Public Office (Accountability) Bill (Third sitting) Debate
Full Debate: Read Full DebateTessa Munt
Main Page: Tessa Munt (Liberal Democrat - Wells and Mendip Hills)Department Debates - View all Tessa Munt's debates with the Ministry of Justice
(1 day, 6 hours ago)
Public Bill CommitteesAbsolutely. The Bill is focused on those examples that are clear and egregious, where it is easy to say that there has been a failure of candour or a deliberate attempt to cover up. The legislation will cover many other situations, however, including Members of Parliament. As Members of Parliament, we are expected to operate with a degree of frankness and candour, and yet just this week we have been fiercely debating whether one of our own has or has not done that. It is important for Members to reflect on the wideness of the ramifications outside the purely obvious examples of what might constitute candour, or a lack of it.
Tessa Munt (Wells and Mendip Hills) (LD)
Does the hon. Gentleman agree that we have, in yesterday’s resignation of the chair of the Office for Budget Responsibility, quite a sensible example of what he is trying to express? That gentleman was due to be in front of a Select Committee of this House this morning, but by resigning, he has skipped being held to account for what he must know about the situation. Candour should surely also apply to those who have resigned.
If I may, Sir Roger, I refer back to the fact that one of the deepest problems has been the resignation of senior police officers. Because they have resigned, they skip away over the horizon and are not able to be held to account. There is only one way that someone should not be held to account, which is through not being on this earth any longer.
The Chair
Order. Sorry I have to keep intervening; let us get this right from the beginning, and then it will stay right all the way through. Interventions must be interventions, not speeches. There is a degree of leeway in Committee that does not exist on the Floor of the House, but nevertheless, please try to confine interventions to brevity if possible, because otherwise Members will be here all night. I concede to the hon. Member for Bexhill and Battle that, while the Bill clearly relates —and has related very heavily in terms of evidence—to Hillsborough and Grenfell, it covers a much wider range of issues. We need to remember that.
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
Tessa Munt
I beg to move amendment 31, in clause 2, page 2, line 23, at end insert—
“(ba) their failure to act, omission, or approval or tacit approval of an action are or may be relevant to the inquiry or investigation, or”.
This amendment clarifies that an indirect wrongdoing would be considered as an occurrence of misconduct or failure when examined as part of an inquiry, investigation or inquest.
The Chair
With this it will be convenient to discuss the following:
Amendment 42, in 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;”.
Amendment 32, in clause 2, page 2, line 39, at end insert—
“(f) ensure all relevant public officials can safely disclose information to an inquiry, investigation or inquest.”
This amendment requires public authorities or officials who assisting an inquiry, investigation or inquest to demonstrate that they have taken steps to ensure relevant persons can safely disclose information relevant to an investigation.
Tessa Munt
Amendment 31 would clarify that an indirect wrongdoing would be considered an occurrence of misconduct or failure when examined as part of an inquiry, investigation, inquest or independent panel. The purpose of and rationale for the amendment is that it would ensure that the Bill clearly covers situations where a public office holder has contributed to wrongdoing. I emphasise that this is about senior figures; I am not talking about junior civil servants and others who have little power. The amendment would apply where that senior public office holder has contributed to wrongdoing through not only direct action but a failure to act, such as an omission or tacit approval.
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.
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?
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.
Tessa Munt
The Minister has made her points. I am hopeful that we will end up with those reassurances. We will pick up these points later in the Committee. I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Seamus Logan (Aberdeenshire North and Moray East) (SNP)
I beg to move amendment 18, in clause 2, page 2, line 39, at end insert—
“(4A) Where a public authority or public official is under an obligation to respond to or assist an inquiry or investigation under subsection (4) they should do so within 30 working days.”
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.
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?
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.
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?
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.
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.
Tessa Munt
I am delighted to have got to this bit. I speak to this clause in particular, because I am extremely concerned that the duty of candour should capture subcontractors and the contractors to subcontractors. It is unbelievably common for those committed to carrying out contracts with local authorities, Government or public bodies generally to subcontract and subcontract and subcontract. There is absolutely no reason why those organisations and the people involved should not fall under the duty—those people are often the whistleblowers who tell the primary organisation, or their own, what it is that they have seen. I feel strongly that we should ensure that any person involved in providing a service to a service provider, where there is subcontracting in place, should comply with the duty of candour and assistance to an inquiry, investigation or all the other panels and various things that we have referred to this morning.
The duty should apply not only to the primary service provider, but to the subcontractors, whether individuals or organisations. That would close a potential accountability gap by making it clear that all parties involved in providing a service must co-operate fully with inquiries, investigations and panels. It would help to ensure that relevant information is not withheld purely due to contractual arrangement. That would support comprehensive scrutiny of decisions, actions, omissions and service delivery.
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.
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?
