not listened to, harm occurs to the individual directly affected. Covering up wrongdoing and even criminal behaviour also inflicts significant costs on the wider public. Too often, the taxpayer picks up the bill by way of investigations, inquiries and compensation schemes. The whistleblowing charity, Protect, for example, recently studied three public sector scandals where whistleblower warnings were not heeded. It found that the avoidable costs to the taxpayer totalled over £400 million. Moreover, nearly 40% of callers from local and central government to Protect’s whistleblowing advice line say that their employers simply ignore their concerns. Whistleblowers have two fears: that they will be harmed as a result of speaking up and that it is futile to do so. These amendments seek to address those problems. Amendment 54 seeks to ensure that whistleblowers who come forward can do so with confidence that their claims will be investigated and that they will be safe from retaliation and victimisation. Amendment 40 requires that the disciplinary consequences of failing to comply with this duty to investigate should be set out. Ensuring that everyone in any organisation is aware that failure to comply has severe consequences is crucial in making the duty to investigate whistleblowing effective. I turn to Amendment 119, which is very timely, because at Second Reading and throughout the proceedings today we have heard how important whistleblowing protection is. The Government have recognised the need to legislate for such improvements. I quote from the then Minister in 2024: “We are aware of the long-overdue requirement to look at whistleblowing law ”.—[ Official Report , Commons, Employment Rights Bill Committee, 10/12/24; col. 375.] In 2025, he said that “legislation is now a quarter of a century old” —as the noble Baroness, Lady Kramer, has just described—and “needs looking at in the light of experience and the number of scandals that have been mentioned. We are considering where we go next on whistleblowing legislation ”.—[ Official Report , Commons, Employment Rights Bill Committee, 11/3/25; col. 862.] Well, the Government need think no more, because today they have launched a very welcome consultation on this matter. Once that is concluded, there is no need to delay legislation further for more than the few months needed to digest the results of that consultation. It does not need longer. The problems are well known, as the noble Baroness has described. They have been known for a long time. All the remedies are piled up on the laptops of Ministers and officials, yet legislative time is scarce and fiercely competed for, so with an election looming in the not-too-distant future, any legislation resulting from this consultation could be years away, after many years of prevarication. In the meantime, all the problems and injustices of the current situation will continue. This amendment therefore seeks to head off such a failure by giving government the powers of secondary legislation to do what almost everyone in both Houses, all those who have suffered grievously from deficient whistleblower protection and all those who will suffer in the future recognise as urgently desirable. I hope my noble friend will recognise how helpful I am being in giving him the opportunity to reassure your Lordships’ House, by accepting this modest amendment, that the Government are not using this consultation to kick these critical issues into the long grass once again.
Lord Bichard (CB)
My Lords, at Second Reading, I pointed out that the various failures that we have suffered in recent years—I will not recite them yet again—have happened notwithstanding the fact that we have had codes of conduct in place. The Civil Service Code, the Ministerial Code and the much talked about Nolan principles have not prevented these awful failings taking place. The point of that is to say that codes can become pious statements of good intent. I am absolutely clear that the Government do not want this Bill to fall into that category. If it is not to fall into that category, we will have to ensure that reasonable complaints or requests for investigation, whether from whistleblowers or wherever, are actually investigated. Many of the failings that we have seen are a result of that not being done. I know that it is difficult sometimes—I have run large organisations myself—to conclude whether a complaint is reasonable or significant, but that task needs to be done. I speak in support of the various contributions that have been made simply because I do not want this to become a pious code; I want to be sure that, when complaints and requests for investigations are made, they are actioned and that someone is monitoring that.
Baroness Brinton (LD)
My Lords, we have a very large number of amendments in front of us today, most of them from my noble friend Lady Kramer, who makes a strong case to include whistleblowing in detail in this Bill. I am very pleased to hear from the Minister that there is a consultation out on whistleblowing. From these Benches, we absolutely agree with the comments from the noble Lord, Lord Wills, that we want no delays in implementation. Without whistleblowing being part of the Bill, it is quite clear that things will not change—we have heard the concerns of other noble Lords about that. I want to go back briefly to something that I mentioned at Second Reading. My noble friend Lady Kramer referred to PIDA, or the Public Interest Disclosure Act. When that went through your Lordships’ House in 1998, it amended the Employment Rights Act 1996, in which there had been substantial debate about the responsibilities of employees as well as employment rights. However, it clearly failed on anything to do with whistleblowing, which is why the entirety of the short Bill that became PIDA was to amend the previous Employment Rights Act. Why do I raise that? It is because it is still not working. Even the Employment Rights Act that this House debated last year does not include effective whistleblowing terms. While we are discussing it in the context of the duty of candour, it is actually a much wider problem in the country. It is right that this is our focus, but we must not forget that this country fails at whistleblowing. I was very grateful to my noble friend Lady Kramer for giving us the illustration of what has happened in America since it introduced whistleblowing structures and authorities to make things work. I completely agree with my noble friend Lady Featherstone’s Amendment 50, which I have signed. An important thing when I was health spokesperson for the party in 2020 to 2023 was the number of very serious incidents inside the NHS. By that time, the NHS had had a duty of candour for clinical professionals for four years, which clearly worked in some parts but not in others. I am very grateful to the CQC for meeting me to discuss examples of where it has worked and where it has not. I will come back in later discussions on this Bill to where the CQC thinks it works, but it is important to note that even the regulator talks about poor leadership and a lack of transparency becoming a culture that does not allow whistleblowing. I want briefly to cite a case reported by the British Medical Journal on 26 May 2023 where a senior consultant, obstetrician and gynaecologist was dismissed. After raising patient safety concerns, he was sacked for whistleblowing. Apparently, he was electrocuted by a piece of equipment at work; he reported it and nothing happened. Next time he used it, he was electrocuted again. He reported it again, and things built up until suddenly he became the problem and not the equipment. As a result, a group of more than 1,000 doctors and others supported him, recognising that he was a whistleblower. To this day, his health trust says that he was not sacked for whistleblowing. That is probably true, but everybody knows that his actions were behind that outcome. I have seen this with other consultants, and it is a real problem for the NHS. It is one reason that I am glad that we will be amending the duty of candour for the NHS later in the Bill. Protect, the leading whistleblower charity, as the noble Lord, Lord Wills, mentioned, is really important as well, through its advice line, which tackles whistleblowing in every part of the country; that returns to the issue I was raising about the Employment Rights Act. From these Benches, we absolutely welcome the consultation that has been published today. We urge the Government not just speedily to conclude the consultation and the response to it but to take very serious consideration of the amendments in this group, particularly those from my noble friend Lady Kramer. I look forward to hearing the Minister’s response.
Lord Wolfson of Tredegar (Con)
My Lords, I am grateful to the noble Baroness, Lady Kramer, for leading this group. I know many of her amendments on whistleblowing bear similarities to those proposed by her on other matters in the last Session; in particular, she has previously proposed an office for the whistleblower, with, I note, 16 functions for that office. She will therefore be unsurprised to hear that we on these Benches are not able to support her on that proposal, but I hope we might be able to find more common ground in our debates on later groups. I do not propose to detain the Committee with a long response to the arguments that were made eloquently by the noble Baronesses, Lady Kramer and Lady Featherstone, and the noble Lord, Lord Wills. Of course, we agree that accountability is extremely important: if a serious concern is raised within a department, from whatever level of official or whatever part of the department, officials and Ministers ought to take that very seriously. Well-run departments should have mechanisms in place to assess their own performance and to put a stop to systemic failures and prevent future wrongdoing within their organisations. That appears to be self-evident. I hope that the Minister, when responding, will be able to set out some of the processes that exist within government to ensure that bad practice is brought to the attention of senior officials and Ministers in the proper way and, as we have heard, that timely, effective action is taken. That is, as I say, self-evident; what is not self-evident to me is the assertion that an entirely new whistleblowing process or office—with a panoply of powers and a profusion of minor potentates—is, in fact, needed to facilitate effective reporting of bad practice. If this matter is to go further, I would like to hear a little more from those noble Lords proposing these amendments on the projected cost of some of these proposals, and on the impact a new whistleblowing process would have on the ability of departments to resolve issues quickly when they arise, rather than finding themselves locked into formal investigatory processes which may delay quick and effective action. I would also suggest that the variety of approaches proposed by the amendments might indicate that there is a lack of clarity on the right approach; sometimes, a proliferation of proposed remedies indicates the absence of a clear diagnosis in the first place. With that, I look forward to the Minister’s response.
Captain of the King’s Bodyguard of the Yeomen of the Guard and Deputy Chief Whip (Baroness Anderson of Stoke-on-Trent) (Lab)
My Lords, this has been an important and somewhat constrained debate—I thought we would be discussing it for a little longer—as well as being a very informative debate. I thank the noble Baroness, Lady Kramer, with whom I have worked on these issues very constructively in previous pieces of legislation. She knows of my personal commitment; she also gave me homework on previous pieces of legislation, which I duly did, with an appropriate level of engagement. That is why I am so pleased to be able to have volunteered—or to have been voluntold by my noble friend the Minister—for this grouping. Before I move on to the substance, I want to touch on one of the most important issues raised: the death of Simon Andriesz, which was raised by the noble Baroness. I cannot comment on the details, nor would she expect me to do so, but I share the whole House’s deep concerns about what happened and the issues that his case raises, and I am sure that the FCA will be undertaking the appropriate investigations. Whistleblowers play an important role in exposing wrongdoing, protecting public funds and, most importantly, protecting the general public. It is essential that public officials can raise concerns without fear of adverse treatment. I have listened carefully to the debate, especially the contributions of my noble friend Lord Wills and the noble Baroness, Lady Featherstone. The noble Baroness talks about these issues with a level of personal experience. Some Members of your Lordships’ House may not be aware that her sister raised significant issues, which, had they been listened to, would have saved huge pain and distress for many others. That is indicative of the reason why we now need this duty of candour and why the processes need to be in place. Turning to the substance of this group of amendments, although the Government’s view is that existing legal protections already provide safeguards for officials who speak up about alleged wrongdoing under the duty of candour, I genuinely want to engage further with noble Lords on these issues as the Bill progresses to see what, where and how we can do, given the consultation. I want to be clear that, under the Bill, the public authorities are required to make and publish a code of ethical conduct that must contain information about the organisation’s whistleblowing policies. Even where a disclosure does not meet the statutory test for whistleblowing protection, employees may still be able to challenge a dismissal where the disclosure was made in accordance with a legal duty, such as the duty of candour and assistance. Employers, and in turn the employment tribunal—the noble Baroness was absolutely right to raise the cost, but I urge that every employee should be a member of a trade union should they find themselves in such a position—are able to take these factors into account when assessing the fairness of any dismissal. Public authorities will ensure that employees, via any code of ethical conduct, are able to find out about their rights. However, I understand the concerns that have been raised, which is why I am pleased that the Government have today launched an open consultation on the operation of the whistleblowing framework. I encourage all Members of your Lordships’ House to make their own submissions. I want to reassure your Lordships that there is no predetermined decision. Although I appreciate the concerns raised about the last consultation by the noble Baroness, Lady Kramer, it was not done by this Government, and she is more than aware that we might have slightly different views about what we will be seeking to explore. As part of the consultation, we are seeking views on options to encourage or require employers to have appropriate arrangements for handling whistleblowing disclosures. One option under consideration is a legal requirement for larger private sector and all public sector employers to have effective whistleblowing procedures in place. This could include a requirement to carry out appropriate follow-up on disclosures, such as making an initial assessment of the disclosure, seeking further information where necessary and considering whether there is evidence that wrongdoing may have occurred. However, to be clear, we are not proposing to require employers to formally investigate every disclosure. Instead, employers would be expected to take reasonable and proportionate steps to assess whether a disclosure has merit and decide what action, if any, is appropriate. The Government are also seeking views on whether an independent whistleblowing body should be established. I appreciate concerns about the time required to move from consultation to reform. However, whistleblowing is an issue that affects all sectors of the economy and concerns relating to protected disclosures are not unique to the public sector. It is therefore important that we take account of the views of a wide range of stakeholders before deciding whether legislative change is needed and what it would look like. My personal engagement on this issue has made it clear that there is not currently one agreed way forward. In fact, every stakeholder that I met had a different, considered opinion on what an office, compensation and protections could and should look like. So, in my opinion, a consultation is required to make sure we can get to a point where it is workable for the majority. It would therefore be premature to legislate on these matters before the evidence has been gathered and considered and the Government have reached conclusions on the future of the whistleblowing framework. I move on to Amendment 108, which would require a review to report to Parliament within 12 months of Royal Assent on whether the Act’s disclosure provisions are protecting those who rely on them, including whether an independent body should be established. We agree that it is right to review whether the Bill’s measures are working as intended. We are exploring the best way to achieve that and what should be covered as part of it. I look forward to those ongoing discussions with the noble Baroness. I also remind Peers of the Bill’s scope. Any changes in the Bill would apply only to the public sector, creating discrepancies in the whistleblowing framework with other sectors, which is far from ideal in this area. Any change should be a change for all.
Baroness Brinton (LD)
Later in the Bill we will come to the role of subcontractors who are caught by whistleblowing. Is the Minister saying that subcontractors would not be caught by any whistleblowing arrangements?
Baroness Anderson of Stoke-on-Trent (Lab)
The Minister has kindly volunteered to answer that when we get to that section of debate. I will be sitting here, so I will make sure he does. However, I am happy to meet with any Member of your Lordships’ House to discuss how we can use the code of ethical conduct to make existing protections clearer. I ask that those interested feed into the government consultation. I therefore ask the noble Baroness to withdraw her amendment.
Baroness Kramer (LD)
My Lords, I know that I should be brief so let me simply say how much I appreciate all the speeches that have been made. We must find areas where we can make real progress to tackle the two issues of investigation and protection against retaliation and detriment. I hope that the whistleblowing consultation that is taking place does not become an excuse not to do that within the context of the Bill. I suspect that those of us who are engaged with this will, by Report, have come to some common ground. I hope that the Government will be part of finding that common ground, because that will be the most effective way to move forward. I certainly have some detailed answers to some of the issues that were raised. I believe some are in error—for example, on the cost of an office of the whistleblower. I have just got a note from the United States to say that this year alone whistleblowing cases led to a sending to the Treasury of $5.3 billion. That is because of the additional cases that were prosecuted. There are many issues like that that we could discuss. It is important, however, that we make progress. I thank the Government for being willing to listen; I hope that we can make some real progress and not simply depend on having an outcome from a consultation. As it reads, I find the consultation very disappointing as it is very narrow, but if the Minister is correct that we can open up that consultation to a much broader discussion then that would be exceedingly helpful. I encourage everyone to provide a much broader response; if they simply answer the questions we will see nothing other than a small movement of commas and full stops. I beg leave to withdraw the amendment.
Amendment 2 withdrawn.
Amendment 3
Moved by
3: Clause 2, page 2, line 24, leave out “or may be” Member’s explanatory statement This probing amendment seeks to clarify the definition “may be relevant” in practice.
Lord Wolfson of Tredegar (Con)
My Lords, in moving Amendment 3, which is in my name and that of my noble and learned friend Lord Keen of Elie, I will also speak to our Amendments 4, 17 and 26. These are all probing amendments to query the definitions of relevance and recklessness, and to clarify how the duty of candour will apply to public authorities and officials in practice. We will return to some of our concerns on the practical application of the duty of candour when we debate Amendment 34, which is now in a later group. I start with Amendments 3 and 17, which I will take together because they raise the same point. They would remove the words “or may be” before the word “relevant” from Clause 2(3)(a) and from new Section 10A proposed in Schedule 1 to be inserted into the Inquiries into Fatal Accidents and Sudden Deaths etc. (Scotland) Act 2016. The arguments for both amendments are exactly the same. The short point is this: as drafted, Clause 2(3)(a) requires a public authority or official to “notify the person leading an inquiry or investigation where … their acts are or may be relevant”. Their acts either have to be relevant or “may be relevant”. When it comes to information, however, in Clause 2(3)(b), they have to notify the inquiry or investigation only of information that “is relevant”—not “may be relevant” but “is relevant”. That is obviously a distinction that has been considered. The distinction would indicate that the Government accept that the authority or official is capable of making a judgment on what information is relevant. However, in the case of acts, they require that same authority or official to make a notification where “their acts are or may be relevant”.
This probing amendment simply seeks to clarify the purpose and impact of that obviously deliberate distinction. What are the Government’s reasons for including the broader test of relevance in the case of acts but the narrower test of relevance in the case of information? Is it to prevent an inquiry or investigation being overloaded with irrelevant notifications in respect of information? If that is the case, what assessment have the Government made of the risk that an inquiry would be overloaded with irrelevant notifications in respect of acts, where the broader wording is used?
Equally, is it not the case that an official trying to undertake their duties under Clause 2(3) would be incentivised to notify an inquiry when their acts are almost certainly not, but may be, relevant to that inquiry? The words “may be relevant” are a very low threshold of connection. They are lower than “likely”, “probably” and other words which we could all think about. Do the Government really want authorities and officials whose acts are almost certainly not relevant to none the less notify them?
What is the working definition of “may be relevant” that public authorities and officials will be given to enable them to navigate their statutory duty under Clause 2(3)(a)? It would be helpful for noble Lords to see a draft of the guidance before we proceed to Report. Perhaps the Minister would be able to assure the Committee that that guidance will be given to us before Report.
