Public Office (Accountability) Bill

In the circumstances following the late change to today’s business, Mr Speaker has selected amendments tabled after what would have been the usual deadline. New Clause 8 Information contained in public records “(1) This section applies to information contained in a record that is transferred to a relevant authority under— (a) the Public Records Act 1958, (b) the Public Records (Scotland) Act 1937, (c) the Public Records Act (Northern Ireland) 1923, or (d) any other enactment or arrangement under which records are transferred to a relevant authority for their care and preservation. (2) For the purposes of this Chapter, the information is not to be treated as information that is held by— (a) the relevant authority, or (b) persons who work for the authority. (3) Each of the following is a ‘relevant authority’— (a) the Public Record Office; (b) the Keeper of Public Records; (c) an authority responsible for records deposited at a place of deposit appointed under section 4 of the Public Records Act 1958; (d) the Keeper of the Records of Scotland; (e) the Public Record Office of Northern Ireland; (f) any other person with responsibility for the care and preservation of records under arrangements made with an authority within any of paragraphs (a) to (e). (4) In this section references to a record being ‘transferred’ to a relevant authority include references to it being transmitted to, or accepted or acquired by, the authority.”—(Catherine Atkinson.) This new clause provides for an exemption from the duty of candour and assistance for bodies such as the National Archives so far as relating to their statutory responsibilities of holding public records. Brought up, and read the First time.

I beg to move, That the clause be read a Second time.

With this it will be convenient to discuss the following: Government new clause 9. New clause 1—Post-legislative assessment of the legal duty of candour for public authorities and public officials— “(1) The Secretary of State must, within 12 months of the passing of this Act, publish a report into— (a) the impact of the Act’s provisions on increasing public confidence that public authorities’ internal processes are fit for purpose in identifying and investigating failures when they first arise following a major incident. (b) the role of the standing public advocate in assessing public authorities’ responses to affected individuals and relatives of bereaved victims following a major incident or where there is a major public concern that public authorities may not be acting in the best interests of those affected by a major incident. (2) The report must assess— (a) extending the public advocate’s powers to facilitate the gathering of information from those people affected by a major incident to support official inquiries and investigations to help ensure that all public authorities and officials are acting in accordance with the duty of candour set out in this Act. (b) the case for facilitating a mechanism whereby the public advocate can instigate an independent panel to collate evidence and information following a major incident to support the oversight of public authorities and officials’ responses to major incidents. (c) the costs of establishing independent panels as compared to non-statutory inquiries, or statutory inquiries under the Inquiries Act 2005 in line with paragraph (b). (3) The Secretary of State must lay a copy of the report before Parliament.” New clause 2—Offence of wilfully destroying information or records relevant to an inquiry or investigation— “(1) A public authority or public official commits an offence if— (a) they deliberately destroy relevant information or records relevant to an inquiry, investigation, or inquest; (b) they know that, or are reckless as to whether, the information is relevant to or required by an inquiry, investigation, or inquest. (2) A public official who commits an offence under this section is liable— (a) on summary conviction in England and Wales, to imprisonment for a term not exceeding the general limit in a magistrates’ court or a fine (or both); (b) on summary conviction in Scotland, to imprisonment for a term not exceeding 12 months or a fine not exceeding the statutory maximum (or both); (c) on summary conviction in Northern Ireland, to imprisonment for a term not exceeding six months or a fine not exceeding the statutory maximum (or both); (d) on conviction on indictment, to imprisonment for a term not exceeding two years or a fine (or both).” This new clause introduces an offence for wilfully destroying relevant records after a major incident that may lead to an inquiry or inquest. New clause 3—Monitoring compliance with duties under the Act— “(1) The Secretary of State must commission and publish annually an independent report which monitors public authorities’ compliance with their duties under the Act. (2) The report must assess— (a) public authorities’ record-keeping, disclosures and responses to inquiries and investigations; (b) the effectiveness of enforcement and sanctions provisions in the Act in helping to ensure that public authorities and public officials perform their functions in line with the duty of candour in their dealings