Lord Ponsonby of Shulbrede:

Moved by Lord Ponsonby of Shulbrede

133: After Clause 38, insert the following new Clause—“Major incidents: duty of candour(1) In discharging their duties in relation to a major incident, public authorities and public servants and officials must at all times act within their powers—(a) in the public interest, and(b) with transparency, candour and frankness.(2) If a major incident results in a court proceeding, official inquiry or investigation, public authorities and public servants and officials have a duty to assist—(a) relating to their own activities, or(b) where their acts or omissions may be relevant.(3) In discharging the duty under subsection (2), public authorities and public servants and officials must—(a) act with proper expedition,(b) act with transparency, candour and frankness,(c) act without favour to their own position,(d) make full disclosure of relevant documents, material and facts,(e) set out their position on the relevant matters at the outset of the proceedings, inquiry or investigation, and(f) provide further information and clarification as ordered by a court or inquiry.(4) In discharging their duty under subsection (2), public authorities and public servants and officials must have regard to the pleadings, allegations, terms of reference and parameters of the relevant proceedings, inquiry or investigation but may not be limited by them, in particular where they hold information which might change the ambit of the said proceedings, inquiry or investigation.(5) The duties in subsections (1) and (2) must—(a) be read subject to existing laws relating to privacy, data protection and national security, and(b) apply in a qualified way with respect to private law and non-public functions as set out in subsection (6), and(c) not be limited by any issue of insurance indemnity.(6) The duties in subsections (1) and (2) will be enforceable by application to the relevant court or inquiry chairperson by any person affected by the alleged breach, or the court or inquiry may act of its own motion. (7) Where there are no extant court or inquiry proceedings, the duties may be enforced by judicial review proceedings in the High Court.”Member's explanatory statementThis new clause would require public authorities, public servants and officials to act in the public interest and with transparency, candour and frankness when carrying out their duties in relation to major incidents.

My Lords, there is an urgent need to introduce the duty of candour for those operating across public services such as policing, health, social care and housing. A duty of candour would place a legal requirement on organisations to approach public scrutiny—including inquiries and inquests into state-related deaths—in a candid and transparent manner. The duty would enable public servants and others delivering state services to carry out their roles diligently, while empowering them to flag dangerous practices that risk lives.

By requiring openness and transparency, a statutory duty of candour would assist in creating a culture of change in how state bodies approach inquests and inquiries. It would give confidence to those individual members of an organisation who want to fully assist proceedings, inquiries and investigations but who may experience pressure from their colleagues not to do so. A statutory duty of candour would compel co-operation with proceedings, inquiries and investigations, thereby dismantling the culture of colleague protection in, for example, the police service.

The NHS currently has a duty of candour whereby there is no liability for breaches. The need for sanctions on a duty of candour was recently evidenced by the inquiry into deaths in Essex mental health services. Before the inquiry was converted into a statutory inquiry, the then chair had said that she could not effectively do her job and that only 30% of the named staff had agreed to attend evidence sessions—a key element of the duty of candour as put forward in the amendment, which would apply to all public authorities.

A duty of candour needs to apply to all public authorities to ensure an effective end to evasive and obstructive practices following contentious deaths. State-related deaths, particularly major incidents such as the Hillsborough tragedy or the Grenfell Tower fire, commonly involve many different public agencies, from local authorities to health services. Without ensuring a duty of candour that applies to all involved in relevant investigations, institutional defensiveness and delays will continue, and the fundamental purpose of such investigations—to prevent future deaths—will continue to be undermined. The original version of the duty, put forward in the Criminal Justice Bill, applies only to police officers. Do the Government agree that it is important that this is fixed, whether in this Bill or a future criminal justice Bill?

Institutional defensiveness has been found to be a pervasive issue in inquests and public inquiries. It causes additional suffering to bereaved persons, creates undue delay to inquests and inquiries, undermines public trust and confidence in the police and undermines the fundamental purpose of inquests and inquiries—to understand what has happened and prevent recurrence. Establishing a statutory duty of candour would go some way to addressing these issues.