I turn to the broader question: how would the Government expect an authority or official to navigate this duty without a clear definition of “relevant”? There is a risk of people either making notifications unnecessarily or, on the other side, of committing an offence by not reporting at all. The Explanatory Notes provide the helpful clarification that this clause
“does not oblige authorities or individuals to actively monitor all investigations or inquiries and search for information on a speculative basis to assess its relevance”,
but what defence would be available to a public authority that or official who fails to notify an inquiry of relevant acts or information if they were not aware of it? I think the Bill actually contains an answer to that question but, for the benefit of those who will have to navigate this new duty and should not be required to parse the Bill in order to work out what their duties are, perhaps the Minister will be able to answer it for us today. For this Bill to have the impact we all would want it to have if it becomes law, we do not want to disincentivise good and honest people from choosing to devote themselves to public service. Therefore, we need to make sure there is no ambiguity. I look to the Minister to remove that ambiguity today.
I turn to Amendment 4 on the trigger for the duty of candour. This is another probing amendment. The short point here is: at what point does the duty of candour kick in? At what point is that duty triggered as a matter of law? The reason why this is relevant is that Clause 8 is clear that the duty of candour and assistance applies in respect of both an inquiry that starts after the Bill is passed and has come into force, and an inquiry that is ongoing at that time. This amendment therefore probes what the Government mean by “started”. The suggestion in the amendment is that the duty should be triggered by the formal establishment of an inquiry. By making that suggestion, I want to give the Minister the opportunity to confirm whether that is his intention in the Bill, or whether the Government have an alternative point of time in mind—and, if so, what that is. I will listen carefully to the Minister’s response.
Finally, I turn to the definition of “recklessness” in Amendment 26. Clause 5(1)(b)(ii) applies the test of recklessness to the offence of failing to comply with the duty of candour. You can therefore be guilty of that offence if you intend that your failure will impede the injury or, in sub-paragraph (ii), if you are reckless as to whether it will do so. We do not challenge the addition of recklessness in principle. The amendment probes whether the Government feel it is more important to rely on the common law definition of recklessness, or whether we should make the Bill clearer by including a statutory definition of recklessness.
Although it is tempting, now is probably not the time to embark on a soliloquy on the law of recklessness. I see some lawyers are disappointed already—they were hoping for the words “Cunningham” and “Caldwell” to be mentioned. Caldwell is in my notes, but I threw in Cunningham for their edification and delight. I have sought to place on the face of the Bill a definition of recklessness as set out in R v G—a 2003 case from this House in its former appellate capacity. The objective test of whether a reasonable person ought to be aware of a risk was established—again by this House in its appellant capacity—in the earlier case of Caldwell in 1982. That was ultimately overturned—to the consternation of some and the delight of many law students—by this House in 2003 in R v G, which introduced a more subjective test.
That test, in essence, has two limbs: the first is that the prosecution has to establish that the defendant foresaw the relevant risk, not merely that a reasonable person would have foreseen it; the second is that the assessment of whether taking that risk was unreasonable is made by reference to all the circumstances known to the defendant. That is the twin test the amendment suggests should be added here. Do the Government agree that that is the appropriate test of recklessness, or do they propose to adopt the common law position, which may change from time to time? I am interested in the reasons for the Government’s decision. For those reasons, I beg to move.
Baroness Coffey (Con)
My Lords, I rise to support the amendments in my noble friends’ names, particularly Amendments 3 and 26. They are useful. I am conscious that this law, if passed, will apply to the Covid inquiry, because that is not yet complete. What is not clear—we will come to this in later groups—is whether the modules that have already been published will be out of scope if, as a consequence, some of this might get involved. I mentioned “may be relevant” because, during an inquiry process, often you will put in a lot of information—although not all the information—and the inquiry will determine what gets published. I am not aware that you are allowed to publish anything until the inquiry decides to publish. As a consequence, there may be elements that you feel were missed out, for whatever reason, by the people running the inquiry, and which you think are relevant to why, for example, a departmental body acted in particular way. In supporting Amendment 3, I just wanted to get that clarity. I also agree entirely about the definition of “reckless”. I think it is important it goes on the face of the Bill. Not that I believe all judges are activists when it comes to widening the scope of legislation, but it certainly happens a lot. Getting into the ins and outs of what may be considered relevant or reckless could well become a very wide-ranging beast, depending on the case of the day, which then has knock-on implications. It is better to support what my noble friend has tabled to make sure that, when we are considering this in terms of the inquiries and investigations, it is much more precise.
Baroness Hamwee (LD)
My Lords, I congratulate the noble Lord on raising a laugh on these rather niche issues. He used the term “disincentivise”, and I think that is the most important thing. To me, taking out the words “may be” would be a disincentive. If they are omitted, the duty would be watered down. It should be up to the person leading the inquiry to determine the relevance. It did make me wonder why “may be” is not also in new Section 23A of the 2005 Act, and I would have preferred to see it in Clause 2(3)(b) as well, to which the noble Lord has directed us. But any changes should support the provision of information and not have individuals thinking, “I do not suppose it really matters, and I will not provide it”.
Lord Lemos (Lab)
My Lords, I thank the noble Lord, Lord Wolfson, and others for their contributions. I also thank the noble Lord and the noble and learned Lord, Lord Keen, for the discussions we have had about these points. I think I am sure of what the noble Lords are driving at in this collection of issues, and I will deal with them one by one in in order to set out the Government’s position clearly and the legal advice we have had, for example, on the question of recklessness. I will come to that in a moment if I may. But before I respond to each amendment in turn, I want to pick up the point that the noble and learned Lord, Lord Wolfson, made about public servants and disincentivising. I do not want anything the Government say about this Bill to suggest in any way that most public servants are dishonest or seek to cover things up or lie in inquiries. Public servants are honourable people in the very large measure, and I applaud and pay tribute to their work. I was challenged at a Cross-Bench meeting to say that. I promised I would and now I have. Let me turn specifically to the amendments, which I think I have a good answer to. Amendment 3 would remove from Clause 2(3) the requirement for an authority or official to notify an inquiry or investigation if their acts “may be” relevant. The Bill uses “are or may be relevant” at this point, rather than just “are relevant”, because at that stage of the inquiry or investigation, the authority or official may not have complete certainty about what is relevant or not. So that is a proactive obligation. The authority or individual will not have received a direction or request explaining what the inquiry or investigation requires of them, so necessarily, at that point, they may have to act on an assumption of what “may be relevant”. The noble and learned Lord, Lord Wolfson, pointed out that the obligation in Clause 2(3) is different, as we use “relevant” and not “may be relevant”. The reason is that it comes at a different stage in the process, when it is possible to be clearer and more specific about what precisely the information requested is. So that is the reason for the difference, but I am very happy to discuss it further if he wants to do that.
Amendment 4 seeks to provide clarity on when the duties apply. We agree with the noble and learned Lord’s intention of providing clarity, which is behind all these amendments. However, different types of inquiry and investigation can begin in different ways. It is the Government’s view that using the term “established”, as suggested, would not provide any more clarity than the existing wording of the Bill.
Amendment 17 from the noble and learned Lord would make the position for fatal accident inquiries consistent with other types of investigation in the Bill. It would achieve this by requiring the procurator fiscal to give a compliance direction to a public authority or official if they are satisfied that the person’s acts are relevant. The Government’s view is that the noble and learned Lord has raised a valid point, which we are considering and on which I will come back on Report with my officials’ advice.
Finally, Amendment 26 seeks to define “reckless” for the offence of breaching the duty of candour and assistance. I am smiling because I was looking forward to the tutorial—I expect that I shall have to have it in private. The definition of “reckless” in the context of criminal offences is defined by case law, which is long established. I slightly demur from the characterisation of judicial activism set out by the noble Baroness, Lady Coffey, and I suspect that I have some allies in that regard. Our legal advice is that it is not necessary to define “reckless” here. To do so would be very different from the approach usually taken in legislation and might give rise to some confusion. However, I am getting rather intrigued, and I would be very happy to discuss it further.
For the reasons that I have mentioned, we consider the noble and learned Lord’s Amendments 3, 4 and 26 to be unnecessary, but I hope that he has noted the commitment that I have made to consider the proposal of Amendment 26. I am happy to discuss the other points, but at this stage I invite him to withdraw his amendment.
Lord Wolfson of Tredegar (Con)
My Lords, I shall be brief. I thank the Minister for his considered and certainly not reckless response to these various amendments—and also for promoting me. This morning when I appeared in court I was learned, but when I come here in the afternoon I am unlearned by convention—as opposed to my noble and learned friend Lord Keen, who is learned in both the High Court and the High Court of Parliament. I am very grateful for the Minister’s response. Of course, we will consider this further, and we will obviously engage with him further. This also gives me an opportunity to thank him for the engagement that he has given me and others so far. It seems to me that Clause 2(3)(a) and (b) both apply at the same time, so I am not sure why there is the distinction between “are or may be” and “is”. I respectfully agree with the reasoning of the noble Baroness, Lady Hamwee, if not her conclusion, that they really ought to be the same: they should both be either “is” or “are”, or “may be”. It is the dissonance between the two that is odd. On the points on recklessness and the tutorial that never came, noble Lords who come back for Report may have the tutorial at that stage, but it may be that, because of further discussions with the Minister, they do not. In the meantime, I seek the Committee’s leave to withdraw these amendments.
Amendment 3 withdrawn
Amendment 4 not moved.
Amendment 5
Moved by
5: Clause 2, page 2, line 35, at end insert— “(ca) where the authority or official has relevant records, including digital messages and communication, retain and disclose those records;”Member's explanatory statement This probing amendment would add the disclosure of digital messages and communication to the assistance that a public authority or official must provide to an inquiry or investigation.
Baroness Brinton (LD)
My Lords, I have Amendment 5 in this group, also signed by my noble friend Lady Hamwee. It is a probing amendment seeking to ensure that all relevant records, including digital messages and communications, are retained and disclosed to an inquiry or investigation. Due to some issues during Covid relating to investigations about ministerial communications using WhatsApp and other social media, it was clear that there was a gap in perception about the collection of digital records. That is why I have specifically listed them in my amendment; I am sure that more and more of us are now using social media for more formal discussions than was ever anticipated because of the speed of response. But it is worse than just having to think about what we do with digital messages. It took the Hillsborough families 20 years and the Hillsborough Independent Panel’s work for them to get full disclosure. One of the groups said: “An awful load had been redacted and the police were told not to put anything in their notebooks. It took us 20 odd years to get disclosure, it doesn’t matter what’s in it, warts, and all, give us the disclosure, otherwise you don’t know what you’re up against. [There are] reams of evidence I want to look at but it’s up to the chair” of the independent panel and “[I] think it should be mandatory for us to see all the evidence we choose”. It is clear that data must be kept and recorded. In this day and age, that goes beyond notebooks and must include digital evidence too. More importantly, this will strengthen transparency and ensure that all inquiries and investigations can do their job and thereby strengthen accountability. Amendment 29 in the name of the noble Lord, Lord Wills, which I have signed, is also a probing amendment, to elucidate whether the intention is that information record-keeping be completed as standard by public authorities in accordance with the Public Records Act 1958. I have signed it because I think it is helpful for the Minister to be specific. I refer back to my probing amendments on whether digital records in all their forms—current, a few past and future—would also be included in this. Amendment 10, also laid by the noble Lord, Lord Wills, would ensure that unused material is protected in an annex, which the chair of the inquiry can access as required if it is relevant. This, too, is helpful and might have assisted some of the Hillsborough families in the example that I gave earlier. All the amendments in this group seek to protect information, as information keeping becomes more and more complex. We know that in some of the inquiries from years ago, retention of traditional data was inconsistent—and worse, the rules about retaining data were unclear enough for people to behave badly. None of this is new in the decades since investigation inquiries started into the infected blood scandal. In the Lord Archer of Sandwell inquiry of 2007 to 2009, a whole chapter of his report was dedicated to the missing evidence and documents. Just one example suffices. The ministerial papers of Lord Owen had been destroyed, probably not with his knowledge. The report said: “We have been unable to ascertain who carried out the destruction of the papers, and who gave the instructions. But the conclusion appears inescapable that some official made a decision which he or she had no authority to make, or that someone was guilty of a serious error of judgement”. Then Sir Brian Langstaff’s Infected Blood Inquiry, which reported in 2024, found that in 2019, after the Lord Archer report had been published, around 450 files had been taken from the archives by staff from the Department of Health and Social Care and not returned, sparking concerns among campaigners that the department was attempting a cover-up. There are also the nuclear veterans’ investigations, which have been hampered by the disappearance of much of the medical data of the servicemen who were present at the UK atomic tests. The MoD consistently denied it had the data, but in August of this year, the Mirror revealed that the files had been held at a secret MoD laboratory. The nuclear tests happened in the 1950s and such secrecy hampered conclusions on the damages to servicemen, many of whom are dying. The fact that this practice has been repeated ever since by public officials within the Civil Service, the NHS and other bodies makes it clear that we have to be specific about data retention. This Bill is the place to do that. I look forward to the Minister’s response. The Bill provides the perfect opportunity to ensure that, in future, as part of the duty of candour, there is a responsibility to keep data appropriately and honestly to facilitate any future investigation or inquiry. I beg to move.
Lord Wills (Lab)
My Lords, I agree with everything the noble Baroness, Lady Brinton, has just said about the amendments in this group. I will briefly speak to the two that are in my name. Amendment 10, as the noble Baroness has already said, aims to encourage transparency and efficiency in the proceedings covered by this Bill. In doing so, it seeks to increase trust in those proceedings among those most directly affected. This Bill is designed to tackle failure by the state, yet it would hardly be surprising if those most directly affected by such failures were suspicious of how far the state was going to meet their concerns. In the days following the tragedy at Grenfell Tower, over 150,000 people signed a petition demanding that the investigation “must be FULLY TRANSPARENT and allow the MEANINGFUL PARTICIPATION of the affected residents, their families, and the surrounding community”. On its own, that revealed the depth of public mistrust of the official processes that deal with the aftermath of such public disasters. This Bill is before your Lordships’ House because, over and over again, an original failure by the state has been compounded by failures to secure outcomes that those directly affected felt met their concerns. In these circumstances, if the Bill is to deliver on its admirable intentions, it must, among other things, do everything possible to secure the confidence of those directly affected. Among other things, they must know exactly what evidence exists and be able to assess for themselves what is relevant and what is not. Knowing there was an obligation to produce an annexe of materials related to their complaint would provide some reassurance that the records they may rely on had been identified and recorded. In the case of the Hillsborough disaster, this process was, in practice, completed by the Hillsborough Independent Panel, and it proved essential for the effective preparation for the subsequent inquest. It gave, as we have heard, the bereaved a chance to see—in some instances, for the first time—key information about their loved ones. However, it also saved time and money, as the action taken in the wake of the Hillsborough Independent Panel’s report progressed. Therefore, if a straightforward administrative task, such as that set out in this amendment, is introduced early in the process, it will help prevent delay and the subsequent anguish of those most directly affected. That is why it is supported by Hillsborough families, and I do hope my noble friend the Minister will be able to accept it. Amendment 29 is straightforward; it seeks, as we have heard, to put in the Bill something which it appears the Government have already considered. It seems only logical that, if there are conditions within this legislation for the provision of records to an inquiry, there should also be an obligation for these to be created or preserved as the case may be. It is a probing amendment because it may be that the intention is that this should be done as standard, in accordance with the Public Records Act 1958. In this case, and in order to create confidence in the Bill among all those who have suffered from state failures in the past, it should be made explicit in the legislation for the avoidance of any doubts. I hope my noble friend the Minister can reassure the Committee on this point.
Lord Alton of Liverpool (CB)
My Lords, I support the amendments that have just been spoken to and moved by the noble Baroness, Lady Brinton, and spoken to so ably by the noble Lord, Lord Wills. I am not going to make a long speech, but nuclear test victims have been mentioned. Back in the 1980s—literally in the middle of the night in 1984 and in 1985—in the House of Commons, I raised the case of the 20,000 British servicemen who had been deliberately put in harm’s way. Again and again, information that should have been disclosed was withheld. I therefore agree entirely that, where records are available, they must be made available to people who feel they have been badly treated by the state. I will refer also to the case of Graham Gaskin, who was in social care in Liverpool. I have raised his case on a number of occasions, including in an Adjournment debate I tabled in another place. He ended up having to steal his own records from Liverpool social services and go all the way to the European courts to finally get the law changed so that people who have been in the care of social services can subsequently have their records provided for them. It must never be necessary for people to go to those lengths.
Finally, I will refer to Hillsborough. During the Hillsborough inquiry, I was appalled to learn many things that had been concealed. One of the most shocking was about the police officers who had been told to change the accounts in their own notebooks about the things that they had seen. I know that the Minister shares my indignation about what happened to the families at that time. It should be mandatory to see evidence of that kind, as the noble Baroness, Lady Brinton, said. I found it extraordinary that an inquiry was needed to find out about correspondence that had passed between the independent police investigative commissioner and the police force in South Yorkshire, and that Members of Parliament could be referred to in derogatory ways for interfering when trying to establish the cause of what had occurred. That should never happen. To conceal that, and for that not to be made available until these matters finally come out in a public inquiry, should not be the order of the day.
Even if the Minister feels that he cannot incorporate these amendments in Committee for technical reasons, I hope that he will stay engaged with the noble Lord, Lord Wills, the noble Baroness, Lady Brinton, and others who care about these questions, so that we can get this firmly put right in the Bill.
