Public Office (Accountability) Bill (Third sitting)

Alex Davies-Jones Excerpts

Tuesday 2nd December 2025 Public Bill Committees

[The Chair]

With this it will be convenient to discuss new clause 2—Public interest—

“(1) Within six months of the passing of this Act, the Secretary of State must define in regulations what constitutes the ‘public interest’ for the purposes of—

(a) Section 1(1)(a),

(b) Schedule 1(8)(b).

(2) Regulations under subsection (1) may not be made until a draft has been approved by both Houses.”

This new clause would require the Secretary of State to define public interest for the purposes of this Act by regulations.

[The Parliamentary Under-Secretary of State for Justice (Alex Davies-Jones)]

It is a pleasure to serve with you in the Chair, Sir Roger, on this historic and momentous Bill Committee. With your permission, I will say a few words about just how momentous this is.

Last week, this Committee heard evidence directly from the Hillsborough families about the Bill and what it means to them. I know that the Committee will agree that that was a huge privilege for us. The Bill is of great and national importance to so many people up and down the country, and we will not play politics with this legislation. I hope my colleagues in the Opposition will do the same. What we will do is listen: we will listen to the families, Hillsborough Law Now and the members of this Committee. It is right that they and the Committee push us and challenge us. They have my commitment that if we can find ways to improve the Bill, we will.

Finally, I pay tribute to my hon. Friend the Member for Liverpool West Derby and my right hon. Friend the Member for Liverpool Garston. They have each tirelessly campaigned for justice for the Hillsborough families, and played no small part in seeing this legislation brought forward. I am honoured to have them by my side in Committee.

Of course, we have all said this time and again, but we would absolutely not be here without the families. This is for them, and for those who have campaigned tirelessly for so long to seek justice and to ensure that no one ever has to go through what they went through. This is not just for the Hillsborough families, but for anyone who has experienced cover-up or had to fight for the truth, and for the memories of all those who are no longer with us.

[Dr Kieran Mullan (Bexhill and Battle) (Con)]

It is a pleasure to serve under your chairmanship, Sir Roger. As we consider the clause and new clause 2, I want to be clear that the Opposition recognise the importance of the Bill’s overarching aims. Candour, transparency, frankness and, above all, the requirement that public officials act in the public interest are principles that I am sure Members from all parties support.

As we commented on during evidence sessions about the chief coroner, it would be quite wrong to portray good-faith efforts to ensure that we give due consideration to each and every possible implication of the Bill as in any way not giving due regard to its noble aims, in particular the considerable effort and good intentions of the many campaigners supporting it, including the ones we heard from during the evidence sessions. As the Minister commented, I do not think that anyone could have been anything but deeply moved and reflective on hearing the experiences that the witnesses went through in such appalling circumstances. They were a limited group, but one made up not just of those affected by Hillsborough but those affected by many other scandals in which the state and its bodies covered up and mistreated people.

Ultimately, even if we believe that the Bill could be improved, and we will hold the Government to account for any unintended consequences, we support the Bill and do not expect to oppose it on Third Reading. I hope that that is an important message for the campaigners supporting it. However, we want to probe the Government’s thinking and suggest possible improvements.

Before we come to the specifics of our new clause, I will comment on clause 1 as a whole, as it lays out the core purpose of the Bill and highlights just how far the political class as a whole has to come in delivering candour, and how contentious these matters can be. In the very weeks we have been considering this Bill, with the Government professing to want to drive further improvements in the candour and frankness of accountability, we have been having a heated and highly contested public debate about what constitutes candour and frankness. I raise that debate not to further discuss it in Committee—it would not be appropriate to engage in it for its merits—but just to highlight exactly how contentious such things are. We have a Chancellor who, in my view, has clearly failed to operate with candour and frankness, but I am sure that view is fiercely opposed by other members of the Committee.

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[Dr Mullan]

Thank you for that further clarification, Sir Roger.

These issues are absolutely live and happening all the time—this week alone, we have seen examples of it—and we need to understand the implications of the Bill. I am far from alone in recognising the difficulty in defining terms such as “candour” and “public interest”. John Coggon, professor of law at the University of Bristol law school, writes:

“The public interest has no single, fixed definition. Even as a technical term of art its sense varies both for being context dependent and for being a question that may be settled by different sorts of institutional actor. It may, for instance, demand consideration of national security, national economic interest, protection of health, maintenance of a justice system, protection of fundamental rights. And determinations may be made by courts, politicians, legislators, executive agencies, and so on. Each can and will bring different forms and ranges of consideration to the process of determining what the public interest demands, and whether those demands are compelling.”

Anyone who has spent any time inside a public body—a police force, a regulator or a Government Department—knows that the public interest can mean very different things to different people. It is shaped by context, role, circumstance and sometimes professional norms. What one official believes to be in the public interest, a Minister, senior civil servant or statutory body might see very differently. That is not mere theory; it is the daily reality of modern governance.

Questions were raised during the evidence sessions about how the public interest might be used inappropriately in defence of an allegation of misconduct in public office. As new clause 2 points to, paragraph 1(8)(b) of schedule 1 specifically allows for the withholding of information in the public interest. Failing in that area could lead to both those we would wish not to be prosecuted being prosecuted and those we want to see prosecuted escaping justice. It is an important area of how the Bill will operate.

I am not so ambitious as to suggest that through the Bill the Committee will be able to create a perfect definition of public interest, but I speak in support of the new clause in an attempt to ensure that the Government recognise that they need to properly engage with that issue if the Bill is to be successful. A definition of the public interest need not be exhaustive, as I have said, but the wide-ranging ramifications of the Bill place an onus on the Government to ensure that the frontline civil servant of any kind has somewhere to look and turn to when wrestling with these matters—a starting point that might help them to structure their thinking and make decisions.

By failing to define the term at all, even in the most basic way, the Bill risks giving us a duty that is challenging to operate for a junior civil servant. It risks more uncertainty about compliance, inconsistency between institutions and even potential litigation where prosecutors or courts are left to decide after the fact what Parliament must have meant. The obvious challenging scenario is when officials need to consider situations where there are competing public interests—national security versus transparency, value for money versus speed of delivery, or personal privacy versus public accountability. Without more assistance for thinking those matters through, how does an official protect themselves from the—possibly criminal—allegation that their judgment call was not in the public interest among competing interests?