with inquiries and investigations; and (c) the effectiveness of the provisions in the Act for supporting persons, including public officials, making protected disclosures and for reporting wrongdoings to an inquiry or investigation following a major incident. (3) The Secretary of State must lay a copy of each report before both Houses of Parliament. (4) The first report must be laid within the period of 12 months of the passing of this Act. (5) Each subsequent report must be laid annually beginning with the day on which the previous report was laid.” This new clause requires the Secretary of State to commission and publish annually an independent report with the purpose of providing an oversight mechanism to monitor compliance with duties under the Act. New clause 4—Conduct of public authorities and access to legal aid for seriously injured survivors who are participating in inquests or inquiries— “(1) Legal aid must be made available, without a means test, to seriously injured survivors who are participating in inquests or inquiries where there are reasonable grounds for believing the matter under investigation relates to the conduct of public authorities tasked with carrying out public functions, or public officials working for bodies in a public capacity, in connection with the discharge of their public duties. (2) The Secretary of State must, within three months of the Act receiving Royal Assent, make regulations to— (a) add civil legal services to Part 1 of Schedule 1 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 in connection with proceedings relating to seriously injured survivors who are participating in inquests or inquiries as under subsection (1); (b) amend the Civil Legal Aid (Merits Criteria) Regulations 2013 (S.I. 2013/104) for the purposes of providing criteria for a determination for legal representation in respect of cases under subsection (1). (3) This section comes into force on the day on which this Act is passed.” This new clause would extend civil legal aid to seriously injured survivors who are participating in inquests or inquiries where the conduct of public bodies or public officials is in question. New clause 5—Review of the merits of establishing a national oversight mechanism for ensuring candour and transparency of public authorities in respect of inquests and inquiries— “The Secretary of State must, within six months of the passing of this Act, carry out a review to determine the merits of establishing an independent oversight mechanism to help ensure candour, transparency and follow up with respect to the actions of a public authority arising from the conclusions and recommendations of inquests and inquiries.” New clause 6—Monitoring the standards of ethical conduct of officials in response to the recommendations from inquests and inquiries— “In discharging its duty under section 9(1) of this Act a public authority must monitor the standards of officials in response to the recommendations from inquests and inquiries to ensure they are acting with candour, transparency and frankness.” New clause 7—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 section 1(1)(b). (2) Regulations under subsection (1) may not be made unless a draft has been laid before and approved by a resolution of each House of Parliament.” This new clause would require the Secretary of State to define public interest for the purposes of this Act by regulations. New clause 10—Expected standards of conduct and duty of NHS boards to report medical malpractice or serious wrongdoings— “(1) This section sets out a duty for boards of NHS trusts and NHS foundation trusts in England to adopt codes of conduct mandating reporting of concerns in relation to systemic medical malpractice or serious wrongdoings relating to patient safety within an NHS body. (2) A member of the board of directors of an NHS trust or an NHS foundation trust in England must report any evidence or reports they have seen of systemic medical malpractice or serious wrongdoings relating to patient safety within the trust to— (a) the Care Quality Commission, (b) the Department of Health and Social Care, and (c) the Health Services Safety Investigations Body. (3) The board of directors of an NHS trust or NHS foundation trust in England has a collective duty to— (a) refer the trust to the Care Quality Commission, and (b) alert the Department of Health and Social Care and the Health Services Safety Investigations Body, if staff employed by, or acting on behalf of, the trust raise concerns of systemic medical malpractice or serious wrongdoings relating to patient safety. (4) In discharging its duties under subsection (1), an NHS trust board must, in particular— (a) adopt a code of conduct which sets standards expected of members who serve on the boards of an NHS trust or NHS foundation trust, and (b) ensure that the code of conduct is published. (5) An NHS trust’s code of conduct must in particular— (a) require members of a board of an NHS trust or NHS foundation trust to act in accordance with the duty of candour in reporting concerns relating to systemic medical malpractice or serious wrongdoings relating to patient safety within a trust, (b) require members of the trust’s board to promote ethical