Lord Keen of Elie (Con)
My Lords, the noble Baroness, Lady Brinton, and the noble Lord, Lord Wills, set out their arguments with great clarity. I do not wish to detain the Committee with lengthy observations from these Benches, but I will reflect on the noble Lord’s proposal for the head of a public authority to be bound by a central record-keeping duty. When we come to the debate on my Amendment 34, we on these Benches intend to consider the question of support provided to officials in fulfilling their obligations under the Bill. In the current drafting, the duty of candour is a disparate duty that lands both on public authorities and on public officials. Simply imposing a duty of candour on an official, without providing appropriate practical and legal support to such officials, risks putting public officials in the position of having to seek costly legal advice for themselves. I am certainly interested by the noble Lord’s proposal of a central role for the head of a public authority, which I hope we may discuss in some form between now and Report.
Lord Lemos (Lab)
My Lords, the question addressed by these amendments is important and—as the noble Lord, Lord Alton, said—one that I have been very bothered about. The importance of record-keeping and the treatment of information is at the heart of the duty of candour and many other provisions. Let me try to address the underlying concerns as well as what the provisions of the Bill are. I will try to reassure noble Lords that some of their concerns are dealt with in the Bill. I will take them one at a time. First, Amendment 29, tabled by my noble friend Lord Wills, would require the head of an authority to ensure the proper recording and keeping of information on matters that may be the subject of an inquiry or investigation, including a process to ensure that officials provide information not already held by the authority. This is the amendment to which the noble and learned Lord, Lord Keen, referred. There is already statutory guidance, setting out what and how information should be retained, in the Section 46 code of practice on information and records management, published in compliance with the Freedom of Information Act. Paragraph 1.2.4 states: “Authorities should manage their information so as to create and maintain a record of their activities which, in turn, provides evidence of their activities”. Authorities should also keep information for as long as it has value—for example, if there is a public inquiry, a police investigation or legal action. Other legislation is also relevant in considering these matters, such as the Data Protection Act 2000 and the Public Records Act, which my noble friend Lord Wills referred to. Some authorities will have their own codes of practice that apply to the type of information they hold, in line with their own legislative framework, regulatory requirements and other requirements, such as health authorities and the police. Organisations are very disparate in this sense. Amendment 10 would enable the chair of a statutory inquiry to require a person to list information not provided to the inquiry, with reasons why the information was not provided, in a document which is available to the chair. The Bill already provides for this, in that under Clause 2(4)(e), an authority or official can be required to provide further information or clarification as required by the inquiry or investigation, so far as is reasonably practicable. An inquiry or investigation could therefore direct an authority or official to provide clarification as to why they have or have not supplied particular information. That responds to some of the concerns of my noble friend Lord Wills. I thank the noble Baroness, Lady Brinton, for her Amendments 38 and 5, which seek to ensure that relevant records be disclosed to an inquiry or investigation—including, crucially, digital messages—and that the code of ethical conduct requirement includes the expectation for public officials and authorities to retain and disclose digital records where necessary. We are confident that the Bill already ensures that documents are accessible and protects against the destruction of documents. As mentioned previously in my response to my noble friend Lord Wills’ amendments, Clause 2(4)(a) requires authorities and officials to provide information likely to be relevant to an inquiry or investigation if requested. This applies irrespective of the format or communication channels in which relevant information is held and may therefore include digital communications—the specific concern of the noble Baroness. The Government recognise that the increasing use of digital communications raises wider questions about how information should be managed and retained. These issues obviously extend beyond the specific duties created by the Bill and, in relation to government, are currently being considered by the independent review of non-corporate communication channels, led by Sir Anthony Finkelstein. The Government do not think it would be advisable to prescribe detailed requirements for the retention of particular forms of digital communication while that review is under way. The Government will consider the review’s findings, including any implications for relevant law, policy, guidance and codes, when the review reports. The individual in charge of an authority must take reasonable steps to secure the authority’s compliance with the duty, including ensuring documents are accessible. In addition—and we will return to this matter in debates on other groups in Committee—in appropriate circumstances, where the other elements of the offence are met, a failure to disclose digital messages could also be caught by the new “seriously improper acts” limb of the misconduct in public office offence. Under this, a public officeholder commits an offence if they use their position with the intent of obtaining a benefit or causing another to suffer a detriment and, when doing so, know or ought to know that their action is seriously improper. A benefit could include seeking to protect themselves or their organisation from reputational harm. In some circumstances, other offences, such as contempt of court or perverting the course of justice, could also apply where someone is required to provide information to court or during an investigation. I hope I have reassured your Lordships that the Government take very seriously the underlying issues that the noble Baroness and my noble friend Lord Wills raised. I hope the reassurance I have given in relation to the Bill and other provisions will meet the approval of my noble friend and the noble Baroness. I therefore ask the noble Baroness to withdraw her amendment.
Baroness Brinton (LD)
My Lords, I thank the noble Lords, Lord Wills and Lord Alton, and the noble and learned Lord, Lord Keen of Elie, for their contributions. The Minister talked about the subsections in Clause 2 on the duty of candour and assistance, but they refer to information more generally as opposed to formal records. The object of these amendments concerns formal records, so I wonder if, between Committee and Report, we might have a meeting. I ask the Minister to think again about the principle of what “records” means in terms of justice, as opposed to a very senior official being asked if he or she has any information on a particular topic. My concern is that we need to be specific. In the examples I gave, it is quite possible that if the police notes had been kept, the official would have been able to say, “Oh yes, I have seen that there is a file that has the police notebooks in it.” If you just ask if there is information, however, you will not get that response at all.
Lord Lemos (Lab)
I am happy to discuss that further with the noble Baroness.
Baroness Brinton (LD)
Perhaps the others who have spoken on this group could attend that meeting as well. In that case, pending that discussion and the possibility of bringing something back on Report, I beg leave to withdraw my amendment.
Amendment 5 withdrawn.
Amendment 6 not moved.
Amendment 6A
Moved by
6A: Clause 2, page 2, line 39, at end insert— “(4A) The duties in subsections (3) and (4) do not apply when an inquiry relates to an issue where more than 100 individuals have been affected by that issue.”Member's explanatory statement This probing amendment seeks to set out a limit for the size of inquiry the requirement for notification applies to, where it would be impractical for all witnesses to come forward.
Lord Wolfson of Tredegar (Con)
My Lords, Amendment 6A is in the name of my noble and learned friend Lord Keen of Elie and myself. I will also speak to Amendment 19 in this group. There are a number of amendments in this group, and Amendment 6A happens to be the first, which is why I am standing up first. In the interests of time, I hope the Committee will understand if, at least in these remarks, I will focus just on the amendments in my name and on the Official Opposition’s amendment. I should say that we do not oppose the Government’s amendments in this group. Amendment 6A is a switch-off mechanism that seeks to limit the size of an inquiry where the requirement for notification and assistance applies, and it sets that limit at an inquiry where more than 100 individuals are involved. This is explicitly a probing amendment to explore the issues that might arise from large volumes of irrelevant or barely relevant and probably unnecessary notifications and information being provided to investigations and inquiries which have a very broad scope. Therefore, we would be interested in hearing from the Minister the Government’s assessment of the impact the broad duty of candour and assistance would have on the size of investigations and inquiries, and what effect, in turn, that would have on the speed at which these inquiries come to a conclusion. Many of us sometimes raise eyebrows at the speed, or lack of it, at which some inquiries come or do not come to conclusions. The impact assessment provided by the Government identifies the possible benefit of more inquiries taking place on a non-statutory basis and the savings that would result from inquiries getting it right the first time. However, it is silent on the risk that more public authorities and officials would come forward, especially where statutory inquiries have very broad terms of reference. We would therefore be interested to learn whether the Government have made an assessment of that risk. If so, could we have an updated risk assessment before the scrutiny of the Bill in your Lordships’ House is completed? The other amendment in our name is Amendment 19. This would require clear guidance on how the duty of candour—which would, of course, become a statutory obligation—would interact with duties in existing legislation. This is not a suggestion for the duty of candour to overrule existing legislation. The Bill is clear on that point in Clause 3(7)(a). However, as I mentioned at Second Reading, there is some complexity here. For example, public bodies have existing duties under the Freedom of Information Act 2000, which includes both requirements to disclose information and exemptions from disclosure. Data protection law, for example, restricts disclosure of personal information. Legal professional privilege can also prevent the disclosure of information.
In that landscape of potentially conflicting and overlapping legal responsibilities, we suggest that Clause 3(7)(a) might not be enough. The purpose of Amendment 19 is to invite Ministers to look at it again in detail and publish guidance for those public bodies that will be subject to the duty of candour. The amendment would require this within a month of the Bill becoming law, but if the guidance could be presented before that point then that would be all the better. This speaks again to the need for support from departments or some other body to assist public authorities and officials in navigating what might be quite complex duties under the Bill. Without that support, people either will not meet their statutory duties—meaning that the information will not be provided—or might commit a criminal offence. This is a somewhat technical piece of legislation. Many of the people to whom this duty applies will not have any legal experience and there is no reason why they should. Therefore, clear guidance is needed all the more.
I look forward to hearing debate on these and other amendments in this group. I beg to move.
Baroness Brinton (LD)
My Lords, I have Amendments 13 and 63 in this group. I have also signed Amendment 68 in the name of my noble friend Lord Marks, who cannot be in his place today. Amendment 13 seeks a statutory duty of candour and assistance that extends automatically to independent panels and reviews established by Ministers of the Crown and local authorities. The thinking behind this is that the borderline between some of these inquiries and bigger judge-led inquiries can be quite difficult to ascertain. Some have started at a lower level without a judge—I must be careful with my words; I do not mean “lower” in terms of competence but at a local level—but have led to an unsatisfactory result and ended up as a formal, judge-led inquiry decades later, having cost millions to the country and, more importantly, left the victims feeling that they have not been listened to and unable to access compensation. It is important that broadly the same rules for a duty of candour and assistance are included for those inquiries as well. My Amendment 63 would introduce a duty for NHS trusts and foundation trusts in England to adopt codes of conduct for mandatory reporting of concerns in relation to systemic medical malpractice or serious wrongdoings in relation to patient safety in a trust. I spoke earlier about some of the problems that the NHS has faced since it introduced a duty of candour in clinical environments in 2016. The CQC is very clear that most of the trusts where there are major failings, including tragedies that have led to inquiries, have been those where there is a poor culture. The CQC can give many examples of high-performing trusts elsewhere where there is substantial trust in what is going on. This means that there is a favourable environment for whistleblowers and for reporting, even if it is not mandatory. What has shocked the nation over recent years is the number of NHS scandals that keep emerging, which points to something very serious going on. I have already spoken about infected blood. That started in the 1970s and it still has not concluded. There are some women who still do not know whether their blood was infected because of a transfusion in the 1980s or 1990s, as GPs have only just been asked to check medical records to see whether they have female patients who may have had a transfusion. Unfortunately, I know from my own experience that my delightful hospital has destroyed all pre-2012 records. If that is the case, GPs will not be able to find much of that information out. This is not good practice. However, the real scandal for all of us has been the maternity hospital reports. The Government now say that 14 trusts are being investigated by the inquiry led by the noble Baroness, Lady Amos. They include Shrewsbury, Leeds, Sussex, Somerset, Bradford and East Kent; I could go on. There is not a common theme to any one of these trusts, so something systemic is going wrong in our maternity system. I am very grateful to those people who have carried out investigations and exposed this, but all the points that we raised earlier about whistleblowing are true in maternity as well. Then there is the sodium valproate scandal, which is still waiting for its first investigation. Women with epilepsy were prescribed a drug in pregnancy, even though the medical profession knew that it risked damaging the fetus. As a result, 20,000 children have either developmental or physical disabilities. There has been no investigation into the pharma companies or the doctors. The vaginal mesh scandal, where the wrong sort of mesh was used on women and has left them crippled for years, is the same. The women victims of that inside the NHS are distraught. I have already spoken about the nuclear test veterans who had a lot of their cases held up, partly through the MoD but also partly through poor record-keeping in the NHS. That is why my amendment seeks mandatory reporting of these issues. Otherwise, we will not catch these cases and there will be more scandals. That should not be so. Finally, Amendment 68, tabled by my noble friend Lord Marks, probes the definition of a public authority for Chapters 1 and 3 of Part 2, and Chapter 2 of Part 2. As my noble friend is not here today, perhaps the Minister could write to let him know whether his concerns about things not being clear enough are justified.
Baroness Chakrabarti (Lab)
My Lords, I have Amendments 12 and 14 in this group, on the slightly technical but vital issue of the service of compliance directions and inquiries. Clause 3(4) and Schedule 1 currently provide for compliance directions to make the Clause 2(4) duty of candour and assistance work in practice. Although the current draft has provisions for the service of these directions in non-statutory inquiries, it has none for inquiries under the Inquiries Act 2005. The general provisions for the service of documents under the Inquiries Act have proved deficient in a number of inquiries. Some of those inquiries have alerted the Government so that the Bill can be used to rectify the problems. Indeed, a recent judicial review established key principles on extraterritorial application to prevent former officials avoiding compliance with inquiries simply by going abroad. Amendment 12 and its partner, Amendment 14, would rectify the ongoing problems and provide appropriate provisions in statutory inquiries, as for non-statutory inquiries. These amendments come from the Hillsborough Law Now campaign and are supported by the cross-party expert law reform group Justice. I am particularly grateful to the veteran public inquiry lawyer Peter Weatherby KC for his expert advice in their formulation.
Lord Carlile of Berriew (CB)
My Lords, I will speak to Amendments 18 and 20 standing in my name. I apologise for my unavoidable absence from the Second Reading debate. At the heart of this certainly merited Bill lies a simple but vital principle: public authorities and public officials must tell the whole truth, as soon as possible. The duty of candour is intended to ensure that those given public responsibilities assist the search for truth rather than impede it. However, as presently drafted, there appears in the Bill to be a significant gap or at least an opaque ambiguity. A person who possesses critical information may seek to avoid disclosure by relying on what is called the privilege against self-incrimination. That privilege protects individuals from being compelled to provide evidence that could subsequently be used to secure their own conviction. It is a component of fairness in the criminal justice system, and I make no criticism of that privilege in general terms. However, the privilege was never intended to become a shield behind which public misconduct, institutional failure or the concealment of documents and the truth can be allowed to lurk. These straightforward amendments strike a careful and proportional balance between the competing principles I have just described. The amendments provide, first, that compliance with the duty of candour must occur notwithstanding that the information disclosed may tend to expose the discloser to criminal liability on the face of it. In other words, a person cannot simply refuse to answer because the answer may on its face be personally incriminating. It is all too easy to make an assertion of the privilege against self-incrimination, and it is very difficult, in short order at least, to show that it is incorrect and unreasonable. Secondly and critically, the amendments would provide protection for the individual by rendering the compelled disclosure inadmissible against that person in criminal proceedings that might otherwise ensue. The information must be disclosed but it cannot itself be used as the evidential basis for a prosecution. That means we achieve the disclosure, but we sustain the privilege against self-incrimination. These provisions are neither novel nor radical. Parliament has repeatedly accepted comparable proposals where the public interest in obtaining full and frank disclosure is considered sufficiently important, as surely it must be under this Bill. For example, under Section 2 of the Criminal Justice Act 1987, the director of the Serious Fraud Office may compel a person to answer questions or provide information that is relevant to a fraud investigation. Thus, a witness cannot refuse to answer on the ground that the answer may be self-incriminating. However, under those provisions, the answers obtained under compulsion are generally inadmissible against that person in criminal proceedings—except in limited circumstances such as prosecution for false or misleading statements, which are separate offences. Other examples are to be found in the Financial Services and Markets Act 2000 and in competition and regulatory investigations. I will not bore the Committee by providing examples, but if the Minister requires chapter and verse then I will give them to him with pleasure and in complete detail. So the model proposed in these amendments is not novel, nor should it be controversial. In each of the areas I have referred to, Parliament has concluded that the public interest requires individuals to answer questions, disclose information and tell the truth, while protecting them by preventing the direct use of those compelled answers in criminal proceedings. These amendments, therefore, simply apply that familiar and well-established balance to the statutory duty of candour. I suggest that this issue is particularly important in the context of the Bill. Many of the cases that have inspired calls for a statutory duty of candour have involved years, sometimes decades, of delay before the truth emerges. One recurrent obstacle has been the reluctance of individuals, well advised by their lawyers, to disclose what they knew because of concern about personal consequences, especially prosecution. The public interest in uncovering the truth about deaths, serious injuries, miscarriages of justice, institutional failures and abuses of power demands a stronger mechanism. Indeed, in one case in which I appeared as counsel, which was part of the “Cardiff Three” case—a true debacle in the criminal law—the privilege against self-incrimination formed part of the background, by which police officers who had committed egregious wrongs against the defendant, witnesses and the victim’s family were able to hide behind the privilege against self-incrimination. Families seeking answers should not face a situation in which the very individuals best placed to explain what went wrong can simply choose to remain silent. Equally, those individuals should not be deprived of the fundamental protection against their compelled words being used to convict them.
I suggest that these amendments promote truth without sacrificing justice. If the Bill is to achieve its purpose, the duty of candour must be a genuine duty and not one that can be avoided whenever disclosure becomes uncomfortable or inconvenient. At the same time, Parliament should not require self-incrimination without providing appropriate safeguards. These amendments achieve that balance. They are principled, measured, consistent with established statutory precedents and essential to the effective operation of the duty of candour. I therefore commend them to the Committee.
I also support Amendment 27, which will be spoken to by my noble kinswoman Lady Levitt. However, I know better than to steal her thunder.