In her 2017 review of deaths and serious incidents in custody, Dame Elish Angiolini concluded:

“It is clear that the default position whenever there are deaths or a serious incident involving the police, tends to be one of defensiveness on the part of state bodies”.

Additionally, the chair of the statutory Anthony Grainger inquiry, His Honour Judge Teague KC, concluded that it was his

“firm view that an unduly reticent, at times secretive attitude prevailed within Greater Manchester Police’s Tactical Firearms Unit throughout the period covered by the inquiry”.

Compelling co-operation with a statutory duty of candour would enable inquests and inquiries to fulfil their function of reaching the truth to make pertinent recommendations which addressed what went wrong, and to identify learning for the future.

Failure to make full disclosure and to act with transparency can also lead to lengthy delays as the investigation or inquiry grapples with identifying and resolving issues in the dispute at a cost to public funds and public safety. A statutory duty of candour would significantly enhance the participation of bereaved people and survivors, by ensuring that a public body’s position was clear from the outset, limiting the possibility of evasiveness. I beg to move.

My Lords, I rise to speak to this amendment to which I have added my name. I declare my interest as co-chair of the national police ethics committee.

Before turning to the amendment, I follow other noble Lords by recording the deep gratitude of both myself and many in the Church for the wisdom and friendship of Lord Cormack. On behalf of both the party he served and the Church he loved, over so many decades, Patrick wonderfully embodied that concept of “critical friend” which is so vital to the functioning of all institutions. We were all better for his wisdom and friendship, and we all learned much from his challenges. He may not have been subject to a duty of candour, but that never stopped him from being very candid in expressing his views. We will miss his contributions, here and elsewhere greatly.

The former Bishop of Liverpool advocated for a duty of candour in his report on the Hillsborough disaster, The Patronising Disposition of Unaccountable Power. That title tells its story. His report was produced over six years ago; a duty of candour was finally contained in the College of Policing’s Code of Practice for Ethical Policing in the last two months, for which I and many others are deeply grateful.

The amendment would require public authorities, public servants and officials to undertake a duty of candour. By placing a general duty of this nature on a statutory footing, the participation of bereaved people and survivors in the justice system would be enhanced. Inquest describes an

“endemic culture of delay, denial and institutional defensiveness from public authorities and private corporations that bear responsibility for the health and safety of the public”.

We do not always get it right in the Church, either.

As Bishop of Manchester, it fell to me to help lead my city and diocese in their response to one of the worst terrorist incidents on UK soil in recent years. I believe that we responded well—so well that we have been able to help other cities around the world that have faced similar tragedies since. However, when it came to learning lessons—discovering what had gone less well—we found ourselves hampered by the natural reluctance of public bodies to share their failings. This is not about finding guilty parties to blame; it is about learning from the events that happen.

A duty of candour would help to move the emphasis away from reputation management in the wake of crises, towards supporting victims, their families and survivors. I was delighted to learn that we now have such a duty in the code for policing, but it seems to me that exactly the same arguments apply to the other services involved in seeking to forestall or respond to major incidents. I contend that it is not enough for just the College of Policing to introduce this duty, although that is indeed a welcome step; we need a more general duty that extends to a far wider range of public bodies.

My Lords, I have signed the amendment and it is a pleasure to follow the noble Lord, Lord Ponsonby, and the right reverend Prelate the Bishop of Manchester.

The 2013 Francis report set out the failings of the Mid Staffordshire hospital trust, explaining exactly why there needed to be a duty of candour. It said:

“This was primarily caused by a serious failure on the part of a provider Trust Board. It did not listen sufficiently to its patients and staff or ensure the correction of deficiencies brought to the Trust’s attention. Above all, it failed to tackle an insidious negative culture involving a tolerance of poor standards and a disengagement from managerial and leadership responsibilities. This failure was in part the consequence of allowing a focus on reaching national access targets, achieving financial balance and seeking foundation trust status to be at the cost of delivering acceptable standards of care”.