conduct, candour, transparency and frankness within all parts of the NHS trust or foundation trust for which they work, (c) contain information about the steps that a person who works for an NHS trust should take if they believe that a member of a trust’s board has failed to act in accordance with the code of conduct. (6) In this section— ‘systemic medical malpractice’ means an action or omission in the provision of health care that falls below the expected standard of care and indicates a widespread, patterned, or recurring failure within the systems, processes, or governance of the trust. ‘wrongdoing’ includes abuse of authority, perverting the course of justice, neglect of duty and the exploitation of vulnerable people.” This new clause sets a duty for boards of NHS trusts and foundation trusts in England to adopt codes of conduct mandating reporting of concerns in relation to systemic medical malpractice or serious wrongdoings relating to patient safety within a trust. New clause 11—Duty of candour and enforcement of standards of ethical conduct in DHSC— “(1) In discharging its duties under section 9 of this Act, the Department of Health and Social Care (DHSC), must, in particular— (a) set out the steps DHSC will take to ensure that legal services provided to NHS bodies and other relevant health-related organisations are consistent with the statutory duty of candour and the principles of openness, transparency and learning following patient safety incidents. (b) set out which oversight body is responsible for ensuring the standards set out in DHSC code of ethical conduct are adhered to and enforced. (c) set out provisions to allow a relevant oversight body to examine on its own initiative suspected serious or systemic breaches of DHSC’s code of ethical conduct. (d) set out a mechanism for ensuring that any breaches of DHSC’s code of ethical conduct are recorded and that proper data is kept and published that records the extent to which complaints have been made regarding its ethical conduct and their outcome.” This new clause would set out additional requirements for the DHSC in respect of the statutory requirements it must fulfil under section 9 of this Act. Amendment 13, in clause 1, page 2, line 1, after “public authorities” insert “, Members of both Houses of Parliament” This amendment is connected to Amendment 14. Government amendments 151 and 152. Amendment 1, 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;” This amendment would add the disclosure of digital messages and communication to the assistance that a public authority or official must provide to an inquiry or investigation. Amendment 3, 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 are 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. Amendment 150, page 2, line 39, at end insert— “(4A) Where in exercise of its duties under subsections (1) to (4) a public authority or public official intends to provide information to the inquiry or investigation, and that information includes information about a person who has or may have been caused harm in the incident under inquiry or investigation it must, subject to subsection (4B) below, provide to that person, or if deceased, the person administering their estate, such part of that information as is relevant to the nature and cause of the harm they have or may have sustained. (4B) The obligation described in subsection (4A) above does not apply if the chair of the inquiry or investigation directs, either on application or their own motion, that the subsection should not apply, or where the chair directs that subsection (4A) shall apply subject to conditions specified in the direction, the subsection shall apply subject to those conditions.” This amendment would require a public authority or public official to provide information to a person, or the relatives of that person, who was affected by an incident under investigation subject to the chair of an inquiry or investigation directing otherwise. Government amendment 153. Amendment 4, 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. Amendment 5, 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. Government amendments 26, 28 and 154 to 157. Amendment 20, in clause 6, page 6, line 3, at end insert— “(2A) Where an obligation to give notification would have arisen under section 2(3), save for the exemptions in subsection (2), the head of the relevant intelligence service must provide a written notification to the Intelligence and Security Committee of the UK Parliament summarising the acts that may be relevant to an inquiry or investigation.” This amendment aims to provide accountability for intelligence services and their operations in relation to the duty of candour and its exemptions from them. Amendment 199, page 6, line 3, at end insert— “(2A) Where, in compliance with the obligation under section 2(4), a person who works for an intelligence service, a military intelligence service, the National Crime Agency, Counter Terrorism Command, or one of the armed forces, would be required to provide security or intelligence information, the obligation applies in respect of that information only if the head of the service or agency consents to it being provided. (2B) The head of an