Lord Wills (Lab)
My Lords, Amendment 23 in my name seeks to remedy a long-standing gap in the state’s undertakings to provide transparency in what it does. I declare an interest as the unpaid chair of the Campaign for Freedom of Information. Successive Governments, including the one in which I was the Minister responsible for, among other things, freedom of information, failed to remedy the anomaly through which private sector companies carrying out work for the public sector, paid for by taxpayers, are not covered by the provisions of the Freedom of Information Act and thereby avoid the obligations of transparency towards those taxpayers who pay for them. This amendment follows the logic of this Bill and would extend the duty of candour to such private sector companies and increase the transparency which this Bill so fundamentally seeks to secure. I hope my noble friend will seize this opportunity to rectify this anomaly.
Baroness Levitt (Lab)
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.
Baroness Featherstone (LD)
My Lords, I have added my name to the amendment tabled by my noble friend Lady Brinton because I believe we need much greater accountability at the top of NHS trusts. We have seen too many cases where serious concerns about patient safety have been raised, sometimes repeatedly, but those responsible for running the organisation have failed to act. Too often, protecting an institution’s reputation has taken priority over addressing the problem. I would like to give a personal example. Many of your Lordships will have heard of Baby Peter—“Baby P”—who died in the Tottenham side of Haringey. I was the MP for the other side, Hornsey and Wood Green. Baby Peter was taken to a clinic in Haringey where the doctor failed to notice a variety of injuries. Great Ormond Street had set up that clinic because they needed to demonstrate outreach work to get foundation status. At that clinic, it was a junior doctor who failed to notice the many injuries. Three of the four doctors at that clinic were not there: one had left and two were on gardening leave. They had been made to sign non-disclosure agreements. The one junior doctor who was left there to work pretty much on her own was the one who saw Baby Peter and failed. Together with Tim Donovan of BBC London, as it then was, we found that Great Ormond Street had commissioned a secret investigation, called the Sibert–Hodes report. It found them wanting. It found them guilty of employing a junior doctor who was so underqualified—it was unspeakable, what happened. I am sure you all know the story. Great Ormond Street hid that report. They failed to disclose it. I went to the board; I presented to the board; the board told me to get lost, basically. The chair of the board was not having any of it. All the members of the board were silent about what was happening. We all know what happened. I think this goes to the heart of institutions that are considered too important or too big to fail. That is what we seek to address with this amendment, which would place clear responsibilities on NHS boards and individual board members to report evidence of systemic medical malpractice or serious wrongdoing and require trusts to publish codes of conduct setting out what is expected of those in charge. That seems to me entirely reasonable. Staff who raise concerns about patient safety should know that those concerns will be taken seriously and that responsibility does not stop somewhere below board level. I will end by saying that this is a real-life, real-time example of what we are talking about. I am sure it is not an isolated occurrence of things being kept secret and the truth being hidden to save the reputation of a wonderful hospital like Great Ormond Street. They could have been even more wonderful if they had said that they had found a problem and had got a grip on it.
Lord Roe of West Wickham (Lab)
My Lords, I did not intend to speak to this group of amendments as I am here to support a Labour amendment concerning the independent public advocate. But, after listening to the debate, and having gone through two rounds of public inquiry and having led a very large organisation that was rightly put into two different kinds of special measures—through our inspectorate and through the aegis of a specially set up ministerial board to hold us to account on the basis of a public inquiry—I think these are really important amendments. This in an important group of amendments to support, because there should be as many different levers as possible to encourage both senior people and junior operational people inside big, high-risk endeavours to take decisions, even it if is difficult, in the light of logical systems of decision-making. The reason I say this is that we are approaching the issue from the point at which something has gone wrong. If these amendments pass, they will start to address some of the issues that might stop things going wrong in the first place. It would almost force organisations to train their people better in decision-making, record-keeping and applying systems, so that even if something goes very wrong—and I have worked my entire life in occupations where you can do the right thing morally or take what seems on the face of it the right decision in the moment, based on the information you have, and still get it desperately wrong, sometimes with fatal consequences—they understand that telling the truth is going to protect the reputation of the organisation in the longer term. In my experience it does, when you come clean. Secondly, you do not just have an incentive in the context of consequence; you understand that, if you can justify your logic, having recorded it at the time, and you have taken a decision in good faith, you should not fear criminal sanction, because the reality of criminal law—and I understand this, even though I am definitely not a lawyer, because I have spent so much time in this space—is that it will not apply to you, because you have done all the things you reasonably could with the information you had. If you are not in that position, I am afraid you probably have to accept an element of either criminal negligence or something more pernicious. We should not seek to excuse or present a foil for that. I thought that I would make that point when I was sitting here listening because, having been in that position, I think this is a very important group of amendments that I certainly support. I have thought about them and been challenged by them.
Baroness Jones of Moulsecoomb (GP)
My Lords, I have six amendments in this group and will speak first on five of them—Amendments 64, 65, 67, 69 and 140. The purpose of these is to clarify which functions of higher education providers fall within the scope of Schedule 2, so that there is greater certainty about where the duty of candour and accountability apply. The Government have acknowledged that universities perform public functions, including teaching and awarding degrees, but their position leaves important questions about the boundaries of those functions to be resolved on a case-by-case basis. What about activities such as student welfare and pastoral support, safeguarding, accommodation, complaints and appeals, or the way that universities respond to serious incidents? These are a big part of what universities do, and the decisions they make can have a huge and lasting impact on students’ lives. These amendments spell out exactly which of universities’ activities I am talking about; they cover admissions and assessment, academic progression and disciplinary processes, student support and welfare, safeguarding, accommodation, complaints and appeals, and responses to serious incidents, including student deaths and subsequent investigations. These amendments seek to give us a clearer picture of which university activities should count as public functions and would help ensure that the right standards of openness and accountability apply. The importance of this question becomes painfully clear when we hear from families who have lost a child while they were at university. A parent who contacted me through ForThe100 told me that their son died by suicide in April 2022, just four hours after the university had informed him that a restriction it had already imposed upon him had been escalated to a complete ban from campus. The family had not known that he was facing disciplinary action. After his death, the parent described to me a long and difficult process of seeking answers, including the struggle to obtain information and get the university to answer their questions properly. Even after the inquest, their attempts to obtain a full response to their concerns continued for a further 18 months. Families should not have to spend years seeking information, answers and accountability while they are already dealing with an unimaginable loss. The National Review of Higher Education Student Suicide Deaths , published in 2025, recorded concerns from families about transparency, communication and their involvement in investigations. It recommended a duty of candour tailored to higher education, and those concerns underline why we need to be clear about the responsibilities that apply when universities make decisions around students’ welfare and respond to serious incidents. A government letter of 1 September recognises that some university activities are public functions, but it leaves just too many questions about the other important areas. It does not make clear how the ethical conduct requirements in Chapter 2 are intended to apply to universities. These amendments would help to clear that up. They would give universities, students and their families a clearer understanding of where these responsibilities lie, while still allowing individual circumstances to be considered. If there are concerns that extending these provisions to higher education would mean that universities become responsible for providing healthcare or guaranteeing every student’s safety, I can reassure your Lordships that this is not what these amendments are about. There is an important difference between a duty to take reasonable steps to prevent harm and a duty to be open and honest about what happened if something goes wrong. The Bill’s duty of candour and assistance is about openness and co-operation in the inquiries and the investigations it covers; it means being prepared to explain what an institution knew, what it did and why. I will put four specific questions to the Minister, reflecting concerns raised by families through ForThe100 on the Government’s intended treatment of higher education. Do the Government consider pastoral support, student welfare, safeguarding and university-arranged accommodation to be activities forming part of the provision of higher education? Does that extend to academic disciplinary processes, student complaints and appeals, and responses to serious incidents including student deaths? If these are public functions, is there a reason that they should not be expressly identified in Schedule 2, rather than leaving the boundaries to case-by-case judicial interpretation? How do the Government aim to ensure that Chapter 2, on ethical requirements, applies to the relevant public functions of higher education providers? I would really like the Government to explain how the Bill will operate where a university’s activities involve both public functions and arrangements with private contractors. My Amendment 66A moves on to all of your Lordships, because I do not understand why politicians like us should be held to a lower standard of honesty than other public officials. That is what this amendment is about. Why are Members of this House and other UK Parliaments and Assemblies excluded from this new offence of misleading the public? Is it clear enough when the offence applies? The Government have decided that intentionally or recklessly deceiving the public on matters of serious public concern should be a criminal offence for public officials. We are talking about serious deception proved to the criminal standard in court, not making a mistake, getting something wrong or changing your mind. The offence will apply to Ministers, civil servants, police officers, members of the Armed Forces and other public officials, but Members of this House, the House of Commons, the Scottish Parliament, Senedd Cymru and the Northern Ireland Assembly are excluded. I simply do not understand why that distinction has been drawn. If the purpose is to improve accountability in public life, should that principle not also extend to this House—to people who actually make laws, scrutinise the Government and speak to the public on matters of national importance? There is a second issue that this amendment is for: uncertainty about when someone is acting in their official capacity. The Bill makes the offence dependent on a person acting in their capacity as a public official or public authority, but it does not clearly define what that means. People should be able to understand the law before they act. It has been raised that the Law Commission previously warned, in its examination of misconduct in public office, that the meaning of acting in an official capacity was insufficiently clear. The Bill abolishes the common law offence of misconduct in public office because of the uncertainty around it, yet the new offence of misleading the public relies on almost the same language. Should we not be careful not to repeat the very problem that the Bill is meant to address? I was going to talk about the case against Boris Johnson, but I will skip that. When creating a new criminal offence, should Parliament not seek to provide as much clarity as possible, rather than leave key questions about its scope to be settled by the courts? This amendment would bring Members of this House, the House of Commons, the Scottish Parliament, Senedd Cymru and the Northern Ireland Assembly all into the definition of public official for the purposes of duty of candour and the offence of misleading the public. It would apply the principle of accountability to those who make our laws as well as those who implement them. Secondly, it would protect parliamentary proceedings and political opinion. Nothing said or done in the proceedings of any UK Parliament or legislature could be caught by these offences. The amendment would also expressly protect expressions of honestly held political belief or opinion by Members of those Parliaments and Assemblies, so it is not about restricting debate in Parliament or criminalising political differences; it is about holding politicians to account for serious deception. Thirdly, it would clarify when certain officeholders are acting in their official capacity and would provide that Members of this House and other UK Parliaments and Assemblies, Ministers and specified mayors are treated as acting in their official role when speaking to the public about matters of serious public concern, while they are still free to express their political views. Communications made in a judicial capacity or concerning solely private life, family life or private business are obviously excluded. Fourthly, it would clarify what constitutes harm for the purposes of the offence. It would provide that harm can include undermining public confidence in public authorities, public officials, the exercise of public functions or democratic processes. Then it identifies six purposes for which such a communication might be made. It covers situations where deception could have serious consequences, such as misleading the public to justify military action, concealing risks to public safety or misrepresenting how public money is spent. This is Bill needs clarification. I have a lot of sympathy for almost all the amendments that we have heard today. I urge the Minister and the Government to actually listen and act on what they are hearing. There are difficult questions where criminal law and political speech intersect, but difficulty is not a reason to look away; it is a reason for us to engage, examine the wording carefully and get it right. I support Amendment 66 from the noble Baroness, Lady Coffey, as well.
Baroness Coffey (Con)
I thank the noble Baroness, Lady Jones of Moulsecoomb, for supporting one of the amendments that I tabled. I will reflect in due course on her last point, as I think she has something there. It is confusing that, in the Bill, a Minister can be challenged. I wonder quite how many complaints will go to the police about the assertions by the Prime Minister that Russia affected—or influenced, it seems—the outcome of the referendum on Brexit, when, later on, Ministers clarified by saying that the Government have repeatedly said that that influence had no impact; it may have been tried but it did not succeed. There is an odd thing going on here about what becomes opinion, debate or fact. To that end, very specifically, I would be grateful if the Minister would commit to publishing all the information given to the Prime Minister when he made assertions of a serious nature about the impact on the biggest ever electoral vote that happened—the Brexit referendum—and raised doubt about whether it could have been a wrongful outcome. For what it is worth, I voted remain; even still, the Prime Minister is on shaky ground in the way he has conducted that. Coming back to my Amendments 66 and 69A, I thank the clerk, who I will not name, who helped me get this debate tonight. I wanted to amend the FoI Act and look at some other ways that declarations get made that I believe are in the public interest to fully understand—but this was the way to do it. For a start, Amendment 69A is basically about the Houses of Parliament not being required to come up with an ethical code of conduct in how they give information. I think it is a bit odd that all the Parliaments are excluded. I want to understand why the Minister thought that it was correct that our own Houses do not have to obey a similar standard to other public bodies. Amendment 66 is all about misleading the public. A couple of situations come to mind. One was the fire drill when we were evacuated from this Chamber, just last month or whenever it was. I tried to find out the learnings from that. I thought that would be in the public interest, in recognition that the number one reason that we keep being given for why we need a brand-new R&R project, these Houses being vacated and the spending of billions of taxpayers’ money is fire. I thought it would be reasonable to try to find out what the learnings were. When I put in an FoI, because I could not get the answer through normal routes, the entire section on learning from the drill was redacted. It was deemed sufficient for the Houses of Parliament to use their special FoI exemption, where you basically cannot appeal against the decision made. This is where I start to worry: what else is being concealed? Why can we not have a somewhat more open approach to considering these sorts of issues? That topic may not be the most exciting in the world, but there are plenty of others where information is effectively withheld—not quite on a need-to-know basis, but almost as though we do not want the public to know some of the issues that are going on, so we just hold those things back. More broadly, I am worried about how applying the provisions on misleading the public to Ministers will work in practice. For example, thinking about prison places, the magic figure of 500 is regularly cited by Ministers. On the Government’s own website, their statisticians basically say that you cannot rely on that number, so why do government spokespeople continue to use these phrases on behalf of Ministers when the Government’s own statisticians are saying that they cannot rely on that number? I am concerned that this will become almost a tit-for-tat escalation and that the police will be involved in trying to judge whether to arrest government officials and Ministers because of things they say.
I doubt that is the intention of Ministers, who would want to continue to have political debate and potentially be misleading. There are other examples. When Ministers put something in a Bill they cannot be challenged: it is their view and opinion, and they do not have to release any legal information. The only way to challenge it is to refer the individual Minister, as a Member of this House, to the Parliamentary Commissioner for Standards.
The Government should think carefully. That is why I support the amendment tabled by our Front Bench about the guidance. It will be key to what officials should or should not do, thinking this through and how it relates to other Acts of Parliament. It is so complicated that it gets away from the origins of how parts of this came about: the Hillsborough disaster. I grew up in Liverpool and was in school there at that time. It impacted the city, but more broadly than that it made sure that there was a reduction in trust in the people we should trust: the police and other officials. Getting into this very important Bill from where it started off, how we cover all these different ways of making sure freedom of speech is protected while balancing what we consider to be reckless or seriously improper will be critical.
I am conscious of another amendment that basically says that people overly rely on self-incrimination, but there are challenges here: “I am not sure that I did do that”, “I didn’t do it recklessly”, or, “I didn’t do it knowing it was going to lead to this outcome”. Meanwhile, somebody might be able to find a paper or minutes of a committee meeting published two, three or 10 years beforehand which would lead to them saying, “How could you have come to that conclusion? Surely you should have been aware”.
I am looking at the practicality of this while trying not to undermine the original intention that people should tell the truth. It is as basic as that. The Houses of Parliament should tell the truth and have an ethical approach in making sure that they do so. With that, I will consider other amendments that we will discuss in due course.
Baroness Bowles of Berkhamsted (LD)
My Lords, I wanted to speak on this issue of privilege. I have considered it before in another context and I find that, at times, I am a little bit antipodean in my view of it, in that the Privy Council narrowing down of what it applies to is inconvenient. But we do not need to go into all that; the issue here is simply, as the noble Baroness, Lady Coffey, said, about truth and honesty. Basically, if you are knowingly misleading then there should be consequences. Why should the consequences be any less in this House than elsewhere? This is not something that I have consulted colleagues on at all, and I apologise that I was not present at Second Reading as I did not think that there were things that would interest me. But this issue is quite straightforward: if you deliberately mislead then you should face the same consequences as everybody else. It may not be that the perfect solution has been drafted by the noble Baroness, Lady Jones, but we should continue to discuss whether we should have that or something else to bring back on Report, because it is unsatisfactory for it to be treated like other, what I would call more minor misdemeanours. I do not think I need to say any more, but I want to investigate this further. I have a question for the Minister that I do not know the answer to. If somebody tweets what goes on in this House, what is the privilege situation on that? Is it counted as a recitation and therefore, privilege does not apply; or, because it is the proceedings of this House, does it constitute something that is privileged? Because you can disseminate something that is said in this place and it can go viral, if it is misleading, you have to take that amplification into consideration.