The new clause does not attempt to dictate exactly what public interest must mean; it simply requires the Secretary of State to set out a structure or framework in regulations, subject to approval by both Houses. Ultimately, if this legislation is to achieve the cultural change that the Government claim it will, the foundations must be clear and easy to understand. Public officials should not be left purely guessing what Parliament might have meant, or how we expected them to weigh these issues—Parliament should tell them. New clause 2 offers the Government the opportunity to do exactly that, and I hope they will take it.

[Alex Davies-Jones]

Clause 1 sets out the purpose of the Bill as a whole to ensure that public authorities and public officials perform their functions at all times with candour, transparency and frankness, and in the public interest. As the clause describes, the Bill sets out those duties in the substantive provisions that follow. The clause does not have any separate legal effect itself; it is designed to set out clearly and simply the intention behind the Bill to assist those who will be subject to it and the general public in their understanding.

I thank the hon. Member for Bexhill and Battle for tabling new clause 2, which seeks to require the Secretary of State to define exactly what is meant by the term “public interest” in clause 1. 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. It sets out the intention behind the Bill, and how the Bill achieves that intention by describing the relevant provisions.

In this context, acting in the public interest means fulfilling the obligations and duties in the remainder of the Bill that arise from it; it means being candid at inquiries and investigations; and it means that those working for public authorities must adhere to the codes and ethics required by the Bill. In general, “acting in the public interest” is usually not defined in legislation, as the hon. Gentleman said. This is because what is in the public interest will depend on the circumstance and context of that particular situation. Seeking to define what it means might have the effect of narrowing what could be considered to be in the public interest.

In schedule 1, the public interest is referred to in the context of public interest immunity. Public interest immunity is an established concept in law: it is a rule of evidence where documents are withheld if their disclosure would be injurious to the public interest. What is the “public interest” will be dependent on the particular circumstances, and we should not seek to constrain this or undermine a very long-established legal doctrine that is applied by the courts. The Inquiries Act 2005 and other legislation already contain provisions of this kind to ensure that appropriate protections are attached to sensitive information, which the Bill is replicating. I hope that clarifies the purpose of clause 1 and why defining “public interest” would not be appropriate and could actually hinder proceedings.

[Dr Mullan]

The Minister rightly describes how tightly the courts consider these matters in detail. As the Bill puts a whole range of very junior civil servants in the firing line, does she at least accept that guidance or materials might be helpful to assist a broader audience in how they approach these issues in their day-to-day work?

[Alex Davies-Jones]

I welcome that intervention and the whole purpose of this legislation is to ensure exactly that. Obviously, there will be guidance in the codes of ethics that are produced, and public authorities will probably provide training for their individual public servants who will now be captured by the Bill, if, as I hope, it receives Royal Assent and becomes an Act. I am due to attend a session at the University of Liverpool to look at exactly how we can implement the Bill, should it become legislation and reach the statute book. All of that is being taken into consideration to advise everyone about what is expected of them under the duty of candour. Therefore, I urge the hon. Gentleman not to press new clause 2 to a vote, and I pledge to work with him on exactly that.

Question put and agreed to.

Clause 1 accordingly ordered to stand part of the Bill.

[The Chair]

This is one of those moments when, should the hon. Gentleman wish to press new clause 2 to a vote, which he may not, it would not be called now; it would be called later in the proceedings, because all new clauses are voted on at the end of the consideration of the Bill.

We come now to amendment 31. This is one of those occasions when we are debating two separate groups of amendments to clause 2. We have the choice: the clause stand part debate can take place now or at the end, but not both. Let us bear that in mind.

Clause 2

Duty of candour and assistance

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I want to place on record that when I use the words “inquiry, investigation, inquest or independent panel”, I mean all of those things together. There has been a bit of chopping and changing on exactly which words we are using. Can the Minister perhaps try to align all the terminology, so that we have everything included in everything, as opposed to picking off individual words that have very specific meanings in law?

[Alex Davies-Jones]

indicated assent.

[Tessa Munt]

I thank the Minister. Amendment 32 would require public authorities or officials assisting an inquiry, investigation, inquest or independent panel to demonstrate that they have taken steps to ensure that relevant persons can safely disclose information relevant to that investigation. The amendment would require public authorities to take proactive steps to ensure that all relevant officials can safely disclose information. It would strengthen protections for those providing evidence, helping to prevent retaliation or intimidation, and ensure that inquiries and investigations have access to all relevant information for thorough scrutiny of public officials’ decision making.

[Alex Davies-Jones]

I thank the hon. Member for Wells and Mendip Hills for tabling these amendments. Amendment 31 seeks to ensure that, under the duty of candour and assistance, an inquiry or investigation, or, as she stated, a review panel, is notified by public authorities and officials of all relevant acts or information, including omissions or failures to act. We agree wholeheartedly, and I reassure the hon. Lady and all members of the Committee that the Bill already achieves the intent of the amendment.

Clause 23 provides definitions for terms used throughout the Bill. It specifies that an

“‘act’ includes an omission or a course of conduct”.

Therefore, in clause 2, “act” is to be read as including any omission or course of conduct that may be relevant, which could include approving the actions of others. To “have information” could include information that a person approved the actions of another person, or had knowledge of them and did not prevent them.

Amendment 42 would place a requirement on public authorities under the duty of candour and assistance to retain all relevant records, including digital records. Again, the Government agree with the intention behind the amendment, and believe that the provisions in the Bill are designed to achieve it in practice. Clause 2(4)(a) requires authorities and officials to provide information likely to be relevant to an inquiry or investigation if requested. They will not meet that obligation if they allow the information to be lost or destroyed when they ought to be providing it. In addition, the individual in charge of an authority has an obligation to take all reasonable steps to secure the authority’s compliance with that duty. That would necessarily involve ensuring that information is accessible within the authority, so that it can meet its obligations under the Bill.

Amendment 32 seeks to ensure that the Bill has adequate safeguards to protect those complying with the duty of candour and assistance. We agree that ensuring that public officials feel safe to disclose information is essential, and several aspects of the Bill speak to that point. The duty of candour and assistance provides appropriate safeguards for the protection of sensitive information and onward disclosure and ensures that officials can feel confident that the information they provide will be handled appropriately.