intelligence service, the head of military intelligence service, the head of the National Crime Agency, the head of Counter Terrorism Policing UK, or the head of one of the armed forces may withhold consent under subsection (2A) only if it appears to the head that either of the following conditions is met. (2C) The first condition is that it is necessary for consent to be withheld in the interests of national security or otherwise for the purposes of the proper exercise of the functions of the service. (2D) The second condition is that the information would not be of assistance to the inquiry or investigation in meeting its objectives. (2E) Where the head of an intelligence service, the head of military intelligence service, the head of the National Crime Agency, the head of Counter Terrorism Policing UK, or the head of one of the armed forces withholds consent under subsection (2A), the head must notify the person leading the inquiry or investigation of that fact.” This amendment ensures that the duty of candour and assistance may require a person who works for an intelligence service, military intelligence, the NCA, Counter Terrorism Command or the armed forces to provide security or intelligence information with the consent of the head of their service. Government amendments 32 and 33, and 158 to 168. Amendment 2, in clause 9, page 8, line 3, after “work” insert “including the retention and disclosure of digital records including messages relevant to their public functions” This amendment ensures that digital messages and records are added to the duty of candour in relation to inquiries and inquests. Government amendment 37. Amendment 6, page 8, line 18, after “disclosures” insert “and to whom such disclosures should be made; (ba) how a person making a protected disclosure under paragraph (b) is protected; (bb) a list of prescribed people and bodies to whom a potential whistleblower may speak to in confidence about a relevant concern.” This amendment would require that a public authority’s code of ethical conduct includes information on whom a person can make a protected disclosure to and how that person would be protected. Amendment 7, page 8, line 23, leave out subsection (6) and insert— “(6) The Secretary of State must introduce a standard template for ethical code of conduct for completion by public authorities which satisfies the requirements in this section and which may be added to by public authorities to include information specific to their organisation or function.” This amendment would require the Secretary of State to introduce a standard template to ensure a consistent and high standard approach to completion of code of ethical conduct documentation across public authorities. Government amendments 38 and 39. Amendment 14, in clause 11, page 9, line 22, after “public authority” insert “, Member of either House of Parliament” This amendment expands the offence of misleading the public to apply to Members of either House of Parliament. Amendment 15, page 9, line 23, after “authority” insert “, Member”. This amendment is connected to Amendment 14. Amendment 25, page 9, line 26, at end insert— “(1A) An act under subsection (1)(a) includes the provision of misleading information to a person acting for the purposes of journalism (as described in subsection (4)(b)) carried out via a press statement, media briefing, or other communication intended for dissemination by a recognised news publisher.” This amendment would ensure that the offence of misleading the public would include a public authority or public official providing misleading information to a recognised news publisher. Amendment 16, page 9, line 38, after “authority” insert “, Member of either House of Parliament” This amendment is connected to Amendment 14. Government amendment 40. Amendment 8, page 10, line 5, leave out paragraph (b). Amendment 17, page 10, line 8, at end insert “, or (c) in furtherance of the privileges of either House of Parliament.” This amendment is connected to Amendments 13 to 16 and 18. It provides that the offence of misleading the public does not apply to any act done in furtherance of the privileges of either House of Parliament. Government amendments 41 and 42. Amendment 19, page 10, line 23, at end insert— “(7A) A prosecution for an offence under this section shall not be instituted except by or with the consent of the Attorney General.” This amendment requires the Attorney General to consent to the prosecution of anyone for the offence of misleading the public. Amendment 18, page 10, line 37, at end insert— “(8A) A certificate signed by the appropriate authority (as defined in section 34 of the Freedom of Information Act 2000) certifying that an act is done in furtherance of the privileges of either House of Parliament shall be conclusive evidence of that fact.” This amendment is connected to Amendments 13 to 17. Government amendments 43 to 51. Amendment 12, in clause 15, page 13, line 7, at end insert— “(2A) References in this Part to a person who ‘holds public office’ include references to an individual who was, but is no longer, such an office holder, in respect of conduct occurring while they held such office.” This amendment would ensure that public officials