Baroness Fox of Buckley (Non-Afl)
My Lords, listening to some of the conversation, I have become slightly anxious that the Bill will end up as some sort of “Ministry of Truth”. Although I am very keen on the pursuit of truth, we have to be careful that it does not stifle our ability to speak freely. I am going to speak to a couple of groups of amendments next week, but I want to say at this point that the amendments from the noble Lord, Lord Carlile, are hugely important. The dangers of self-incrimination, over-legalisation and over-criminalising that the Bill brings about could have the very opposite effect of candour and lead, in effect, to people lawyering up and shutting up. What you want people to feel is that they can speak the truth in good faith without constantly thinking they are about to be blamed or held criminally liable when they acted in good faith, as it were. It is of course very difficult to decide what good faith is, but we know that there are already duties of candour in the health service, as noble Lords have said, and that has not led to more truthfulness or candour. Actually, it has led to a much more cynical closing down of debate. Saying that we should have parliamentary privilege is always very difficult, especially in an unelected Chamber. One is very conscious of the fact that you are given rights that should perhaps be afforded to the rest of the population. Maybe it is in these Chambers that we have more weaselly definitions of truth, what is truthful and what is candour than anywhere else. However, I still insist that parliamentarians must be able to speak candidly all the time and to speak out. So, I would not extend the Bill to parliamentarians, because I am worried about an atmosphere in which parliamentarians already will not be open and honest. I do not want to have to listen to another politician say—I do not mean here, but when I am, as it were, a member of the public listening to the radio or watching the TV—“As you know, we are not able to comment at this time because of the process” or “because there is a process that needs to be followed”. That is the opposite of candour. My point is that we do not want anything else that will stop people speaking out. Finally, we should consider the issues the noble Baroness, Lady Jones, raised in relation to universities. One of the things she said that was very compelling was that when institutions sometimes lose perspective about what their roles are, they can get themselves into trouble. The people I know who work in universities, for example, are no longer considered just academics but are asked to be social workers and would-be parents. There is in fact a real infantilisation of students. Academics are expected to have so much duty of care that they have got to the point where they cannot teach. If anything, we need to make sure that the particular function of an organisation or administration is narrowly drawn, rather than covering everything. One of the reasons why so many of our public sector organisations get into the mess they do is that they have forgotten what they were meant to be doing—which they now neglect and do not do very well—and have taken on a lot of things they are not expert in. Universities are now in a situation where they are covering up, precisely because they have forgotten what they were there to do. We are here to tell the truth, and we should at least do that without fear or favour. I do not want another code of conduct imposed on parliamentarians. That will not lead to more truth; it will just lead to more—I am not doing very well at this myself—choosing our words too carefully instead of being frank and thinking out loud and trying to solve problems. We will end up just watching our backs, and that is the very thing we do not want to come from the Bill.
Baroness Hamwee (LD)
My Lords, I will not press Amendment 11 in this group. I found out this morning that the Inquiries Act 2005 answers my query and seems to agree with me. I want to ask a very narrow question of the Minister on Amendment 141, which raises the issue of what activities and responsibilities of the City of London are covered. I pursued this online because I wondered about bridges. Bridges in London are very contentious, as all the riparian authorities could testify. A “local authority matter”, which is what will apply to the City of London, is defined as “any matter … which relates to the area of the authority … in respect of which the authority exercises functions”. The bridges are, I think, all on one side in the City. But I wondered about Epping Forest. I did say that this was a narrow point. The City’s responsibility appears to extend into Essex. I do not expect the Minister to answer on the detail of this now, but I wonder whether there is anything else outside the City that the City runs. Like everybody else, I would just like to get the Bill right.
Lord Lemos (Lab)
My Lords, this has been an interesting, important and wide-ranging debate. This group of amendments is principally about the application of the duty of candour, which obviously the Government take extremely seriously. The issues raised by noble Lords seek to address the concern, which the Government understand, that we may not achieve the culture change that we, in different ways, seek through the provisions of the Bill. It is in that spirit that I will try to deal with those concerns. It is through the miracle of grouping that we have such a large and coherent group of amendments to deal with here. Before I speak to those amendments, I wish to turn first to a modest collection of government amendments in my name. Amendments 15, 16, 141, 149 and 151 are minor but important changes that strengthen the existing duty of candour provisions in the Bill. Currently, the Bill requires a coroner to issue a compliance direction to any public authority or public official who is an “interested person” under the Coroners and Justice Act 2009. Amendment 15 seeks to remove ambiguity regarding suspended inquests by making it clear that, where proceedings have been suspended, the coroner is not required to issue a compliance direction. However, if proceedings are resumed, the obligation on the coroner to issue a compliance direction is reinstated. This approach seeks to preserve the intent of the duty of candour while at the same time respecting the statutory framework contained in the 2009 Act. Amendment 16 extends the fining power available to coroners, as set out in Schedule 6 to the 2009 Act. The extension captures instances where a compliance direction is issued by a coroner and the “interested person” subject to it cannot provide a reasonable excuse for their non-compliance. This change strengthens the utility of compliance directions and will ensure that coroners have the full range of familiar enforcement options.
Government Amendment 141 clarifies that the Common Council of the City of London is a local authority for the purposes of the Bill, but only in its capacity as a local authority or port health authority, and not in its private capacities, which fall outside the scope of the Bill.
As the noble Baroness, Lady Hamwee, accurately predicted, I cannot immediately confirm the position on Epping Forest, but I take it very seriously, along with Hampstead Heath. I will check and get back to her.
Lord Alton of Liverpool (CB)
My Lords, I realise we have moved on to Epping Forest and Hampstead Heath, but on the point about coroners, will the noble Lord agree to publish the correspondence between himself and myself about resources for coroners? This touches on a point made earlier by the noble Lord, Lord Wolfson, about the impact assessment. Before we discuss this later in the proceedings concerning resources, it would be helpful for the House to see both the letter to him and his reply, which came only today. Even if it were just placed in the Library, it would be for the convenience of the House.
Lord Lemos (Lab)
Certainly, I will check with my officials, but I do not have any objection in principle to that at all. I signed it off this morning, so I know what it says. I am sure that will be fine; it is obviously germane. Additionally, Government amendments 149 and 151 clarify the powers available to the Scottish Ministers and the Northern Ireland Department of Justice to make regulations to commence the parts in the Bill for which they have competence. Turning to the amendments of other noble Lords, Amendments 12 and 14 tabled by noble Baroness, Lady Chakrabarti, relate to compliance directions. Service provisions for statutory inquiries, as she acknowledged, are already provided for in The Inquiry Rules 2006, which is why they do not appear in this Bill. Non-statutory inquiries, by their nature, have no such provisions, so the Bill provides them in the context of compliance directions made under this Bill. However, I am open to looking at where the Bill might helpfully provide clarification and I certainly intend to return to this point at Report. I turn now to the probing Amendment 13, tabled by the noble Baroness, Lady Brinton, which seeks to ensure that the duty of candour and assistance extends automatically to independent panels and reviews established by the Minister of the Crown. I note that similar amendments were tabled in the other place. The duty of candour and assistance applies to all statutory inquiries and non-statutory inquiries as set out in Schedule 1. Until now, non-statutory inquiries have not been clearly defined, so the Bill sets out the criteria for an inquiry where the duty of candour and assistance will apply. Most independent panels, like the Hillsborough Independent Panel, would meet the definition of non-statutory inquiries in the Bill, so we would expect the duty to apply to similar panels, investigations or reviews in future. Reviews can, however, be held on a range of issues—for example, the net zero review and a number of others. It is not appropriate to apply these duties in all these circumstances. The Cabinet Office is undertaking work to look at how inquiries could be reformed, including how different types of inquiries, reviews and investigations could be more clearly defined and best be used. There is always a slight misalignment of timing with these things. But I can reassure the noble Baroness that this work is under way, and it will inform how the duty is used in relation to those reviews going forward. Turning to the important Amendments 18 and 20, tabled by the Noble Lord, Lord Carlile, the Bill replicates the protection against self-incrimination in the Inquiries Act 2005 and the inquest or fatal accident inquiry legislation that applies in the different parts of the UK. It can be, and has been, the case that witnesses do not provide an answer or evidence due to the protection against self-incrimination. In such situations, the Attorney-General can issue, and indeed has issued, an undertaking that information provided by a person to an inquiry that may be self-incriminating may not be used in criminal proceedings against the person. The noble Lord’s amendments would remove the protection and replace it with a provision to the effect of what could already be in an Attorney-General’s undertaking—namely, that information provided in compliance with the duty of candour may not be used in criminal proceedings to prosecute the person who provided it. I understand the intention behind this amendment. I am very happy to read the more detailed document he promised—
Lord Carlile of Berriew (CB)
How many Attorney-General’s directions of that kind have been given in the last 10 years?
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.
Lord Alton of Liverpool (CB)
I am sorry to interrupt, but the noble Lord will recall that I raised this issue at Second Reading. I am grateful to the noble Baroness for introducing this amendment. For the families, not least those in ForThe100, who have actually experienced the deaths of students—it could apply to academics as well—will the Minister confirm that, where there has been the suicide of an academic or a student, it will then be possible for the terms of the duty of candour to apply totally to the university in those circumstances?
Lord Lemos (Lab)
I will happily check because I obviously do not want to get it wrong, but I would assume that if there is an inquest in those circumstances then it certainly would apply. But I will check, and I absolutely understand the concerns of families of students who have committed suicide, so I will happily come back on that. I am running out of time. I have three or four minutes left, but I promise I will get there.
Amendments 66 and 69A in the name of the noble Baroness, Lady Coffey, and Amendment 66A in the name of the noble Baroness, Lady Jones of Moulsecoomb, seek to extend the application of the duty of candour and assistance and the offence of misleading the public to your Lordships in this place and Members of the other place. It is a long-standing constitutional convention that Parliament regulates its own affairs. Parliament has its own arrangements for ensuring accuracy and truthfulness in proceedings, including processes for determining whether Members have misled the House.
The Government thought very carefully about who the offence should apply to, but Parliament has a unique role in the system. Noble Lords and Members of Parliament are responsible for scrutinising and improving legislation and holding the Government accountable. Back-Benchers do not take decisions on behalf of the state, nor do they have access to the kind of information that would be available to Ministers. We therefore take the view that it is not appropriate to extend the offence to Back-Bench parliamentarians. I think this is the first time I have spoken from this Dispatch Box where I have enjoyed the support of the noble Baroness, Lady Fox of Buckley, so I appreciate that.
Baroness Jones of Moulsecoomb (GP)
The noble Baroness, Lady Brinton, might want to come in here as well; perhaps we are thinking about different aspects. We vote and we are responsible for passing legislation. I would argue that our processes have failed in the past. Therefore, it is probably best if we improve them, and this Bill can do that.
Baroness Brinton (LD)
My point is slightly different. I am looking at Amendment 66A from the noble Baroness, Lady Jones of Moulsecoomb. I am not sure that she is talking about proceedings in Parliament; I think that is specifically excluded. I think it is about the actions of politicians elsewhere. Might the noble Lord write to us to explain why parliamentarians should be exempt, given that this amendment proposes exemptions for our work inside the Chamber for fairly obvious reasons?
Lord Lemos (Lab)
I am very happy to write. There may be many things wrong with the way we conduct our affairs, though I might not quite share the view of the noble Baroness, Lady Jones, about that, but there is a long-standing principle of parliamentary privilege and I do not think the Bill is the right place for that.
Baroness Brinton (LD)
I did not intend to intervene again, but I do not think I am misreading the amendment. It would permit parliamentary privilege. It is saying that other activities by politicians would be caught by the duty of candour. Perhaps the noble Lord could write if he thinks that our reading of that is wrong.
Lord Lemos (Lab)
I will happily write and discuss it further with noble Lords, but let us go forward on that basis. I thank the noble Lord, Lord Marks of Henley-on-Thames, for tabling Amendment 68, which seeks to probe the definition of “public authority” in line with the provisions of the legal duty of candour. The legal duty applies only in particular circumstances—when, to put it simply, something has gone wrong and there is already an inquiry or investigation under way. We have therefore applied it widely. The provisions in Chapter 2 on codes provide a more substantial ongoing requirement, in that bodies will need to maintain a comprehensive code of ethical conduct that covers how their employees must conduct themselves when going about their business. We have focused on the public sector as the Government have some control over these bodies. We consider it appropriate to set more substantive ongoing requirements that will deliver the change in culture that I think we all want to see as a consequence of this Bill. The noble Lord’s amendment would force all bodies which perform any public functions to adopt a code of ethical conduct and to apply the code even to functions which are entirely private. The Government will issue statutory guidance which will seek to provide clarity to public authorities on whether they fall within the scope of the Bill. We will deal with the question of subcontractors in a later group. Finally, government Amendments 15, 16, 141, 149 and 151 may be technical in nature but they are important for ensuring the consistency of decision-making in the coronial jurisdiction. On the question of impact assessments, we are publishing a new one this week on the changes that have been made to the Bill, and we will publish another one at Royal Assent.
Lord Carlile of Berriew (CB)
Before the Minister sits down, I wish to take him back to what he said in response to Amendments 18 and 20. He stated that the Attorney-General has a discretion to stop a prosecution if there is a risk of the privilege against self-incrimination being the cause of that prosecution. Will he carefully check that and write to me? My understanding is that, in national security cases, the Attorney-General has the right to stop a prosecution in the way the Minister mentioned; I would not contradict that for one moment. However, if there are cases, other than Northern Ireland Troubles cases, in which the circumstances the Minister described have occurred, I was very surprised that he did not know which cases they were or how many cases there are. He should have known that information for the purposes of this debate; he had plenty of notice of my amendments. Please can he write to me in full justifying the response he gave to me in very short summary?
Lord Lemos (Lab)
Of course I will write. I am grateful for the thoroughness of this debate, and I apologise for the length of my answers. For the reasons I have given, I hope the noble Lord, Lord Wolfson, will withdraw Amendment 6A.
Baroness Coffey (Con)
My Lords, we are allowed to speak twice in Committee. I was slightly disappointed that the concerns I raised were brushed away and linked with something to do with parliamentary privilege. I do not understand why the Government have decided that an ethical conduct code is not required by the Houses of Parliament or others. I also did not get an answer to the question about the Prime Minister’s declaration on interference—not attempted interference—in the Brexit referendum. The Minister mentioned writing to people with answers to questions raised in this debate. I would be grateful if he made sure that those letters go into the Library, and if he would say that he will do that, so that all Members of the House can understand where the Government are taking the Bill.
Lord Lemos (Lab)
I will happily write. The noble Baroness asked me about the Prime Minister’s comments on Brexit. I was slightly confused. On the one hand, she seemed to be saying that, when things were disclosed by the Prime Minister, they were not accurate; but in other cases, she was arguing that information should have been released when it was not. In any case, I will write.
Lord Wolfson of Tredegar (Con)
My Lords, I will be brief. I am very grateful to the Minister for what he said about the guidance. Obviously, the sooner it is made available the better, but some advance sight of it before it is formally published would also be very helpful; no doubt we will continue to discuss that. I will take 30 seconds to pick up on the point about parliamentary privilege. It is true that Amendment 66A excludes what is said in Parliament, although it also does not apply to “any expression of an honestly held political belief or opinion”. I can think of interesting private prosecutions that could be brought on the basis that something said by a politician was not an honestly held opinion, and that illustrates the wisdom of our forebears in placing blanket privilege where it has been resting for many centuries. I do not think the noble Baroness, Lady Bowles of Berkhamsted, got an answer to her question. Without undertaking any legal obligations to the noble Baroness, the short answer is that everything said in Parliament enjoys absolute privilege, and if you tweet a report of it, you have qualified privilege. The main point about qualified privilege is, in short, that it has to be a fair report. Importantly, you would be wise to put in your report that it was said in Parliament. “Lord Wolfson said in the House of Lords that Mr Smith is a fraudster” is probably okay, whereas “Mr Smith is a fraudster, as Lord Wolfson says” is probably not. With that, and without sending in a fee note, I withdraw my amendment.
Amendment 6A withdrawn.
Amendment 7 not moved.
Amendment 8
Moved by
8: Clause 2, page 3, line 2, leave out from “authority” to end of line 3 and insert “is responsible for the discharge of the obligation or obligations.” Member’s explanatory statement This amendment seeks to clarify and render more enforceable the obligations on those in charge of public authorities.
Baroness Chakrabarti (Lab)
My Lords, this short group—which I hope we can take briskly—is about command responsibility. I worry that the current iteration of Clause 2(5) is practically unenforceable. The obligation to “take all reasonable steps” seems very vague for a duty that attracts non-strict criminal liability in an egregious case. My amendment supports the principle and purpose of the clause—in other words, to establish command responsibility—and would make it work better. This leadership responsibility on senior public officials is crucial in attempting to restore public trust. The sanction for breaching this duty is the criminal offence in Clause 5. It is set at an appropriately high standard: as we heard earlier, it requires proof of intention or recklessness in the sense of ignoring a foreseen risk. The Kerslake review provides an example of why the amendment is needed. In that case, a chief constable provided completely inaccurate evidence to the review, which he later accepted had been a “very grave error”—but in so doing, he attempted to blame other officers. Under the current draft, I fear he would likely avoid responsibility. Amendment 8 seeks to rectify this. If the chief constable was in fact misled by others, he would still have the legitimate Clause 5 defence of a lack of intent or recklessness. That provides the right balance. Amendment 25 is in the names of the noble Baronesses, Lady Brinton and Lady Hamwee. I hope they will forgive me for suggesting that, while this amendment attempts to achieve the same result, it is less effective because it does not remove the “reasonable steps” caveat that makes it so easy for a public authority leader to pass the buck. That is what I am trying to get at here. Once more, I am supported in my amendment by the Hillsborough Law Now campaign and by Justice. I beg to move.