[Tessa Munt]

Can I ask the Minister for clarity? A lot of the proposed legislation seems to deal with when an investigation has been called for or set up. There may be a significant gap between that and when an authority knows that something has gone wrong and that an investigation, inquiry, inquest or independent panel is likely to follow. Is there is a way in which the duties can kick in the moment that somebody recognises that something will come of that rather than when an investigation is called for formally?

[Alex Davies-Jones]

There are two versions of the duty of candour: the always-on duty of candour by which every public servant should have to act in their everyday life, and the duty of candour with criminal sanctions attached to it that kicks in when there is an investigation or inquiry. The whole point is that they will work hand-in-hand. The former will prevent the latter—that is the intention. The code of ethics and the guidance that we talked about in an earlier debate will assist, but that will require a significant culture change across the whole public sector; it will not be easy or happen overnight. I am not naive enough to believe that it will be fixed just because we have the legislation. It will take a momentous effort by all of us to ensure that the culture seeps down from the top. That is also the intention behind the implementation, which we will come to later in the debate.

I reassure the hon. Lady that part 2 of the Bill requires public authorities to set out the process for exactly how public officials can raise internal complaints, to promote a culture of internal challenge. It also requires public authorities to set out their whistleblowing procedures, drawing officials’ attention to any legal protections they may benefit from. Although we are sympathetic to the intent behind amendment 32, we do not think that it will provide sufficient clarity on what public authorities would be expected to do to ensure that officials feel safe to disclose information, nor how that would operate as part of their duty of candour and assistance, for which non-compliance entails criminal sanctions.

Given those assurances, I urge the hon. Lady to withdraw the amendment.

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[Maria Eagle]

It is a pleasure to serve under your chairmanship today, Sir Roger. I just want to say a few words on this clause about why the duty of candour and assistance is so important, and why it means so much to Hillsborough families, some of whom are my constituents. We heard from a small number of them in the evidence sessions, but there are many more who could have told equally difficult stories about their own experience.

What happened at Hillsborough was a disaster. Nobody who worked for South Yorkshire police left their homes that morning intending to cause it, but the reality is that their gross negligence and inadequate organisation did cause it. Within four and a half months, the public inquiry had identified a loss of police control as the main cause of the disaster. Had our state been operating fully and correctly, we would have recognised that as a country and that would have been the end of the matter. There would have been accountability for those failings, lessons would have been learned, and the families could have grieved for their lost loved ones and moved on with their lives.

Instead, what happened was that the South Yorkshire police, aided and abetted by the West Midlands police, set about telling a story, intent only on deflecting blame for their own failings—even though those failings were then identified within four and a half months. One can understand, perhaps, why a police force faced with that disaster would have wanted to give their side of the story and understanding of what had happened. However, once the public inquiry—within four and a half months—had made findings that excoriated the police response to the disaster, accused a senior officer of telling a disgraceful lie and said in terms that the police would have been better advised to have accepted responsibility rather than sought to put forward a different story that was not credible, one would have expected that there would have been accountability, that the truth would have been accepted by the South Yorkshire police and that there would have been no more attempts to put forward a different narrative.

That did not happen. Instead, the then inquest proceedings—the longest in British legal history at that time, taking over a year—were used in terms by the South Yorkshire police to tell a different story: to put it in the public mind that they had not been at fault, as the public inquiry had clearly found, but that it had been the fans who had attended the match who had been at fault. It had been those who died who had contributed in some way to their own deaths. It had been the survivors of that terrible disaster who had somehow caused the problem. It had been hooliganism and drunkenness—it had been ticketless fans who had forced their way into the grounds.

That is the story that the police told, aided and abetted by the media of the day, some of which behaved disgracefully and suffer for it still on Merseyside, I might say. That story was told repeatedly. It was in every newspaper and all the mini-inquests for over a year of those inquest proceedings. At the end of it, the public perception about what had happened at Hillsborough was completely different from what the public inquiry had found. It was as if the public inquiry had never happened; yet it was right in almost every aspect, and within four and a half months of the disaster.

It is now 36 years since the disaster. In our evidence sessions, we heard from some of the families about the ongoing impact of the lies that were told and the story that has been repeatedly told by South Yorkshire police and those responsible for the disaster, who have been completely unable to accept their culpability. Even as late as the second inquest, they tried again to tell that same discredited story, so the importance of this clause cannot be overemphasised. It gets to the heart of why one might wish to call this a Hillsborough law, even though that is not the Bill’s short title. It might be known colloquially as that, because the fact is that, had those public authorities had the duties provided for in clause 2, there is no way they could have undertaken that campaign of lies, disinformation and propaganda against the wholly innocent families and wholly innocent survivors of that disaster.

It is for that reason that I think it is important that the duty of candour and assistance is an essential part of the Bill. If we enact it and implement it properly without any concerns or problems, that duty is one of the things that will enable us to say that this is a Hillsborough law because, had it been in place at the time, the South Yorkshire or West Midlands police could not have engaged in the disgraceful way that they did, simply to deflect the blame on to anybody else but them—even if that hurt those who had died, the families of those who had died, or the thousands and thousands of survivors. We forget that it was not only my hon. Friend the Member for Liverpool West Derby who was at the match; thousands of people saw what happened. It was filmed and shown live on TV, so the idea that it could be distorted in the way that it has been—at great public expense and over decades—is a terrible disgrace to the way that our systems work.

If the Bill can put that right, it will have done our whole nation a service, and it will be right to call it a Hillsborough law. It will mean that those families can stop their campaigning and start to grieve and live what is left of their lives. Some 36 years on from what happened, surely they have a right to expect that.

[Alex Davies-Jones]

I thank the hon. Member for Aberdeenshire North and Moray East for tabling amendments 18 to 20, which would require public officials and authorities to notify and provide information to any inquiry or investigation within 30 days. The Government agree entirely that public authorities and officials should provide assistance to inquiries and investigations as quickly as possible, and the Bill requires that. Clause 2(6) requires authorities and officials to act “expeditiously” when complying with the obligations placed on them. In some cases, it will be possible for officials and authorities to provide the assistance required within 30 days, but there may be times when it is not.