would still be liable for misconduct during their time in public office if they resign or retire. Government amendments 52 to 69. Amendment 11, in clause 23, page 22, line 20, at end insert— “(6) For the purposes of this Act, any duty or liability imposed on a public official or a person holding public office applies in respect of any act or omission occurring while the person held that office or performed those functions, notwithstanding that the person has subsequently resigned, retired, or otherwise ceased to hold that office or perform those functions.” This amendment would ensure that the duties and liabilities in this Bill apply to public officials during their time in public office even if they have since resigned, retired or ceased to hold a public office. Government amendments 70 and 71. Amendment 9, in clause 25, page 22, line 30, leave out subsections (1) to (8) and insert— “This Act shall come into force on Royal Assent, save for sections 9, 10 and 18, which will come into force six months thereafter.” This amendment clarifies that the Act should come into force straightaway except for those sections which require the provision of codes or guidance. Government amendments 72, 76 and 169 to 178. Amendment 10, in schedule 1, page 29, line 9, after “an inquiry” insert “, independent panel or review established by a Minister” This amendment ensures that the statutory duty of candour and assistance extends automatically to independent panels and reviews established by Ministers of the Crown. Amendment 146, page 29, line 9, after “an inquiry” insert “, independent panel, review established by a Minister, or independent panel or review established by a local authority.” This amendment ensures that the statutory duty of candour and assistance extends automatically to independent panels and reviews established by Ministers of the Crown and by local authorities. Government amendments 78 to 80, 91, 93 to 97, and 179 to 198. Amendment 149, in schedule 2, page 47, line 22, at end insert— “(4A) Notwithstanding regulations made under sub-paragraph (4) a statutory water company holding an appointment under Chapter I of Part II of the Water Industry Act 1991 as a water undertaker (company) must meet the obligations set out in Chapter 2 of Part 2 of this Act for public functions in connection with their duties to— (a) provide water supply within their area; (b) supply water that is wholesome for domestic or food production purposes; (c) provide, improve, and extend a system of public sewers and to treat sewage within their area; (d) comply with water quality regulations; (e) ensure long-term resilience of water supply and sewage networks against climate change, population growth, and consumer behaviour changes; (f) maintain their assets to prevent sewage from polluting watercourses; and (g) reduce sewage pollution.” This amendment would place privatised water companies in England and Wales under the obligations of Chapter 2 of Part 2 on the face of the Bill for the functions for which they are responsible of a public nature. Government amendments 98 to 142.

It is an absolute privilege to bring the Bill back to the House on Report. I know that Members across the House have long supported it and have been waiting for its return. At its heart, this legislation is about what people should expect from the state when the worst happens: honesty, transparency and a system that stands with victims and families, not against them. For too long, that has not been the experience of too many people in this country; bereaved and traumatised families have been forced into exhausting, heartbreaking battles to uncover the truth. Institutions have closed ranks and ordinary people have been left to fight the full weight of the state at the very moment when they most needed its support. The Bill seeks to put an end to that. It will drive the culture change that the country so desperately needs so that when public bodies fail, the response is candour, not cover-up.

Will the Minister give way?

I am going to make some progress, but I will give way. It is essential that there is accountability, not denial, so that those affected get the support they need, not obstruction. We often refer to this Bill as the Hillsborough law. Without the determination of the Hillsborough families, we would not be debating this legislation today. Their determination has been driven by a selfless belief that no other families should ever go through the ordeal that they have suffered. But sadly their story is not unique: we have seen scandal after scandal and cover-up after cover-up, where families have had to fight for the truth and their trust in the state to be forthcoming and truthful has been shattered. The Bill began with the Hillsborough families, but in the last decade their fight has become a movement, with a coalition of families and campaigns and those searching for the truth; the Bill belongs to every one of them. I am sure that the House joins me in thanking every single family member and campaigner from the Hillsborough families, the Manchester Arena families, Grenfell, the Post Office scandal and many other campaign groups, as well as many other individual cases that fall outside those campaigns.