Baroness Brinton (LD)
My Lords, as the noble Baroness, Lady Chakrabarti, has explained, her Amendment 8 seeks to ensure that there is absolute clarity about the responsibility of the person at the top of an authority. Her reference to the Kerslake review was helpful, not just to the case for her amendment but for once again reminding your Lordships’ Committee about the lengths to which people will go to misbehave in public office. We have talked about that in many of the groups this evening; we must have a mechanism to protect the truth and make sure that it comes out. I have tabled Amendment 25, which is also signed by my noble friend Lady Hamwee. This amendment would also ensure that a chief executive officer would be liable if they fail to comply with the duty under the Bill, either because they intend for their failure to impede the inquiry or because they are reckless. That personal responsibility on a chief officer or a chief executive of a public authority is equally important in many of the larger cases we have talked about today. The Bill is very strongly moving forward towards holding senior leadership and public bodies to account. However, if one thinks about the Post Office Horizon inquiry and investigation, it is clear that not just the leaders but the entire management team felt that it was appropriate to focus on the good name of the organisation and not to ask the difficult questions most people ask when they are on boards, whether they are public or private company boards. I am very grateful for the comments of the noble Lord, Lord Roe of West Wickham, in the last group about how important telling the truth is, because it will protect the organisation and the people in it. And it changes the culture, which is the big thing. You cannot legislate to change culture, but you can have carrots and sticks, and this amendment is both. The stick is there because, at the end of the day, if a chief executive fails, on behalf of the organisation, to understand what is going on, they can be held accountable. But the carrot is the good examples of organisations where information flows and people are not afraid to speak. They probably do not even need whistleblowers in those organisations because the culture is such that decisions are made and people come forward at whatever level to say, “I am concerned about that”. That is all I want to say on this, except that it is not just about Post Office Horizon. With practically every inquiry that we have discussed today there have been failings at the most senior level in the organisations, including sometimes, I am afraid, in government, and that is why we need either this amendment or Amendment 8 tabled by the noble Baroness, Lady Chakrabarti.
Lord Keen of Elie (Con)
My Lords, the amendments in this group share a common desire to see the head of a public authority take greater responsibility for their organisation’s compliance with the duty of candour. Amendments 8 and 25 would therefore have the effect of making the head of a public authority responsible for the compliance of their public authority and, as a consequence, guilty of an offence where the public authority failed to comply with the duty of candour. There is a balance to be struck here. Of course, those responsible for a failure to comply with the duty of candour must be held responsible. But that desire for accountability ought not to result in dedicated public servants, who have taken all reasonable steps to ensure their organisation complies with the duty of candour, being criminalised. There is a further point that should be considered here. What would an extremely tightly drawn responsibility to ensure compliance do to the effective recruitment of senior public officials? A candidate for a role as head of a public authority might well see the risk of being prosecuted under this stricter responsibility as a barrier to taking on any such role. Have the Government addressed the impact of that risk if such an amendment as that proposed here was to proceed? I do not question for a moment the well-meant intentions of the noble Baronesses, Lady Chakrabarti and Lady Brinton, in bringing forward these amendments, but there are practical issues which Ministers would have to consider very carefully before placing any tighter definition of responsibility on the heads of public authorities.
Baroness Brinton (LD)
Might I just ask the noble and learned Lord a question? My amendment would be inserted in Clause 5, on page 5, after line 21—that is, after Clause 5(1)(b)(ii). Clause 5 already talks about “failure to comply” and “failure will impede”. This is not a general castigation. It sits very firmly within the much more general failure, which will not have happened entirely without the knowledge of people at the top of the organisation.
Lord Keen of Elie (Con)
Nevertheless, I suggest that the tightening of this liability has to be approached with conspicuous care.
Lord Lemos (Lab)
My Lords, the Government strongly agree that there must be individual senior accountability for the duty of candour and assistance, with those who have engaged in state cover-ups held responsible. The Bill has been designed to deliver precisely this. The most senior individual in a public authority is under a specific duty to take all reasonable steps to ensure their authority complies with its obligations under the duty of candour. If they fail to do so, they face prosecution. They can, of course, also be prosecuted as an individual official in their own right if they breach the duty of candour personally. And if anyone in a management position has consented to or connived with the breach of another, they can also be prosecuted. We think the right approach is to hold the heads of authorities accountable for things they can reasonably be expected to do or not do. That is in the spirit of command responsibility and we are confident that such accountability will have the effect of driving positive cultural change. Amendment 8, tabled by the noble Baroness, Lady Chakrabarti, would have a different effect. It would provide that, while the duty was on the public authority, the head of the authority was responsible for the discharge of that duty. In effect, that would mean that the duty was not on the public body but only on the head. We think it is important that the duty of candour applies to public bodies corporately as well as officials individually. Inquiries and inquests can and do regularly issue requests to authorities corporately, but the amendment would mean the body would not in effect be under the duty of candour, but rather the head would be individually. This would create an inconsistency and we do not think it would be practically effective. As I have set out, the Bill already provides for command responsibility and has clear provisions that place a specific duty on the head of an authority to take all reasonable steps to ensure its compliance. We are confident that these are strong and leave no gaps, but we are open to considering alternative formulations and we will consider the existing provisions carefully in the light of both these amendments. I therefore hope that the noble Baroness, Lady Chakrabarti, will feel able to withdraw her amendment.
Baroness Chakrabarti (Lab)
My Lords, I am grateful for the quality of this short debate. The issues remain very clear, including concerns about the amendments. Just briefly, the duty of candour and assistance under Clause 2 sits on two sets of shoulders. It sits with the individual leader of the public authority, and it also sits with the body corporate. That is not changed by either amendment. My amendment just says taking reasonable steps is not enough; it has to be that they are responsible. What I do not quite understand about the concern of the noble and learned Lord, Lord Keen of Elie, is why for the individual to be liable they had to intend not to comply with the duty of candour or be reckless. It seems to me that intention and the issue of recklessness are enough to protect the decent public servant who is doing their best. We do not need to add another layer of taking reasonable steps. But that is perhaps for further discussion. In the meantime, I am grateful to everyone and beg leave to withdraw the amendment.
Amendment 8 withdrawn.
Amendment 9
Moved by
9: Clause 2, page 3, line 7, at end insert— “(6A) For the avoidance of doubt, the duty of candour and assistance referred to in this section, and the other requirements placed on public authorities by this Act, apply to interactions with the standing advocate appointed under section 35 of the Victims and Prisoners Act 2024.”Member's explanatory statement This amendment seeks to confirm that the duty of candour applies to any dealings public authorities and public officials may have with the Independent Public Advocate.
Baroness Sanderson of Welton (Con)
My Lords, it is a privilege to introduce this group and these amendments, which are designed to incorporate and acknowledge the role of the Independent Public Advocate in the context of this Bill, because the Bill and the IPA are really two sides of the same coin. As we know, the Bill is about targeting and ultimately dismantling the institutional defensiveness that stops people getting to the truth, while the IPA is the person whose job it is to represent those people when those institutions have let them down. I will focus today on Amendments 9 and 125 in the name of my noble friend Lady May of Maidenhead, who is sorry she cannot be here. I, too, am sorry because, having put my name to them, I am afraid it means that instead of a former Prime Minister, noble Lords have me as a rather poor tribute act. Nevertheless, I hope the rationale behind the amendments will remain clear. Amendment 9 would make it explicit that public authorities and public officials are required to operate the duty of candour in any dealings with the IPA. While the Bill contains a broader general duty of candour, the specific naming of the IPA would serve several purposes. First, it would provide a legislative coherence with the Victims and Prisoners Act 2024, which created the office of the IPA. Secondly, it would recognise the unique role of the IPA in delivering the strategic objectives of this Bill. Thirdly, it would help establish the IPA as someone who cannot be disregarded. This last point is so crucial because it is potentially so transformative. As lots of people have discussed today, one of the many recurring themes that run through the disasters and scandals of previous decades is the egregious length of time it takes to get to the truth, Hillsborough being the most prominent example. The Bill focuses on inquests and public inquiries, and understandably so, but as the noble Baroness, Lady Brinton, mentioned in a previous group, this means that families are already a long way down the line from the original incident. As the noble Baroness, Lady May of Maidenhead, said at Second Reading with regard to Hillsborough, “the lies, the manipulation of the facts and the misinformation at Hillsborough did not start at the inquest or at the independent panel; they started on and off the pitch on the day, 15 April 1989 ”.—[ Official Report , 1/9/26; col. 40.] There was no Independent Public Advocate back then but, had there been, they would have been deployed in the immediate aftermath, representing all those families and making sure that their voices and their legitimate concerns were heard. We cannot say whether things would have turned out differently, but you can imagine that with a strong IPA, perhaps with the duty of candour behind them, they might have done. In looking to the future, and again in the words of my noble friend Lady May, “there will be circumstances where it will not be necessary to move to a public inquiry; if the Independent Public Advocate can work with the families who are affected by a mistake by the state, they can get to the truth at an early stage and there will be no need to move to an inquiry ”.—[ Official Report , 1/9/26; col. 41.] Of course, this will not always be the case, but if the IPA is robust and the families have faith in the IPA, it is possible that where an inquiry is needed, it will not need to be statutory. At Second Reading, we heard from a number of noble Lords about the proliferation of statutory inquiries—the fact that they are unwieldy, time-consuming and expensive—yet invariably, a statutory inquiry is the default position. That is because families see it as the only way to get to the truth, because it has the power to compel evidence. That is why in pretty much nearly every case where the Government have tried to establish a non-statutory inquiry in recent years, they have ended up having to convert it after pressure from those affected. While this Bill will go some way to addressing that, we need the added heft of the IPA—that trust in that position and the belief in that position—to really move that forward and give people the trust to perhaps go for a different form of inquiry. I shall leave it to the noble Lord, Lord Wills, who has great experience and authority in this area, to further demonstrate by his Amendments 122 and 125B the advantages of non-statutory inquiries, the role of the IPA, what the IPA can and should do, and the benefits of the IPA in helping to bring families together after a major tragedy. I shall listen with interest to contributions on Amendment 118 in the names of the noble Baroness, Lady Hamwee, and the noble Lord, Lord Alton of Liverpool, which seek to clarify the IPA’s role with regard to inquiries, investigations and inquests. Finally, I briefly turn to Amendment 125. This is a probing amendment that seeks to ensure that the IPA is given the right levels of support to establish the necessary frameworks to fulfil its remit. As it stands, the role is structured as two days per week with the flexibility to scale up to a full-time position during an active deployment. Cindy Butts, the first IPA, was appointed in September 2025. The following month, she was deployed following the terrible attack at Heaton Park synagogue. Just to be clear, during the year that she has been operational, she has done an outstanding job—but with the best will in the world, she is not yet operationally ready for a tragedy on a larger scale or more than one incident at a time; it could happen. It is hard to see how she will be ready if she soon reverts to two days a week, with an office of just three people and an annual budget of just over £500,000. We are the first and, so far, the only country to introduce this role, and that is something that we should be really proud of, but it means that we have a particular responsibility to get it right. To that end, I appreciate that there will be a review of the role next year, and these questions may be for that review. Given the way that the Bill and the IPA go hand in hand, at least to my mind, it seems appropriate to mention it here, particularly if the Government consider Amendment 9, which I very much hope they will. On that note, I look forward to the Minister’s response and I beg to move.
Lord Wills (Lab)
My Lords, I rise to speak to the amendments in my name in this group, but I start by saying that I wholeheartedly support everything that the noble Baroness, Lady Sanderson, has just said. She made the case extremely well, and I hope that I will not replicate what she has already said, because she said it perfectly.
Amendment 122 derives directly from the remarkable achievements of the Hillsborough Family Support Group and how its members managed over decades of persistent, dignified campaigning finally to reveal the truth of what happened to their loved ones and secure some measure of justice. Such agency required quite extraordinary effort and dedication by all its members, and I believe that the Government need still to learn the lessons from such an historic endeavour.
This Bill seeks to tackle failures in process. Admirable as that is, it does not address, except indirectly, this crucial question of giving greater agency to the victims and bereaved. The value of giving such agency is demonstrated by what the Hillsborough Family Support Group achieved. As I said at Second Reading, the Bill owes relatively little to all the efforts of politicians and of lawyers and so very much to how that group campaigned with such persistence, not over years but over decades, and with such dignity while suffering such terrible loss. That is what drove my setting up of the Hillsborough Independent Panel, which finally got to the truth of what happened, and that is what drove the noble Baroness, Lady May, to support in the face of considerable opposition the work of the Hillsborough Independent Panel when she became Home Secretary. That is what led eventually to this Bill.
I hope that the Government recognise the advantages of giving the bereaved agency. If the Hillsborough Family Support Group could be replicated for significant numbers of the victims and bereaved in future public disasters like Hillsborough, so they could act collectively, that would deal with some of the problems of costs and delay that could well inadvertently flow from this Bill. It could, for example, reduce the number of lawyers that would be involved; quite apart from reducing the cost to taxpayers, which could run into hundreds of millions of pounds, it could help to produce a co-ordinated response from the victims of state failure, which would reduce delays in reaching resolution of the issues that would flow from that failure—and that matters.
As I have said previously during the passage of this Bill through your Lordships’ House, the interests of victims and the bereaved must be kept front and centre in the aftermath of state failure, and those interests can perhaps be summarised as: finding the truth about what happened and why, to find it quickly, and for accountability then to follow without delay. Without that, it is hard for them to find any kind of closure, and that must be a priority. The Independent Public Advocate is uniquely well placed to help bring about that collective endeavour, although the amendment makes it clear that this would be only with the support of the majority of the victims and the Secretary of State.
Trevor Hicks, the first chair of the Hillsborough Family Support Group, who served in that role for 16 years and then as president, and Jenni Hicks, the secretary and vice-chair for 30 years, until the group was wound up in 2021, are both willing to work with the Independent Public Advocate to share the lessons they learned in helping to create and drive forward that remarkable collective endeavour. Those setting up the Hillsborough Family Support Group consulted many of those bereaved in previous disasters, such as the Zeebrugge and Lockerbie disasters, and the lessons they learned to such remarkable effect provide a legacy for those they lost. I hope that the Government will now build on that legacy by giving greater agency to those who lose loved ones in future and recognise that funding legions of lawyers is not necessarily the only way of doing that.
All that is needed from the Government is a small amount of additional funding for the Independent Public Advocate, which, as the noble Baroness, Lady Sanderson, just pointed out, could well repay the cost. It could save many times more that in the legal fees that could be saved through such a collective endeavour. I understand this is perhaps a new thought for my noble friend the Minister, and if he is not immediately ready to support the amendment, I would be grateful if he could agree to meet me and the public advocate to discuss how best to move forward on this probing amendment.
I turn to Amendment 125B, which replaces the original Amendment 116. This derives directly from the achievement of the Hillsborough Independent Panel in revealing the truth about what was responsible for that tragedy. As the Minister who set it up, I faced widespread opposition from my own party. When I came to your Lordships’ House, the noble Baroness, Lady May, as Home Secretary, faced similar opposition in continuing its work. In our different ways, we were able to face down that opposition and the panel successfully completed its work.
It was uniquely successful in bringing some sort of closure to the tragic saga of Hillsborough. All credit is due to the chair, the Bishop of Liverpool, and all the panel’s members. It played a unique part in the administrative process. It was not an inquest with its specific remit, nor a public inquiry with its specific remit; both took place before the Hillsborough Independent Panel was set up and both failed to get to the truth. The Hillsborough Independent Panel was a fact-finding investigation with the ability to review all the evidence about what happened on the day and subsequently reach whatever conclusions it felt were justified.
A fact-finding exercise such as that would not supersede an inquest and would have to be subsequent to it. Nor need it preclude a public inquiry, although it should precede it, for the reasons that the noble Baroness, Lady Sanderson, gave. Preceding it could save taxpayers considerable sums of money; the Hillsborough Independent Panel cost £5 million or thereabouts and took two years to complete, compared to the hundreds of millions of pounds that so many public inquiries cost and the very many years they take to complete. Above all, it would ensure that the interests of victims and the bereaved were kept front and centre in the aftermath of state failure.
Nor would this amendment enable the Independent Public Advocate to supersede the wishes of the majority of victims of state failure or the decision of the democratically accountable Secretary of State. It would simply enable the Independent Public Advocate to act as the advocate for the victims of state failure and those bereaved by it to try to trigger such a fact-finding decision to get to the truth as quickly as possible.
The Hillsborough Independent Panel is the model, and it worked against all the odds, as both I and the noble Baroness, Lady May, can testify. Why would the Government rule out the possibility of lending their weight to replicate a success in delivering justice for the victims of state failure and those bereaved by it in the future? I make the same plea as the noble Baroness, Lady Sanderson, that all that is needed from the Government is a small amount of additional funding for the Independent Public Advocate to ensure that they are in a position to deliver immediately when the need arises. Apart from how it would help and support the victims of state failure and those bereaved by it, as I have said, it could save many times more money than the ever-escalating costs of a public inquiry, which would inevitably cover much of the same ground.
Again, if my noble friend is not in a position to agree immediately to this amendment, I would be grateful if he would agree to meet me and the Independent Public Advocate to discuss how we might make some progress on it.
Baroness Hamwee (LD)
My Lords, Amendment 118 is in my name. The noble Baroness, Lady Sanderson, has been remarkably thorough. I thank her for that, and I will try not to repeat too much. My amendment is more general and slightly differently focused from others in the group. I thank the noble Lord, Lord Alton, for signing it. I want to ensure that the Independent Public Advocate’s accumulated experience, ideas and views that she has gained from her work can be part of the mix and that the Secretary of State uses those in codes, guidance, regulations and so on, not only specifically with a particular major incident but to enable the IPA to be proactive and not contained in a little box. It is arguable that Section 35(2)(a) of the Victims and Prisoners Act covers this, but I am not convinced about that. Let the Independent Public Advocate be involved not only if the Secretary of State decides she should be deployed; my amendment mentions the Lord Chancellor as well as the Secretary of State—I hope I have that right because obviously the Lord Chancellor is also the Secretary of State for Justice at the moment, but that is the term used in some of the relevant legislation. The IPA has helpfully written to noble Lords. I am perhaps being a little more ambitious than she has been. She talks about improving transparency and confidence in deployment decisions by ensuring that she has the opportunity to make representations and that those representations are considered; I am going a little further. She has also written to the noble Lord, Lord Alton. We went to and fro over the wording of amendments on this issue. I hope he does not mind if I quote a bit of the letter, in which she says that she can “see real value in the IPA having a role in monitoring and reporting on compliance” and makes the point that: “Without some ability to access relevant information independently, it would be difficult to assess compliance in any meaningful way”. She also understandably, and frankly correctly, refers to the issue of resources, to which other noble Lords have referred. It is not up to this House, but we must will the means to enable her to fulfil the role that we all think that any IPA should be enabled to fulfil.