That could apply to many of the issues that we have debated in this part of the Bill on major incidents. Regulation 20—the duty of candour brought in across the NHS in 2015—was defined as

“the volunteering of all relevant information to persons who have, or may have, been harmed by the provision of services, whether or not the information has been requested, and whether or not a complaint or a report about that provision has been made”.

I will refer to that duty of candour in today’s debate on a later amendment.

The CQC points out that we must remember that there are two types of duty of candour—the statutory and the professional—both of which

“have similar aims—to make sure that those providing care are open and transparent with the people using their services, whether or not something has gone wrong”.

The implementation of the duty of candour covering the NHS applies to all healthcare providers, registered medical practitioners, nurses and other registered health professionals where there is a “belief or suspicion” that any treatment or care provided by them or their trust

“has caused death or serious injury”.

It is important for the NHS that it is for people who are registered, as it is with the police. If we ask to broaden it, and we do, we need to think carefully about who it should cover, because these people must be accountable—probably through registration.

Although it is a decade since the duty of candour was introduced, serious incidents, including death and injury, have continued in the NHS. Responsible hospital trusts and providers, as well as the individual regulated healthcare professionals, all know that they will be held accountable to this standard. As was described by the two previous speakers, it is a no-fault system which overcomes the old problem that saying sorry implies legal responsibility. It sets out a standard for declaring that there is a problem as soon as someone—anyone—is aware, and, where used correctly, it reduces the agony of victims and their families facing the block of institutional silence. Where it is not used, the CQC will inspect and consider why.

I support the proposal from the noble Lord, Lord Ponsonby, that the duty of candour should cover public authorities, public servants and officials at major incidents, and they should follow it. Just think if the NHS had used the duty of candour for victims and families of the infected blood scandal, or if the police had used it in relation to Hillsborough instead of blaming the fans, or if it had been used by the council and other bodies involved in the fire at Grenfell Tower. However, just as importantly, the duty of candour changes organisations so that, where possible, they think before the event, which can also prevent major incidents. Staff put the safety of people first in all that they do. It will not prevent all major incidents, but it can either reduce or stop the consequences of a potential disaster and make the aftermath much easier to live with.

My Lords, I thank the noble Lord, Lord Ponsonby, and all noble Lords who have spoken to this amendment, which would place a statutory duty of candour on all public authorities, public servants and officials in relation to a major incident. This is, if I may say so, a modified version of the Public Authority (Accountability) Bill that was previously put forward, which is known as the Hillsborough law, so the underlying question here is: should we have in statute, in one form or another, a Hillsborough law?

There is much common ground between us. At no point are transparency and candour more important than in the aftermath of a major incident. As the Government said in their Statement of 6 December in response to Bishop James’s 2017 report, it is of the highest importance to combat

“unforgivable forms of institutional obstruction and obfuscation” and the “inexcusable … defensiveness” of public bodies in “their own self-interest”. We agree with Bishop James, and indeed with the speakers today, that what is needed is a change of culture. The question is: what is the best and most effective route to bring about that change?

In essence, for the reasons already set out in the Government’s Hillsborough Statement on 6 December and the debate that day in your Lordships’ House, the Government do not believe that this amendment, applying to officials across the whole public sector, would be an appropriate or effective way to prevent a repeat of the failings that occurred in the aftermath of Hillsborough. First, as a general point, a central feature of a case such as Hillsborough, and other similar cases, is the imbalance of power between the authorities on the one hand and the bereaved on the other. The creation of the independent public advocate for a major incident—who will no doubt pursue the victims’ interests with terrier-like determination, I hope—will go a long way towards rebalancing that previous imbalance of power and securing equality of arms. I suggest that the institution of the IPA is in itself a lasting tribute to the Hillsborough families who have campaigned to ensure that no other families ever have to suffer in the same way.

In addition, still on the equality of arms point, the Government have removed the legal aid means test for exceptional case funding for inquests and will consult on expanding legal aid for inquests where an IPA is appointed or terrorist offences are involved. Cabinet Office guidance will reaffirm the expectation that legal expenditure by public authorities should not be excessive and should be published. Again, those matters should go a long way towards rebalancing the position between the various parties.