There will be situations where an inquiry or investigation requires an authority to provide a very large amount of information or data, requiring it to set staff and resources aside to search through potentially thousands of documents and assess their relevance, with all the necessary checks and verification that follow. We think it is important that authorities are given sufficient time to conduct thorough searches and provide accurate information, and that the inquiry or investigation will be best placed to set a reasonable timescale for that.

The duty would also apply to former officials who may have a different job or be retired—or have resigned, as we heard earlier—and there may be situations where it is impossible for them to provide the assistance required within a 30-day time limit. Although I totally agree with the sentiment, a degree of flexibility is therefore important so that we get all the information that inquiries and investigations need. I therefore urge the hon. Member not to press his amendments, but I agree to work with him on a way forward.

I now turn to clause 2. We heard powerfully from my hon. Friend the Member for Morecambe and Lunesdale and my right hon. Friend the Member for Liverpool Garston exactly why the duty of candour in clause 2 is integral to the Bill. As has been rightly said, this is a Bill for the Hillsborough families, and it will be known colloquially as the Hillsborough law, but it is also a Bill for Ida, for the Grenfell families, for the Manchester Arena families and for anyone who has been wronged by the state.

[Ian Byrne (Liverpool West Derby) (Lab)]

Today, as well as this Committee, the Independent Office for Police Conduct report on Hillsborough is being published. Within that report, I think there is a recommendation that fully supports the Hillsborough law and says why, because there are officers there who would not have been. As my right hon. Friend the Member for Liverpool Garston outlined, history would have been different if those officers had been held to account by clause 2 of the Bill.

[Alex Davies-Jones]

I totally agree with my hon. Friend and that is exactly why the Bill is so important and integral. We have all heard the stories—the reality—of what the families, the bereaved and the survivors have been through. No one should ever have to go through that again. The intent behind clause 2 is to do just that: to ensure that no family has to go through the unimaginable again.

Clause 2 sets out the requirements of the duty of candour and assistance at inquiries and investigations; in short, what those under the duty need to do. As subsection (1) states:

“Public authorities and public officials must at all times act with candour, transparency and frankness in their dealings with inquiries and investigations.”

The duty has two stages to it. The first, in clause 2(3), is the requirement for public officials to come forward and make themselves known to an inquiry or investigation if they have reason to believe that their actions or information they hold might be relevant to it. The second, in clause 2(4), is to then provide any assistance that the inquiry or investigation requires.

Clause 2(4) lists the types of assistance that might involve—for example, drawing attention to information that is particularly significant and, for public authorities, to provide a position statement to an inquiry. The head of a public authority may be asked for information and assistance as an individual public official in their own right, where relevant, but subsection (5) places them under an additional obligation. When the authority that they manage is under the duty, they are personally required to take all reasonable steps to ensure that it complies. We believe that that is crucial to the success of the Bill and for the leaders of public authorities to feel personally accountable under the duty.

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[Dr Mullan]

I emphasise that we need clarity on this. Those of us who were able to attend the meeting with the intelligence services will know that they seemed to provide quite a clear account of their individual personal responsibility and all the ways in which they thought the Bill would affect them. That was quite clearly contradicted in our evidence from other witnesses. I am grateful to the Minister for sending round a further note to Committee members this morning, and for our brief chat ahead of this sitting. Even that note raises further contradictions, however, because it says, and I quote, that “the individual public officials working for the UK intelligence services are capable of being caught by the offence of failing to comply with the duty of candour”. It lists some other ones, but it includes the duty of candour. Further down, it says, “the Bill specifies that the duty of candour and assistance can only be addressed to public authorities and not individual public officials”.

The Minister was able to give me a brief, informal explanation of that, but I do think this is extremely important. It may be that people are happy for the security services to be excluded to a certain extent, but we have to vote on a shared understanding of what exactly the Bill does in relation to them as entire organisations, as well as to the people who work for them and those who are in charge. I would be grateful if the Minister provided some clarity on that.

[Alex Davies-Jones]

I thank hon. Members for raising those important points. In this Bill, we have aimed to ensure candour while protecting national security. As it stands, inquiries and investigations will be able to demand any information and assistance they require from the intelligence services. Where national security information is concerned, the agency as a whole will provide that assistance to the inquiry or investigation by complying with a compliance direction, rather than individuals directly in their own right.

To balance that, and to ensure that there are no gaps, carve-outs or exclusions, those in charge of the agencies are subject to specific requirements to put arrangements in place for individuals to maintain records of information relating to any acts that may be relevant to an inquiry or investigation, and to provide information to the authority to ensure that the duty is complied with as set out in clause 6. Rightly, a failure to have these arrangements in place will result in criminal sanctions.

Intelligence services obtain and retain sensitive security and intelligence information in order to protect the public from national security threats. Vital public interests, including national security, would be at real risk of harm from the unrestricted disclosure of this sensitive information. We all share the same aims here—ensuring that candour is in place while protecting national security and the public.

Taking on board the points raised by Hillsborough Law Now and others, we constructed clause 6 in such a way as to ensure that there is a secure process that the intelligence services can work through so that any information required by an inquiry or investigation reaches that place safely, so that there can be full candour. However, we have heard the concerns from Hillsborough Law Now and from members of this Committee about our provisions. I assure hon. Members that the Government have taken their points on board, and we will commit to working with them and others actively to consider steps to address this in time for Report.

I turn to the other amendments, which set out that the intelligence authorities are to be listed as a public authority for the purposes of the duty of candour and assistance, and the code of ethical conduct in schedule 2. Clause 6 already makes it clear that the duty applies to the intelligence services as it applies to all other public authorities; therefore, it is beyond doubt that they are included, as a public authority, in the Bill.

We have not set out an exhaustive list of public authorities in schedule 2 to avoid unintentionally excluding some bodies by failing to list them. No individual Department or arm’s length body of central Government is included in the list for that purpose. If we begin to list public bodies, there is a risk that we imply that those not listed are not covered, which could weaken the Bill. I urge the hon. Member for Cheadle to withdraw his amendment, but I reiterate my commitment to working with Members on a way forward to capture all the concerns raised both in the Committee and outside of it.