Lord Alton of Liverpool (CB)
My Lords, the noble Baroness, Lady Sanderson, said she was diffident about having to fill the shoes of her noble friend Lady May, but she did a very good job in explaining the terms of her amendment and the need to enhance the role of the Independent Public Advocate. I am also grateful to the noble Baroness, Lady Hamwee, for flagging up our correspondence during the Recess, which included the Minister, the noble Lord, Lord Lemos, and the noble Lord, Lord Wills. My interest in this began while serving as a member of the Joint Committee on Human Rights. We brought in a report calling for the enactment of the Hillsborough law, which is the public accountability Bill before us today. On becoming chair of the committee, I asked the noble Lord, Lord Wills, whether he and Cindy Butts, the IPA, would speak to the committee. It seemed to me that the role she could play might pre-empt the need for many of the public inquiries which we have heard so much about, many of which have run on for years and ended up failing to satisfy any of those who appeared before those committees, and some of which have cost huge amounts of money. It seemed to me that a more light-touch and fleet-of-foot approach by someone such as the IPA might render everyone a service. I was very struck by how engaged Cindy Butts is in this. As we have heard, in her first deployment she went to the Heaton Park synagogue in Manchester after the attack there and did a first-class job, but she also recognised that the involvement of the IPA was not necessary because all the statutory agencies had become involved and they were doing their job properly. This was not someone looking for more work; this was someone who understood what her specific and unique role is. I was also struck by what the noble Baroness, Lady Sanderson, said about how this role is unique to our own country. It has not been created elsewhere, and it is something we can therefore be proud of, just as we can be proud of all the work that went into the Hillsborough law and campaign and the various groups referred to by the noble Lord, Lord Wills, not least the work that Bishop James Jones and the independent panel conducted, which was so crucial. As the noble Lord said earlier, we would not have the Bill here now if it had not been for all that work. If we have learned anything from this, it is that we need more resources early on. It is worth repeating those figures: the office currently has only three staff and an annual budget of just over £500,000 and, as we have heard, the IPA role is formally part-time. It is impossible for someone on that kind of Cinderella budget—that kind of shoestring—to carry out the responsibilities that have been placed on them. Under the Victims and Prisoners Act 2024, the Secretary of State alone decides whether to declare a major incident and deploy the IPA. There is no requirement to consult the IPA or explain a decision not to deploy. That can create a risk of inconsistency and undermine confidence in the role. I wonder whether the Minister will address that specific point about the way in which the IPA is engaged on occasions when it becomes necessary, and whether he agrees with the proposition that has been advanced by everyone that the central purpose should be to prevent investigations into major tragedies.
From talking to the independent advocate, I will mention three particular concerns she has that she would like to see incorporated by your Lordships. First, she would like us to recognise the Independent Public Advocate within the statutory candour framework, including by ensuring that relevant public bodies owe a duty of candour to the IPA when she or he exercises their statutory functions. Is that something the Minister agrees with? Secondly, she would like to see a strengthening of the IPA’s operational resilience through appropriate staffing, budgetary allocation and making the role full time. Is that something the Minister agrees with? Finally, she would like us to improve transparency and confidence in deployment decisions by ensuring that the IPA has an opportunity to make representations, that those representations are considered and that a short rationale is published where the decision is taken not to deploy.
I know that Cindy Butts believes that the Bill presents an opportunity to get this right for victims, survivors and bereaved families. That is something with which I entirely concur. I hope that, even though the Bill does not give us an opportunity to make those things happen—as the noble Baroness, Lady Hamwee, said, we do not have the right to will the means; nevertheless we can express our views—the Minister can take those views back to his colleagues in the Treasury.
Lord Roe of West Wickham (Lab)
My Lords, I promise I will be brief because I know we are approaching dinner break business. I thank my noble friend the Minister for the amount of time he has given to this group of amendments; he has really been very generous, particularly across recesses. He has met me and almost everyone else who has spoken, and with Cindy Butts, who many of us have also met. I strongly support Amendment 9 and recognise that there is a rightful debate to be had in the further stages on the Bill around some of the more complex areas of funding and resources. While it is relevant, it needs discussion. I want to go back to my personal interest in this Bill, which is in my practical experience of responding to and dealing with the aftermath of significant disasters. Putting the IPA in the Bill would give someone who victims—whether bereaved or survivors—can turn to in the immediacy of an aftermath, when even agencies that operate effectively, but are themselves under immense pressure, make well-intended decisions but may not know what other agencies are doing and will not automatically connect information up for victims and families. This can be very basic stuff; it is not just about candour in the context of people doing something wrong. Think about Grenfell: it took a long time for some of those who lost their families to find out whether people were in hospital. That is a really good, practical example of where the IPA could step in, where it was almost impossible to convene the other agencies with any power. I will not say any more. I just make the point that I support the amendment and a deeper discussion on the other amendments in this group, because there is currently a gap that the IPA can usefully fill to the benefit of those who suffer the most in the immediate aftermath of a tragedy.
Lord Wolfson of Tredegar (Con)
My Lords, I can be brief as my noble friend Lady Sanderson of Welton made a clear and persuasive case for progress on strengthening the role of the Independent Public Advocate. I know the Minister has already expressed some sympathy for the inclusion of a role for the Independent Public Advocate in the Bill. The key point is that we should get to the truth as quickly and as efficiently as possible, without, we hope, the need for costly and long-winded inquiries when they are not needed. As I understand it, that principle underpins all the amendments in this group. I look forward to the Government taking this issue away and coming back with what I hope will be a workable proposal. This was discussed at Second Reading. The Government now face the formidable triumvirate, if you can have a triumvirate where two-thirds are women—I think you probably can—of my noble friends Lady May of Maidenhead and Lady Sanderson of Welton and the noble Lord, Lord Wills. I therefore look forward to the Minister, who has shown willing on this point, engaging with them and others in the hope that we can get to a reasonable position on this important issue.
Lord Lemos (Lab)
I start by thanking all noble Lords who have spent time with me on this issue, in particular the noble Baronesses, Lady Sanderson and Lady May, who have been extremely generous with their time. The noble Lord, Lord Wolfson, is absolutely right that this is an area where the Government and I feel strongly. We will work together on it. I want to set out properly the responses to the amendments, but we will undertake to take this forward. The Government fully recognise the importance of openness, transparency and accountability following major incidents. Victims and bereaved families must be able to have their voices heard and have confidence that public authorities are acting appropriately. The Independent Public Advocate plays an essential role in achieving this—I make that absolutely clear. The role of the IPA was deliberately designed as a victim support and representation function complementing existing investigative mechanisms. These would otherwise be duplicated. We would also want the IPA to be involved as promptly as possible—a number of noble Lords referred to this—as inquests and inquiries may not take place immediately. I made this point at Second Reading: early support for victims, the bereaved and family members is vital in the aftermath of a major incident. Timely deployment of the IPA is therefore essential to ensure that support is available from the outset and to help mitigate the impact of delays before formal proceedings begin. A number of noble Lords mentioned whether the deployment of the IPA at an early stage would save costs on inquiries. Perhaps it would and perhaps it would not, but it seems to be a good thing to do in itself. I certainly would not align myself with the view that the reason to deploy the IPA is to save money on public inquiries. I therefore think we need to be clear about the issue of principle here. However, these amendments would significantly expand the standing advocate’s role by introducing investigatory functions and requiring the advocate to assess whether these are reasonable grounds to believe that legal duties may not have been complied with. The Government’s view is that establishing the facts of a major incident and determining whether legal duties have been complied with are rightly matters for existing investigative and accountability mechanisms.
Lord Wills (Lab)
With great respect to my noble friend, that is not the intention of these amendments. It is not to replace those authorities; it is to trigger that investigation. I made it clear in my remarks that the decision would be for the democratically elected Secretary of State and it would happen only after a majority of the families wanted it. It would therefore give agency to the families but the ultimate decision would lie with the Secretary of State.
Lord Lemos (Lab)
I thank my noble friend for that. The Government’s concern is that we do not want to duplicate or confuse existing investigative routes, but I entirely accept my noble friend’s point about deployment; the noble Lord, Lord Alton, made the same point. I will come back to that point in a moment, if I may. The Independent Public Advocate already has powers to engage with victims, understand and communicate their concerns, and ensure that their interests are represented to relevant authorities throughout the aftermath of a major incident. The IPA already has a statutory responsibility to advise Ministers on the interests of victims and has the power to publish reports on matters arising from major incidents. A number of noble Lords asked how, as it were, she can make her voice heard once she has heard from the families and the victims. We believe those powers already exist in the existing framework. We believe that the existing arrangements provide the standing advocate with flexibility to carry out those functions without requiring an additional provision in the Bill. Turning to the amendment of the noble Baroness, Lady Hamwee—
Lord Wills (Lab)
I hope noble Lords will forgive me; I know we are running well over time, but I really want to pick up the Minister on this crucial point. There is a fundamental difference between what the Minister has just said already exists and what these amendments would achieve. They would put the Secretary of State on notice that, if the Independent Public Advocate, after consultations with the bereaved in the immediate aftermath, felt there was a need for investigation, if the Secretary of State did not agree with that, they would have to make an Oral Statement to the House of Commons, during which they could be questioned on why the Secretary of State thought the existing mechanisms were adequate and why what the Independent Public Advocate thought, from her connections with the families, was not. That is the point: it makes the Secretary of State accountable. At the moment, the existing provisions mean that they could just be ignored.
Lord Lemos (Lab)
I understand the point that my noble friend is making—or at least I think I do—but I am very happy to meet with him and others, including Cindy Butts, to deal with this point. The legislation also already provides the standing advocate with interested person status at inquests for major incidents to which the IPA has been appointed. This was a policy choice made during the passage of the Victims and Prisoners Act, recognising the advocate’s role in supporting and representing the interests of victims, survivors and bereaved families within those proceedings. Parliament chose not to include a broader participatory role at that point. The amendment refers to the advocate having a role in all inquiries, investigations and inquests where public authorities or public officials are, or may become, participants. The IPA’s role is entirely linked to major incidents. Therefore, it would not be appropriate, in the Government’s view, for the IPA’s role to be expanded beyond major incidents as proposed in the amendment, as it was not intended or designed for this purpose. There is of course a clear opportunity to review the role of the IPA. The noble Lord, Lord Alton, and other noble Lords discussed the arrangements for deployment. That review is imminent; it will take place in 2027, and we will review those arrangements then. I am sure that all noble Lords agree with us that the advocate is given time to establish her role and office before that review takes place. The Government also retain the ability to revise existing guidance in light of operational experience, should that prove necessary. Amendments 9 and 125 seek to confirm that the duty of candour applies to any dealings that public authorities and public officials may have with the Independent Public Advocate, and to provide the Independent Public Advocate with adequate functions to carry out certain tasks related to the Bill. I can see the noble Baroness, Lady Sanderson, smiling; I think noble Lords know that Ministers like me, giving commitments at the Dispatch Box to fund other bodies, do not go down well with the Treasury. I know that various business cases have already been put in by the IPA and are being considered by my colleague Minister Davies-Jones. We will take that forward. I do not think that the noble Baroness would expect me to go much further than that, although she eloquently made the case for me to do so. For similar reasons, we do not consider it appropriate to require the standing advocate to monitor and report on compliance with the provisions of the Bill. This would represent a significant expansion of the advocate’s role and could create overlap with ongoing or future investigations. The standing advocate already has powers to publish reports, raise concerns about the treatment of victims and bring matters to the attention of Ministers and the public. In conclusion, as I have already indicated, we will continue to discuss these matters with all interested Peers, including the noble Baroness, Lady Sanderson, my noble friend Lord Wills and my noble friend Lord Roe, who has been a robust and con brio participant in the discussion so far. As the noble Lord, Lord Wolfson, said, I hope we can make some progress on this before Report. With that, I ask noble Lords not to press their amendments.
Baroness Hamwee (LD)
I am not sure whether the Minister replied to or commented on my amendment. He started to say, “In response to Lady Hamwee” and then the noble Lord, Lord Wills, came in and asked a question; I think he responded more to the noble Lord than he did to me. Perhaps I can leave the Government to think about whether the IPA’s general experience is something that the Secretary of State must bear in mind when creating guidance and so on. It is a broader, different point from those that others have been making.
Lord Lemos (Lab)
I apologise for not picking it up; I went down another road. I take the point that the noble Baroness makes. In the discussions we are about to have, we will take on that wider conversation as well. I hope that she will join us in that.
Baroness Sanderson of Welton (Con)
My Lords, I would like to thank all noble Lords who have spoken in this debate. It was remiss of me not to thank the Minister earlier for all the time he gave us over the Recess, for which we are very grateful. I am not going to detain the Committee; the noble Lord, Lord Roe of West Wickham, who has so much experience, kept his remarks brief, so I feel duty bound to keep my remarks brief. I am just going to say that it is slightly disappointing, because I feel that we are going back to the comments that we heard two years ago on the then Victims and Prisoners Bill, which is that the IPA is fine and is essentially a signposting role. Actually, it is more than that, it can be more than that and it should be more than that in the context of this Bill. All the amendments that we have heard today have shown just how central the IPA is to how this Bill is going to work on the ground as the only person representative of the people affected. So, if the Minister is willing, there are more discussions to be had before we potentially bring this back on Report, but until then I beg leave to withdraw my amendment.
Amendment 9 withdrawn.
Clause 2 agreed.
Schedule 1: Application of duty of candour and assistance
Amendments 10 to 14 not moved.
Amendments 15 and 16
Moved by
15: Schedule 1, page 38, line 36, at end insert— “(1A) In Schedule 1 (duty or power to suspend or resume investigations), in paragraph 6, after sub-paragraph (2) insert—“(3) The duty of a senior coroner to give a compliance direction under paragraph 2A of Schedule 5 in respect of an investigation does not apply at any time during which the investigation is suspended under this Schedule.””Member's explanatory statement This amendment clarifies that a duty on a senior coroner to give a compliance direction under new paragraph 2A of Schedule 5 to the Coroners and Justice Act 2009 (inserted by Part 4 of Schedule 1 to the Bill) does not apply during times when an investigation is suspended under Schedule 1 to that Act.
16: Schedule 1, page 41, line 10, after “evidence)” insert “— (a) in paragraph 6, at the end insert “or a direction under paragraph 2A of that Schedule”;Member's explanatory statement This amendment would enable a senior coroner conducting an investigation under the Coroners and Justice Act 2009 to issue a fine of up to £1000 for a failure to comply with obligations under the duty of candour and assistance.
Amendments 15 and 16 agreed.
Amendment 17 not moved.
Schedule 1, as amended, agreed.
Clause 3: Section 2: further provision
Amendments 18 to 20 not moved.
Clause 3 agreed.
Clause 4: Extension of duty to other persons with public responsibilities
Amendment 21
Moved by
21: Clause 4, page 4, line 19, after “authority” insert “or as any subcontractor in any chain of provision to a service provider” Member's explanatory statement This amendment, together with Lord Marks’ amendment to page 4, line 28, ensures that any person involved in providing a service to a service provider which was subcontracted will fall under the duty to comply with the duty of candour and assistance to an inquiry or investigation.
Baroness Brinton (LD)
My Lords, I am very grateful to Spotlight on Corruption for its briefing. Amendment 21 is in the name of my noble friend Lord Marks of Henley-on-Thames, who cannot be in his place today, and I have also signed it. We both mentioned at Second Reading our concerns that the Bill, as drafted, might not include all the different levels of subcontractors that are frequently found in today’s public authority organisations. All the other amendments in this group—Amendments 22, 49, 142 and 143—are in our names and build on Amendment 21 to ensure that subcontractors of all types will be caught by the Bill. In Clause 4(3)(b), the Bill says: “a person carried out activities as a ‘service provider’ to a public authority if the activities were carried out under a direct contractual relationship with the public authority”. The Bill is a very welcome step towards implementing the recommendations from the Law Commission to place the misconduct in public office offence in statute. Reflecting widespread criticism of the common law offence, the Law Commission found serious shortcomings in its effectiveness for prosecuting wrongdoing in the public sector and recommended specific statutory provisions to update the offence. The Law Commission specifically recommended that contractors who exercise functions or perform work for the Government should be covered by the offence. With private goods and services representing 30%, or around £326 billion, of government spending, it is critical that private contractors are covered to ensure meaningful accountability where misconduct occurs while performing public services. The Law Commission recommended that, to achieve this, the list of public officeholders should clearly include “contractors who exercise functions or perform work for the government”. This language is not included in Schedule 4 to the Bill, despite the Government’s impact assessment specifically stating that the definition of the public officeholders includes “private contractors providing public services for any of the public bodies listed”. The current formulation of Clause 21 risks introducing too narrow a formula and lacks legal clarity as to when private contractors and subcontractors are included. In addition, the language in the Bill is directed clearly at individuals, and there is no explicit corporate liability provision within it. If private contractors are to be clearly caught by the Bill, it should be beyond doubt that the offence in Clause 12 can be committed corporately, with accompanying consent and connivance liability for company officers as in the Bribery Act. Current practice in many public authorities is to contract out services, but the services may also be contracted out further beyond the initial tier. One example that springs to my mind is that of the current practice among local authorities to have a principal director contractor for repairs to roads and highways. It is not uncommon for elements of the contract to be sublet a number of times, so that the highways organisation may not even be aware of the companies right at the roadside, because they are five, six or even further layers of contract below the initial direct contractual company which had the contract with, in this case, the local authority. To be clear, on this example about public authorities’ subcontracting practices, I am not aware of any particular problems with highway agencies, whether there are some or not. However, we know that these hierarchies of contract have happened in PFI contracts too, which means that the NHS should be covered. That is where these amendments come from. The hour is late, and I suspect that we cannot do the issue the justice we want to. But it is important that the layers of subcontractors are caught by this, because if there is a hospital porter who is subcontracted for down the line and does not have any responsibility or whistleblowing duty in their organisation, we could end up with parts of the Bill not being able to work properly, purely because of the contractual arrangements. I beg to move.