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.
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
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.
The Chair
I understand that that has been corrected online, and the matter is now on the record as well.
Tessa Munt
I beg to move amendment 27, in clause 5, page 5, line 21, at end insert—
“(1A) If an offence under this section is proved to have been committed with the consent or connivance of—
(a) a senior officer of a public authority, or
(b) a senior officer of a body corporate with relevant public responsibility under section 4 of this Act, or
(c) a person purporting to act in such a capacity,
the senior officer or person (as well as the public authority or body corporate) is guilty of the offence and liable to be proceeded against and punished accordingly.”
This amendment would hold senior officers liable for the offence of failing to comply with the duty of candour and assistance if it is proved that they consented or connived in that failure.
The Chair
With this it will be convenient to discuss the following:
Amendment 33, in clause 5, page 5, line 21, at end insert—
“(1A) Where an offence under this section is committed by—
(a) a public authority, or
(b) a body corporate with relevant public responsibility under section 4 of this Act,
the chief officer or chief executive (as well as the public authority or body corporate) is guilty of the offence and liable to be proceeded against and punished accordingly.”
This amendment would place a personal responsibility on the chief officer or chief executive of a public authority or a corporate body with public responsibility under Clause 4 for an offence of failing to comply with the duty of candour and assistance.
Amendment 44, in clause 5, page 5, line 21, at end insert—
“(1A) Where the duty falls on a public authority or other body, responsibility for the discharge of that duty falls on the Chief Officer or Chief Executive for the purposes of this section.”
Amendment 34, in clause 11, page 9, line 24, at end insert—
“(1A) Where an offence under this section is committed by a public authority, the chief officer or chief executive (as well as the public authority) is guilty of the offence and liable to be proceeded against and punished accordingly.”
This amendment would place a personal responsibility on the chief officer or chief executive of a public authority for an offence of misleading the public.
Amendment 45, in clause 11, page 9, line 24, at end insert—
“(1A) Where the act or statement is made by or in the name of the public authority, responsibility for it lies on the Chief Officer or Chief Executive for the purposes of this section”
Tessa Munt
The amendment would ensure that any person involved in providing a service to a service provider—we are back to our subcontracting discussion —will fall under a duty to comply with the duty of candour and assistance to an inquiry or investigation or any other body, which we have discussed this morning. The intention is to ensure that senior officers cannot evade accountability simply by turning a blind eye to failures to comply with the duty of candour and assistance. The amendment would make them liable where it is proven that they consented or connived in a breach and would close the loophole around responsibility for indirect wrongdoing.
Sir Roger, do you wish me to speak to amendment 33, too?
The Chair
Yes. Amendments 33, 44 and 34 are grouped, but you are only moving amendment 27.
Tessa Munt
Thank you, Sir Roger.
Amendment 33 would place a personal responsibility on the chief officer, or the chief executive of a public authority or corporate body with public responsibility under clause 4, for an offence of failing to comply with the duty of candour or assistance. What is needed is clear personal accountability on the chief officer or chief executive for any failure to comply. That ensures that senior leaders cannot avoid responsibility for breaches within their organisation, and reinforces the expectation that those at the top maintain a culture of openness and co-operation.
Amendments 44 and 45 go to the heart of what we are trying to do regarding the Hillsborough law, which is about command responsibility. It is about cultural change. I got the briefing note from the Minister, which I am very thankful for, which outlines where we feel the Government are now, but I think there is a debate among many of us about whether we feel that is strong enough. I just want to outline why I feel that, and why I feel that these amendments are worthy of consideration by the Minister.
The duty of candour and assistance applies to both public authorities and individuals. Where the duty falls on an authority, responsibility for compliance and enforcement measures must land on individuals; otherwise, those measures are basically rendered ineffective. The clause 5 and clause 11 offences require intent or recklessness, a concept that is difficult to apply to a legal—rather than natural—person. Where the criminal law has corporate offences, including proof of intent or recklessness, liability is established by attributing the mental state of directing minds to the corporation. That may be appropriate in some contexts, but here, proof of wrongdoing or failure leads only to liability on the authority and a fine paid by the taxpayer. I just do not feel that goes far enough.
The original 2017 Public Authority (Accountability) Bill dealt with that by making the chief officer or chief executive responsible for the discharge of the corporate duty. We feel that that is both fair and practical, as it places the responsibility on the person with the ability to ensure that authorities are properly led, and a high hurdle of intent or subjective recklessness ensures that he or she does not get prosecuted for inadvertence, or if he or she is misled by others. That also provides an effective deterrent.
I go back to the fact that we are looking at cultural change here; I feel that understanding that they would be responsible would sharpen their minds. Prosecution of a corporation just means that the taxpayer pays a fine, and we have seen that before, with a slap on the wrist and no cultural change.
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.
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.