[Mr Morrison]

I thank the shadow Minister for the points that he made; he is spot on that the lack of clarity in the Bill, particularly surrounding what came out of the evidence sessions, raises more questions than answers. However, I am pleased that the Minister has said that the Government are happy to work with us on tightening those gaps before Report. This is not about unrestricted evidence; it is about getting to the truth, which must be our focus throughout. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

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[Tessa Munt]

I rise to support amendment 3, proposed by the hon. Member for Bexhill and Battle. I am also a co-signatory of amendment 1, and I thank the right hon. Member for Liverpool Garston for her reference to it. I echo the comments that have been made about Primodos and many other things. We have investigations, inquiries, inquests, and independent panels—and no doubt something else will come up at some point. Will the Minister clarify that point and agree that we should have some common language to cover all those things? As has been mentioned, independent panels do come up quite often.

I seek clarity on investigations and inquiries that might be taking place already. My understanding is that the Bill will not affect them, so if someone has something that they want to raise, they will probably need to wait until the Bill has become law. That seems slightly perverse, in that there may be people who want something done within the next six months who are going to have to sit and wait. I would like some clarity on that.

[Alex Davies-Jones]

I thank hon. Members for a useful debate getting into the detail the provisions—that is why we have Bill Committees. It would be beneficial for me to clarify exactly how the Bill applies to non-statutory inquiries, as outlined by my right hon. Friend the Member for Liverpool Garston. The duty of candour and assistance will apply to all statutory and non-statutory inquiries and inquests described in schedule 1. Non-statutory inquiries are defined as those caused by a Minister; those that include the delivery of a report with a view to publication; and those that the Minister has confirmed in writing relate to matters of public concern.

This is the first time non-statutory inquiries have been set out in law, but we envisage that this category could include investigations held under other names, such as independent panels, provided the criteria set out are met. Amendment 1 would automatically extend the duty of candour and assistance to independent panels and reviews established by Ministers. The Bill includes a power to extend the duty to other categories of investigations, or to specific investigations via secondary legislation. It is therefore not the case that if an investigation is not covered in the Bill, the duty of candour can never apply.

[Tessa Munt]

To give an example, if the local authority children’s services department sets up an investigation into something or does one of its serious case reviews—or whatever they are called now—are that organisation, the people within it and the actors in the event that prompted it covered by the duty of candour? Can the Minister be really clear about that?

[Alex Davies-Jones]

I am happy to confirm that they will be. They are not currently, but the Government are tabling an amendment to cover that point, and we will come to it later in Committee. Should that amendment be made, the Bill will cover those local authority investigations.

The Cabinet Office is undertaking further work to look at how we reform inquiries. As part of that, we will consider how the different types of inquiries, reviews and investigations could be more clearly defined, and when and how they could best be used. That will inform how the duty is used.

The duty of candour and assistance is a powerful tool to ensure co-operation with investigations, but it would not be useful in all circumstances. Most reviews focus on matters of policy or technical issues— for example, the curriculum and assessment review, the net zero review and the review of the future of women’s football. In those cases, applying the duty would be unnecessary and might risk making reviews more difficult to establish and slower to report. Where the duty is applied, it must be properly monitored and enforced, and therefore frameworks for compliance and the protection of information need to be in place. We must avoid unintentionally impeding or delaying certain types of investigations by introducing unnecessary and unhelpful processes and bureaucracy. We therefore think the Bill strikes the right balance in which investigations it applies to, with the power in the Bill providing us with the tools and flexibility we need to extend the duty where it could be useful.

I have spoken to my hon. Friend the Member for Bolton South and Walkden about how we move forward with her campaign. She has been an incredible and ferocious campaigner for the Primodos families for many years. I have met her and the Primodos families, and I am committed to working with her on a way forward to ensure that the duty of candour can assist.

Amendment 3 is designed to apply the duty of candour and assistance to inquiries that the Secretary of State has designated as local inquiries into grooming gangs. I thank the shadow Minister for raising this important issue. As he will be aware, we are moving at pace to establish a national inquiry into grooming gangs under the Inquiries Act 2005. It will be overseen by an independent commission with statutory powers to compel evidence and testimony so that institutions can be held to account for current and historic failures. The inquiry will be independent of Government and designed to command the confidence of victims and survivors and the wider public.

The Bill already applies the duty to statutory and non-statutory inquiries called by Ministers, including this new inquiry. To strengthen the Bill, we have also tabled an amendment extending the duty to inquiries called by local authorities, and we will debate that shortly. That amendment, combined with the existing provisions in the Bill, will enable the duty to apply to either local or national inquiries into grooming gangs. I therefore urge the shadow Minister to withdraw his amendment.

[Dr Mullan]

On amendment 1, I accept the Government’s intention to clarify further how these things will operate. On panels and non-statutory inquiries, although there is sometimes in Government a resistance to public inquiries for the wrong reasons, sometimes it is because they are expensive and time-consuming. The real opportunity for applying the duty of candour more widely is that if we can ensure that non-public inquiries get all the information they need, they are much more likely to be successful, thereby avoiding a future public inquiry with all the associated costs that lawyers make a huge amount of money from.

On amendment 3, although the Minister outlined the future public inquiry, the local inquiries have not been cancelled. There is clearly a view that they must also proceed. I cannot see any reason why we would not want them to proceed on the basis that they are subject to the duty of candour.

[Alex Davies-Jones]

I am happy to reassure the shadow Minister that, should the Bill receive Royal Assent, its provisions will apply immediately to ongoing investigations and inquiries. That includes local inquiries, if we pass the amendment that the Government have tabled. We cannot allow that currently, because the Bill has not become law, but once it has done, it will cover existing ongoing inquiries and investigations and those that are yet to commence.

[Dr Mullan]

On that basis, the Minister should not have any objection to the amendment, because it would confirm that position more explicitly. We will therefore push it to a vote.

Question put, That the amendment be made.

--- Later in debate ---

[Alex Davies-Jones]

I beg to move amendment 6, in schedule 1, page 27, line 29, after “applies” insert

“by virtue of this paragraph”.

This amendment is consequential on amendment 7.

[The Chair]

With this it will be convenient to discuss Government amendments 7 and 4.

--- Later in debate ---

[Alex Davies-Jones]

As I stated previously, the Government have committed to only strengthening this Bill as it moves through Parliament. That is exactly what this group of amendments does.