Lord Keen of Elie (Con)
My Lords, I thank the noble Baroness, Lady Brinton, for moving the amendment on behalf of the noble Lord, Lord Marks of Henley-on-Thames. I understand the desire for the definition of public authority and public official to clearly include subcontractors of various kinds. I understand the Government’s definition to draw on the Human Rights Act case law and to include bodies that have public functions, while excluding the private functions of those bodies. We on these Benches are not satisfied that expanding the definition is required, but we will continue to listen carefully to the arguments made by noble Lords as the Bill progresses through your Lordships’ House. I wish to raise certain concerns with the Minister with regard to the Government’s attempts to ensure that the application of the duty of candour to non-governmental organisations will not have unintended consequences. In particular, bearing in mind the cost involved in government procurement, to what extent have Ministers engaged with, first of all, potential contractors to the Government as to the cost and impact of these provisions on their attempts to carry out government contracts? Secondly, what engagement has there been with existing contractors to the Government to determine what they consider to be the potential impact on their discharging of existing contracts by reason of these duties being placed upon them? Over and above that, what assessments have been made of the potential cost to government contractors for the legal advice and related advice that they as businesses will require, their employees will require and their own subcontractors will require in determining the consequences of being subject to the duties in the Bill? I would appreciate it if the Minister could either address those points in his response or undertake to write to me.
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.
Baroness Brinton (LD)
My Lords, I am very grateful for the comments of both the noble and learned Lord, Lord Keen of Elie, and the Minister, even though I and, I am sure, my noble friend Lord Marks would disagree with them. Given the comments made by the Minister about the Government giving consideration to some alternative, I wonder whether it is worth meeting between Committee and Report. I am grateful to the Minister for assenting to that; I presume that the noble and learned Lord, Lord Keen, would quite like to be there as well. With that, I beg leave to withdraw the amendment.
Amendment 21 withdrawn.
Amendments 22 and 23 not moved.
Clause 4 agreed.
Clause 5: Offence of failing to comply with duty
Amendments 24 to 27 not moved.
Clause 5 agreed.
Clauses 6 and 7 agreed.
Amendment 28
Moved by
28: After Clause 7, insert the following new Clause— “Police records: Public Records Act 1958Within 12 months of the day on which this Act is passed, the Secretary of State must lay before Parliament draft legislation proposing how, for the purposes of compliance with this Act, records of police conduct in England and Wales can be brought under the supervision of the Keeper of Public Records, including by amending the Public Records Act 1958.”
Lord Faulkner of Worcester (Lab)
My Lords, Amendment 28 refers to police records in England and Wales and the need for them to be brought under the supervision of the Keeper of Public Records. This was the subject of my speech at Second Reading. On 7 October, my noble friend Lord Lemos was kind enough to write to me about my Second Reading speech and about this amendment. In his letter, he said that the Government recognise the Hillsborough Independent Panel’s recommendation to place police records under legislative control and the strength of concern that important records must not be lost. However, he also offers us a reason for not including police records under public records legislation: that police hold large volumes of sensitive records requiring clear rules on selection, transfer, digital capability, archive capacity, security access, data protection and institutional responsibilities. It seems that these are the very reasons why they should be covered by legislation and not, as currently, by codes of practice and guidelines, which are not compulsory and contain multiple uses of “should” and “could” rather than “must” and “will”. At Second Reading, I quoted the chilling words of the former chief constable of South Yorkshire, Mr Meredydd Hughes, who was in a telephone conversation with the family of one of the Hillsborough victims. He said that he could take the records into the courtyard and burn them. He said he was under no obligation to disclose anything and that the papers belonged to him. He may just have been engaging in angry rhetoric, but what has taken place during the period in which these codes and guidelines should have been operated were a number of instances where inconvenient records were destroyed by mistake. Your Lordships can judge for yourselves whether “by mistake” can be taken at face value. Although there are some shining examples of police forces employing qualified archivists and records managers, there are few of them. Record-keeping is largely unprofessionalised in the police service. More often, filing and dealing with the archives is left to admin staff and officers who are taken off active duty. The command and control nature of police work means that these workers are unlikely to question a command to destroy records. A professionally qualified record-keeper would at least have the status to question that instruction and point out with confidence where it did not meet guidelines, codes or common practices of archiving and records retention. Without putting record keeping in the police forces of the England and Wales on a statutory basis, there is no impetus for them to professionalise their workforce or to take more care not to make these mistakes. Since 2023, the Information Commissioner’s Office has issued formal reprimands or enforcement notices to at least eight police forces and law enforcement agencies in England and Wales, alongside several individual reprimands or notices, and police forces and law enforcement agencies have been heavily represented in regulatory action. These include the Metropolitan Police, the City of London Police, Greater Manchester Police, and forces in south Wales, the west of England, Kent and South Yorkshire. Most of those have been censured or reprimanded for severe subject access request delays, accidental deletion of body-worn video or unauthorised data messaging app usage. In addition—this is particularly worrying—Northumbria Police deleted material relating to the policing of the Orgreave miners’ strike just weeks before the Orgreave inquiry was formally set in motion. It does not seem that the guidelines and code are working. Why should we wait even longer and see more records destroyed when we can move to a better solution? I beg to move.
Lord Wills (Lab)
My Lords, before I turn to the amendments in my name in this group, I will say how much I agree with everything my noble friend just said. If the Government can accept his amendment it will go quite a long way to help the Bill deliver its objectives. Without it, there has to be a question over it, so I very much hope the Government will look sympathetically at what my noble friend just said. I turn to the amendments in my name. Amendment 33 again addresses what must be the overriding objective of the Bill, which is always to keep the bereaved and the victims of state failures front and centre of everything that happens. That is why, of course, it is known colloquially as the Hillsborough Bill. As I keep saying, the objectives must be to find the truth quickly—how and why this thing happened—and then for accountability to follow without delay. Delay is the crucial problem so often in these things, making it incredibly hard for the victims and the bereaved to find any kind of closure. That must be a priority of every process that goes through in the wake of these state failures. That is what has always been denied for so long to the victims of these disasters and was so criminally delayed for the Hillsborough families. Part of the problem—not the only part—is the protracted nature of public inquiries that almost inevitably follow failures by the state. They investigate what happens and determine accountability, but the problem is that they do not do it quickly. They cannot, because part of their job, as well as investigating the issues of direct concern to the immediate victims of such state failures, is seeking to learn the lessons for public policy in the future. As a result, they can and do take many years and cost hundreds of millions of pounds. I agree with the Minister when he says that cost must not be the priority here, but it is a consideration. Therefore, there must be a question about whether public inquiries are always fit to meet the purposes of this Bill. This amendment simply requires the Government to address that question. Amendment 107 seeks to address the concerns of many victims of state failure: that the offences introduced in the Bill might be too lenient. These offences replace those which exist elsewhere and the sentencing limits for those offences match the Law Commission’s recommendations. I accept that. However, I hope my noble friend the Minister will recognise that the new sentences will often appear to victims of these offences as inappropriately lenient compared with those currently in effect. For example, some Hillsborough families expressed their view to me that after all the suffering they have inexcusably endured—not for years but for decades—as a result of such offences, a maximum two-year prison sentence minimises the seriousness of the offence. In these circumstances, this amendment would require only that these sentences are kept under review, assessed in the context of the severity of the offences committed and the consequences for those affected by them and, where appropriate, revised to act as the deterrent that they are intended to be.
Baroness Brinton (LD)
My Lords, I am grateful to the noble Lord, Lord Faulkner, for his Amendment 28, which I have signed. I agree with everything that he said. My Amendment 5 in an earlier group followed the same principles, as did some of the amendments tabled by the noble Lord, Lord Wills, in that group, focusing on not just the police but other bodies that need to keep records. However, police records have repeatedly been a problem, so it is important that they are highlighted. Amendment 109, tabled by my noble friend Lord Marks, which I have signed, sets out the monitoring of compliance with the duties under this Act. All afternoon and evening, amendments have tried to improve the Bill to ensure that it will work. However, this amendment and some of the others in this group set out how we can judge whether it has worked—including Amendment 105, tabled by the noble Lord, Lord Alton, and Amendments 33 and 107, tabled by the noble Lord, Lord Wills. Amendment 109 says that the Secretary of State must commission and publish annually an independent report which monitors compliance—including the record-keeping by public authorities, disclosures and responses—and look at the effectiveness of sanctions and enforcement to help public authorities and their officials carry out their roles. Why is this important? Rather than looking at disasters that have happened in this country, two examples from elsewhere will give us the answer. We will not know how culture change has happened, because you cannot judge that easily. How on earth can you monitor that? When mandatory reporting of child sex abuse was introduced into a number of states in Australia, there was alarm when, initially, case numbers rocketed. However, data also showed that the comprehensive staff training had enabled staff to feel that they could report concerns about possible incidents to the person to whom they should in their organisations. That was a real culture shift. It was a combination of soft work and mandatory reporting. We are beginning to introduce that in this country—not quite as I would like, but this way you have both. You can judge that, but you have to look at some of the softer data as well as the hard data. The other example I have mentioned before. When a major incident occurs in this country, things move horribly slowly. In France, it became clear in the early 1980s that some hospitals were giving people, mainly children with haemophilia, infected blood. Immediately, the French judicial system intervened and three Ministers and two doctors were prosecuted. One Minister and one doctor were found guilty; the others were not. More importantly, at the same time the Government immediately stopped buying blood from the USA, setting up their own systems to become self-reliant and ensure the purity of blood. There was no need for any review because the system had worked. I am not suggesting that we move to the French judicial system, but the point is that there was no attempt to hide anything, because the culture in France is that, if there is a problem, you need to sort it. That has happened, though not entirely without problems. But it took us another 15 years to get our own blood system set up. It has taken two full public inquiries and we are still not there, 50 years on. Our amendment asks how we will know that it has worked. I hope that we have set that out. I hope that in the short term it will give us the good news that it is working—the Australia example—and that in the longer term we will wonder why on earth it was needed because our system will resolve the issues before we even need an inquiry.
Lord Alton of Liverpool (CB)
My Lords, all around the Committee noble Lords are listening to arguments for looking at how the Bill works out in practice. My Amendment 105 adds to that. It has been supported by the noble and learned Lord, Lord Hope of Craighead, and my noble friend Lady D’Souza. It would insert a new clause after Clause 20 which would review the effectiveness of the Act. Within 18 months of the day on which the Act is passed, the Secretary of State would have to lay before Parliament a review of the effectiveness of the Act and draft legislation, if necessary, to amend the Act or regulations to address any shortcomings or improvements that might be identified. All of us know the value of post-legislative scrutiny, but we do not do enough of it. This amendment seeks to do it. It sits comfortably with the arguments advanced to the Committee by the noble Lord, Lord Wills, in Amendment 107. It asks us to wait and see how things work out and then see how we might improve the measures further. This is not a wrecking amendment but one designed to examine how this has worked in practice and then do something to put right any deficiencies that we might discover.
Lord Wolfson of Tredegar (Con)
My Lords, this is the last group for debate today so I will not speak at length. As the noble Lord, Lord Alton, has just said, there is a large measure of agreement across the Committee on the need for some post-legislative scrutiny. In our meetings with the Minister, he assured us that the Government will review the effectiveness of the legislation post implementation. That is very reassuring. However, a number of the amendments in this group seek a more formal process of review that will give the public and Parliament an opportunity to see what the Government’s own assessment is of the success of the Act. This is a complex and sometimes technical piece of legislation. Therefore, there is a good case for a more formal review process after the passage of the Bill into law. I am not sure whether we ought to bind the Government to bring forward draft legislation in the way proposed by the amendment put down by the noble and learned Lord, Lord Hope of Craighead. I hesitate to differ from the noble and learned Lord when he is here, and I hesitate even more to differ when he is not here, even though he was ably represented by the noble Lord, Lord Alton, but I am not sure that binding the Government to bring forward draft legislation is the way forward. I hope that we can work together to find a robust mechanism to allow us to return to look at this legislation, following a proper review, and to give Parliament the opportunity to address any deficiencies. Of course, I will listen carefully to any further indications the Minister may have in this regard.
Lord Lemos (Lab)
My Lords, I entirely share what the noble Lords, Lord Wolfson and Lord Alton, said. The principle that I think we are all agreed on is the need to have appropriate post-legislative scrutiny at the right time and I will come to that very briefly in a moment. Before I go to that though, I will briefly explain the technical government amendment in this group. The existing provision in the Bill disapplies only the special orders dealing with hybrid instruments for draft affirmative instruments. Government Amendment 138 ensures that “the de-hybridising provision in Clause 24(12) will apply to all affirmative instruments laid under the Bill”. Amendment 105, and the amendments on post-legislative scrutiny generally, would require the Secretary of State to publish a review within one year of the Act receiving Royal Assent and publish proposed legislation to address any deficiency. Amendment 107 has a similar intent of a review of the Act within one year, and Amendment 33 would require the Secretary of State to publish a review of the Inquiries Act in relation to the requirements under Section 1 of this Act. As I have said, the Government absolutely share the view that when legislation such as this is brought forward, we must assess its effectiveness. All the measures in the Bill will affect a large number of individuals and organisations, and time will be needed for training and implementation. It is highly unlikely that we will be in any position to properly assess the effectiveness of the Act as a whole within a year, and I think the noble Baroness, Lady Brinton, acknowledged the difficulties of that. As set out in our impact assessment, the Government are committed to conducting a limited review of the impact of the misconduct in public office measures on those public office holders subject to them. This will be 12 months after the measures come into force. We agree, therefore, that it would be wise to review how the other offences operate, but, more importantly, whether all the measures have operated as we intended and whether any changes are needed. We think this is an appropriate timeframe for the misconduct in public order offences, which are already common-law offences; however, more time is likely needed for brand-new offences and measures. Amendment 125A from the noble and learned Lord, Lord Keen, explores whether a longer period, including two years, might provide a more appropriate timeframe for review. I can assure the Committee that we are sympathetic to that and that we will actively consider it, along with other suggestions from noble Lords, and work on this point with your Lordships ahead of Report. Regarding the proposal from the noble Lord, Lord Marks, which was signed also by the noble Baroness, Lady Brinton, to require an annual independent report, we are exploring all these post-legislative scrutiny suggestions and the best way of achieving what I think this amendment seeks. I will set out proposals in due course, and of course I make the same offer that I always do to discuss this ahead of Report. Lastly, I turn to Amendment 28 tabled by the noble Lord, Lord Faulkner of Worcester. This amendment raises the important issue of proper management, preservation and accessibility of records relating to policing and police conduct. The Government recognise the Hillsborough Independent Panel’s recommendation to place police records under legislative control and the strength of the concern that important records must not be lost. We have taken tangible action in response. My noble friend Lord Faulkner referred to an exchange of letters and with his permission I will circulate that correspondence to the Committee, because it deals in some detail with a number of the other points that he made. If he will forgive me, in the interests of time, I will not go through every point in detail, but we will circulate the letter which covers that ground and we can debate it further if necessary. Any regime must preserve records of enduring value while ensuring personal data is retained only when necessary and justified. The Government believe the right response is to continue strengthening police records and management, to assess the 2023 code and to consider arrangements for new national policing bodies. With those comments, I ask my noble friend Lord Faulkner to withdraw his amendment.
Lord Faulkner of Worcester (Lab)
My Lords, I am most grateful to my noble friend the Minister for his response. I hope he will agree that it would make good sense for us, and possibly the Archives & Records Association, to meet him and his officials, perhaps along with Members of your Lordships’ House who are interested in the subject, to see whether there is some way in which we can get the police records more firmly established as public records and protected, because I am not satisfied, and it is clear that my noble friend Lord Wills and the noble Baroness, Lady Brinton, are not satisfied, with the existing arrangements. Neither indeed, I suspect, is the Prime Minister, who wrote to Amber Rudd, the then Home Secretary, in July 2016 saying that “future researchers must have a guaranteed right to access the maximum range of police records and the police themselves must be obliged to preserve their records for public accountability purposes”. I hope that in some way we will be able to arrive at a consensus—there has not been a lot of consensus in the debate this evening—and that we will get to a point where police records are covered properly. But with that, and with the possibility that we can come back to this matter on Report, I beg leave to withdraw the amendment.
Amendment 28 withdrawn.
Amendments 29 and 30 not moved.
House resumed.
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