Before I move on, I want to say how severely disappointed I am that the Opposition pressed the previous amendment to a vote, given my assurances that those types of investigations and inquiries will of course be covered by the Bill. That seemed to fly in the face of the statements at the beginning of the Committee sitting, where we said that we would not play party politics with the Bill. It seems, sadly, that the Opposition do not have the same ambition in mind.

Amendment 7 extends the duty of candour and assistance to apply to local authorities and local authority inquiries into serious incidents called by combined, unitary, borough, county and district councils. We have prepared the amendment with previous local inquiries firmly in mind, such as the Kerslake review into the preparedness for and emergency response to the Manchester Arena attack and local grooming gangs inquiries. It would also cover the Edinburgh tram corruption inquiry mentioned by the Mayor of Greater Manchester in oral evidence.

For the duty to apply, inquiries must relate to matters in the local authority’s area and that are within a local authority’s competence or control. There must also have been a significant risk of causing death or serious physical or psychological harm to one or more persons or substantial economic loss to one or more persons as a result of conduct involving dishonesty, impropriety or a serious breach of ethical or professional standards. That ensures incidents that have caused a significant risk to life or corruption are rightfully brought into scope, with the appropriate threshold in place to avoid unintended pressures and inappropriate use.

The rest of the amendment replicates the provisions set out for statutory and non-statutory inquiries in part 1 and part 2 of schedule 1. Amendments 6 and 4 are consequential on amendment 7.

Amendment 6 agreed to.

Amendment made: 7, in schedule 1, page 30, line 18, at end insert—

“Part 2A

Local authority inquiries

3A (1) This paragraph applies where—

(a) a local authority in England has caused an inquiry (however described) to be established,

(b) the terms of reference of the inquiry do not require it to determine any fact, or make any recommendation, that is not wholly or primarily concerned with a local authority matter,

(c) the inquiry’s functions include the delivery of a report to the authority with a view to its publication, and

(d) the authority has given written confirmation to the person leading the inquiry (“the chair”) that it appears to the authority that the inquiry is established in connection with an event or series of events in respect of which the condition in sub-paragraph (2) is met.

(2) The condition is that the event (or series of events) caused, or created a significant risk of causing

(a) death or serious physical or psychological harm, or

(b) substantial economic loss to one or more persons as a result of conduct involving dishonesty, impropriety or a serious breach of ethical or professional standards.

(3) As soon as reasonably practicable after the start of the inquiry, the chair must (subject to sub-paragraph (11)) give a compliance direction—

(a) to a public authority or public official, or

(b) to a person who had a relevant public responsibility in connection with an incident to which the inquiry relates,

if it appears to the chair that the person’s acts are or may be relevant to the inquiry or that they otherwise have information likely to be relevant.

(4) Sub-paragraph (3) does not limit the power of the chair to give a compliance direction at any other time during the course of the inquiry.

(5) Where a compliance direction is given to a public authority or body within sub-paragraph (3)(b), a compliance direction must also be given to the individual appearing to the chair to be in charge of that authority or body.

(6) A “compliance direction” is a direction to comply with the obligations under the duty of candour and assistance imposed by—

(a) section 2(4), and

(b) in the case of a direction given to an individual under sub-paragraph (5), section 2(5).

(7) A compliance direction—

(a) must be given in writing;

(b) must set out the terms of reference of the inquiry;

(c) may specify particular requirements to be complied with (and for that purpose may specify the form and manner in which, and the period within which, those requirements are to be complied with);

(d) may be varied, supplemented or revoked by the giving of a further direction.

(8) In determining the objectives of the inquiry for the purposes of complying with the duty of candour and assistance under section 2(4), regard is to be had (in particular) to the terms of reference as set out in the compliance direction.

(9) The reference to a report in sub-paragraph (1)(c) is to a report that sets out—

(a) the facts determined by the chair, and

(b) the recommendations of the chair (where the purposes of the inquiry include the making of recommendations).

(10) The provisions of the Inquiries Act 2005 (“the 2005 Act”) listed in the first column of the Table apply, to the extent specified in the corresponding entry in the second column, to an inquiry in relation to which the duty of candour and assistance applies by virtue of this paragraph as they apply to an inquiry under the 2005 Act—

[Alex Davies-Jones]

I beg to move amendment 8, in schedule 1, page 30, line 33, after “of the” insert “senior”.

This is a drafting refinement.

[The Chair]

With this it will be convenient to discuss the following:

Government amendments 9 and 10.

Schedule 1.

--- Later in debate ---

[Alex Davies-Jones]

These three amendments are minor and technical. Government amendments 8 and 9 update schedule 1 to refer to a “senior coroner”, thereby identifying the statutory office for consistency with the Coroners and Justice Act 2009 and other legislation. Government amendment 10 replaces a reference to this “Schedule” in schedule 1, paragraph 4 with a reference to this “paragraph”. This is a drafting refinement to clarify that the definitions in new paragraph 2A of schedule 5 of the Coroners and Justice Act 2009 apply only to that paragraph rather than to the entirety of schedule 5. I commend these amendments to the committee.

[Tessa Munt]

Might I seek some clarity on what happens with area coroners as opposed to senior coroners?

[Alex Davies-Jones]

I can confirm that an area coroner, for the sake of the Bill and under the Coroners Act, is classed as a senior coroner.

Amendment 8 agreed to.

Amendments made: 9, in schedule 1, page 30, line 38, after “to the” insert “senior”.

This is a drafting refinement.

Amendment 10, in schedule 1, page 32, line 1, leave out “Schedule” and insert “paragraph”.—(Alex Davies-Jones.)

This is a drafting refinement.

Schedule 1, as amended, agreed to.

Clause 3

Section 2: further provision

Question proposed, That the clause stand part of the Bill.

[Alex Davies-Jones]

Clause 3 works alongside clause 2 in making some more detailed provisions about the operation of the duty of candour and assistance at inquiries and investigations to ensure that they are practical, effective and proportionate. Clause 3(2) provides important flexibility for inquiries and investigations to alter or disapply the requirement for public officials and authorities to notify the inquiry or investigation if they have reason to believe they are relevant.

There may be situations where the requirement would be impractical or unhelpful for the inquiry itself. Clearly, it would have been impractical for every single NHS worker involved in the response to the pandemic to notify the covid-19 inquiry of their possible relevance, or an inquiry may wish to hear from those relevant to different subjects at different times and in different stages. Clause 3(3) reinforces clause 2 by requiring public officials and authorities to notify inquiries and investigations of their potential relevance as soon as is reasonably practicable. Subsections (4), (5), and (6) attach some procedure to the duty to make it practical, which schedule 1 builds on.

Inquiries and investigations will specify the assistance they require and what are called compliance directions in schedule 1. These give control to the inquiry or investigation to set out the assistance they actually require, and provide important clarity for those under the duty, so they know exactly what is expected of them. Clause 2 sets an expectation that public authorities will provide a position statement at inquiries. Such statements, made early on in proceedings can help inquiries to identify the key issues to investigate and to home in on the points of contention. In most cases, we expect these to be useful, but subsections (5) and (6) give inquiries the discretion to disapply that requirement if it would be contrary to the efficiency and effectiveness of the inquiry.

[Seamus Logan]

Could the Minister give an example to the Committee of such a circumstance?

[Alex Davies-Jones]

Yes, of course. I have mentioned the covid-19 inquiry—it would have been impractical for every single worker to come forward to an inquiry—but I add that the chair of an inquiry must give reasons, publishing them and outlining why it would not be practical, or not helpful to the inquiry, not to bring forward a position statement.

Subsection (7) is vital to ensure that the duty of candour does not cut across existing laws, such as those on data protection or safeguarding.

Question put and agreed to.

Clause 3 accordingly ordered to stand part of the Bill.

Clause 4

Extension of duty to other persons with public responsibilities

[Tessa Munt]

I beg to move amendment 29, in clause 4, page 4, line 19, after “authority” insert—

“or any sub-contractor in any chain of provision to a service provider”.

This amendment 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.

--- Later in debate ---

[Dr Mullan]

I rise briefly to support the amendment and the points made by the hon. Member for Wells and Mendip Hills. It is about not just existing contractual arrangements, but how there might be perverse incentives for people to create different structures if they think that, through contracting or subcontracting, they will escape the accountability under the Bill. I am keen to hear from the Minister.

Probably the example that everyone has in mind is the Post Office scandal. That was a direct contractor, but it could have had subcontractors and so on. When the Post Office was conducting its private investigations, it might have used subcontractors to do some of those investigations. That would not be an unusual step for an organisation to take, so it is important that we get clarity on this issue.

[Alex Davies-Jones]

I thank hon. Members for their contributions. The amendment would apply the duty of candour to subcontractors as well as contractors of a public authority, as has been outlined. In the Bill, we have sought to extend the duty into the private sector in a manner that is proportionate and effective. The focus is, and must be, public authorities and public officials—those whose role is to serve the public. That has to be the starting point. The Bill then extends the obligations of the duty of candour and assistance to private bodies and individuals that either had a statutory health and safety obligation in connection with the incident under investigation or were a contractor to a public authority and, in that capacity, had a significant impact on members of the public in connection with the incident. As we have heard, these provisions are designed to capture the equivalents of Fujitsu in the Post Office inquiry.

[Dr Mullan]

Another example of what we have been discussing this morning is Primodos and drug companies. Does the Minister expect drug companies to be captured as well?

[Alex Davies-Jones]

I welcome that intervention. As I have stated, if there was a statutory health and safety obligation in connection with an incident under investigation, then, yes, those individuals would be captured by the Bill.

[Dr Mullan]

Does the provision of treatment to an individual constitute an incident? That is what we have been talking about in relation to Primodos.

[Alex Davies-Jones]

If there had been an investigation or inquiry into that then, yes, it would.

Subcontractors are one or more stages removed. They are responsible to the main or another contractor. Where relevant, we would expect a main contractor to account for the performance and actions of a subcontractor and be candid in doing so. Statutory inquiries and inquests already have the ability to compel evidence from such persons if necessary. Therefore, on balance, we do not think it necessary or proportionate to extend the duty to all subcontractors. I therefore urge the hon. Member to withdraw the amendment.

[Tessa Munt]

If subcontractors get contracted and know that they are working for a local authority or Government body, they just need to pass on that responsibility within the contractual terms. The difficulty comes the moment there is separation between the organisation that is subject to duty of candour and a subcontractor of a subcontractor. It is not difficult—we do these things with payment terms—so I plead with the Minister to make sure that we cover subcontractors. It will not be satisfactory for a subcontractor at tier 1 to speak for a subcontractor at tier 3. It will not happen. It will not be robust enough. I foresee all sorts of slippage, especially when there are whistleblowers two or three tiers down the contract. I plead with the Minister again to reconsider what she is saying.

Secondly, what happens when the senior body—the overarching organisation—is abroad? If I may use an example, Wessex Water—I am not picking on them for any particular reason—is owned by Pennon Group, which I understand is Malaysian. What happens when the head office is abroad?

[Alex Davies-Jones]

I am happy to pick up both those points. On the first point, I will work with the hon. Lady to ensure that we find a way forward in terms of ensuring that there is no unintended gap and that we are not missing anything. A balance has to be struck between how far we go in the private sector before we are covering everybody with a duty of candour. However, we can find a way forward here.

[Ian Byrne]

That is a hugely important intervention. In Grenfell, many subcontractors did not fall under the scope. It is a real concern that we need to look at before Report to make sure that subcontractors are in scope. This is all about a change of culture. We need a change of culture within the building industry.

[Alex Davies-Jones]

I agree. I am committed to working with hon. Members on a way forward.

On the point made by the hon. Member for Wells and Mendip Hills about what happens if the head office is abroad, the Bill will provide the inquiry or investigation with the powers to obtain information from an individual wherever they are, even if they have retired, if they have resigned or if they now live abroad.

[Tessa Munt]

On the basis that we can all work together to make sure that we cover subcontractors, including the different tiers of subcontracting, I am happy to withdraw the amendment. I was going to press it to a vote, but the Minister has assured me that she will try to do something before Report and I recognise that we have support on both sides of the Committee. I thank the Minister very much indeed. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 4 ordered to stand part of the Bill.

Clause 5

Offence of failing to comply with duty

[Ian Byrne]

I beg to move amendment 54, in clause 5, page 5, line 18, after “objectives” insert:

“or are reckless as to whether it will do so,”.

This is simply a strengthening amendment that has come from the lawyers, and which I hope the Government will take on board. It is worth pointing out that we only have one shot at this. We need to ensure that there is no unfortunate language that perhaps does not allow the Bill to be as strong as we need it to be, so I hope the Government will accept the amendment.

The current wording in clause 5(1) sets the mental element of failing to discharge the duty as intent, and the mental elements of failing to provide the information in the duty as intent or recklessness—being cognisant of the risk and choosing to take it nevertheless. We feel, and I certainly feel, that this is a baseless distinction and an anomaly. The mental element should be the same, and the amendment would rectify that. It is simply a strengthening amendment to make sure that we shut any gaps.

[Alex Davies-Jones]

I sincerely thank my hon. Friend for his amendment, which seeks to lower the mental standard threshold from intent to include recklessness for the purposes of the offence of failing to comply with the duty. Recklessness already applies to breaches of the obligations in clause 2(4) and (5), so the amendment would extend the application of recklessness to obligations in clause 2(3). As the Committee has heard, under clause 2(3), those whose acts or information may be relevant to an inquiry or investigation are obliged to make themselves known to the chair. We think there is uncertainty about what recklessness in this context would actually mean and therefore do not think it right for there to be uncertainty about the test for a criminal offence.

Conversely, it is straightforward and clear for the test to be that an individual or authority intends to impede the work of the inquiry or investigation by failing to make it known that they might be relevant. Once an individual or authority has received a compliance direction from the inquiry or investigation specifying the assistance that is required—the second stage of the duty—they will then know clearly what is required of them, so the test for the offence becomes either intention or recklessness. Recklessness in that context makes sense. I therefore urge my hon. Friend to withdraw the amendment, although I am happy to meet him to discuss these concerns.

[Ian Byrne]

I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

--- Later in debate ---

[Maria Eagle]

I rise briefly to emphasise some of the points made by my hon. Friend the Member for Liverpool West Derby and urge the Minister to consider whether more can be done in that respect. The lesson of Hillsborough is that the organisations at fault set about using every pound they had available to defend themselves—and we will hear more in the IOPC report, to be published later today.

Those senior offices who made decisions to use the public money that they had in that way simply elongated and lengthened the amount of agony and pain. A corporate fine against an organisation may not be enough to deter that kind of behaviour, so I urge the Minister to consider what more might be done in terms of command responsibility.

[Alex Davies-Jones]

I thank all hon. Members for tabling these amendments and for today’s debate. As we heard on Thursday, command responsibility is a priority for change and accountability, and I therefore hope I will be able to provide further clarity as to how our Bill ensures clear accountability right at the top. Hillsborough families were clear that there must be individual accountability, with those who have engaged in state cover-ups held responsible. Our Bill clearly delivers that.

Any individual who commits a duty of candour offence can be prosecuted. That includes chief executives or the equivalent. If a public authority breaches its duty of candour or misleads the public, anyone in a management position who consented or connived with that breach can also be prosecuted. As such, amendment 27 would duplicate the provisions in schedule 3(3). Given that clarification, I ask the hon. Member for Wells and Mendip Hills to withdraw the amendment.

Our Bill is consistent with the approach taken in other legislation, including the Bribery Act 2010 and the Fraud Act 2006, where personal liability for offences committed by a corporate body relies on consent or connivance. Anyone in charge of a public authority has a legal obligation to take all reasonable steps to ensure that their authority complies with the duty of candour and assistance. If they fail to do so, they will face prosecution.

Amendments 33, 34, 44 and 45 would hold the chief executive personally responsible for offences committed by the public authority even if they did not have knowledge of the offence being committed, and even if—in the case of amendments 33 and 44—they had taken all reasonable steps to ensure the organisation’s compliance with the duty of candour. We do not believe that that is the intention of the amendments, and we do not think it fair to attach criminal responsibility in that way. We intend the duties to apply widely. For example, we plan to extend the duty of candour and assistance to NHS investigations. It would not be reasonable or realistic to expect the chief executive of an NHS trust to be across every single detail of every response in any investigation into an incident at that trust. Instead, we would expect them to have systems in place to ensure that the authority is complying, which is precisely what the Bill requires them to do.

[Seamus Logan]

To build on my point to the hon. Member for Liverpool West Derby, the issue here is that the criminal responsibility focuses the mind of the person with command responsibility. It requires that person—the chief executive or otherwise—to ensure full compliance. That is the point.

[Alex Davies-Jones]

I totally agree. I am absolutely reassured that the Bill, as drafted, does just that. It ensures that there is criminal liability on the head of a public authority to ensure that everything is covered. However, as I have already stated, when something goes wrong in an NHS setting and we know that something has gone wrong but are unable to find out exactly what, despite the head of that NHS trust having all the procedures in place for applying the duty of candour, it would not be fair or reasonable to put criminal sanctions on the head of that NHS executive.

[Tessa Munt]

Is not the point that, as the hon. Member for Aberdeenshire North and Moray East said, it focuses the mind of chief executives and very senior officers in an organisation if there is the possibility of punishment—of criminal sanction and imprisonment? I take the point made earlier about a fine probably being of absolutely no consequence to an organisation. So often we have heard that what people who have been offended against, in whatever way, really seek is a swift apology and acceptance that something has gone wrong. That is going to come from the duty of candour, but we need to have a sanction available against chief executives and senior officers so that they focus on making sure that their organisations comply and act in an appropriate way.

[Alex Davies-Jones]

I genuinely do not think that we have crossed wires here. The intention of the Bill is the same as that of the amendments; it is just about how we are doing this. Our approach holds the heads of authorities and the heads of all public organisations accountable for the things that they can reasonably be expected to do or not do. There is no exemption here: it is about whether they have done it or not, and about what is reasonably to be expected of them. We are confident that such accountability, as drafted in the Bill, will drive positive cultural change. The amendments in this group would unintentionally have the potential to criminalise a chief executive even if they did not have knowledge of the offence being committed and they had taken all reasonable steps to ensure the compliance of the organisation. We can find no precedence for such an approach and are deeply concerned that it could have a chilling effect on recruiting public sector leaders.

I reassure the Committee that the Bill ensures accountability right at the top. I am happy to share further information with the Committee, setting that out exactly as it is, and I urge the hon. Member for Wells and Mendip Hills to withdraw amendment 27.