The second point, which I think the right reverend prelate the Bishop of Manchester was, in a sense, already making, is that the Government have already tackled directly the central failure in the aftermath of Hillsborough, which was a failure by the police. As noble Lords will be aware, in 2020 the Government introduced a statutory duty of co-operation for individual police officers to ensure that they participate openly and professionally with investigations, inquiries and other formal proceedings. A failure to co-operate is a breach of the standards of professional behaviour and could result in disciplinary sanctions, including dismissal.

In the Criminal Justice Bill that was introduced in November 2023, which I hope will be before your Lordships’ House before too long, the Government are placing a statutory duty on the College of Policing to issue a code of practice relating to ethical policing. In advance of that, as has been mentioned, the Code of Practice for Ethical Policing, was laid in Parliament on 6 December under existing powers alongside the Government’s response to Bishop James’s report. That code, directed at chief constables, includes a duty to ensure candour and openness in the forces that they lead, to ensure that everyone in policing is clear what is expected of them and to provide confidence to the public that the highest standards will be met. That will be monitored, and chief constables will be monitored, by His Majesty’s Inspectorate of Constabulary and Fire & Rescue Services and by local police and crime commissioners.

A further area of concern, which the noble Baroness, Lady Brinton, referred to, relates to the NHS. One notes the Francis report of some years ago, and there are continuing concerns, for example, around events at the Countess of Chester Hospital that are the subject of a statutory inquiry by Lady Justice Thirlwall. There is already a duty of candour on the NHS under the Health and Social Care Act 2008 (Regulated Activities) Regulations 2014 that covers everybody who is registered with the Care Quality Commission. The Government are reviewing that provision to see whether it is working properly. There may be details to discuss around exactly who it should cover and collaboration with the General Medical Council and the Nursing and Midwifery Council to ensure that the professional standards march in line with the statutory standards—that may be a matter for investigation—but, in principle, in the NHS, those duties already exist.

The same is also true, in effect, for statutory inquiries under the Inquiries Act 2005, backed by criminal penalties. It refers to court proceedings, where full disclosure is required of all litigants under well-established principles, and a duty of candour is expected by public authorities, notably in judicial review. For inquests, coroners have powers under the Coroners and Justice Act 2009 to obtain documents, administer oaths and question witnesses. There is a Ministry of Justice protocol that was specifically revised following Bishop James’s report, which requires government departments and lawyers to approach inquests with openness, honesty and full disclosure. A range of matters is already covered, so that leaves non-statutory inquiries, which the chairperson can request are converted into statutory inquiries in the event of obfuscation or non-cooperation. The Government feel that, in effect, the ground is already sufficiently covered in a very targeted way.

As for public servants working in central government, the Government have already reaffirmed their commitment to ensuring openness and transparency, as set out by my right honourable friend the Deputy Prime Minister when signing the Hillsborough Charter on 6 December 2023. The commitments in the charter are reflected in the existing framework of obligations and codes that apply to all those who work in government, such as the Civil Service Code, the Code of Conduct for Special Advisers and the Ministerial Code, to which we can add that public appointees to the boards of UK public bodies are subject to the Code of Conduct for Board Members of Public Bodies, which, in turn, incorporates the Nolan principles. Those matters, in the Government’s view, reveal a quite comprehensive coverage of the issue that we are discussing.

The Government also consider that the amendment in its present form would be practically unworkable, applying as it does directly to all public officials who may be involved in the context of a major incident. It would apparently require maybe dozens of officials, junior as well as senior, to come to individual and autonomous views on whether, for example, a particular document was in scope, or irrelevant, or privileged or covered by national security or whatever. That could easily give rise to many difficult and conflicting views, making the whole process almost impossible to manage and drawing civil servants into conflict with each other and their employers.

For those essential reasons, the Government do not feel that this is an appropriate way forward. The speakers in this debate did not raise the Post Office, which in some ways colours a lot of the background to this. On that point, I can say that the proposed legislation on the Post Office is clearly being driven by some very serious incidents of prosecutorial misconduct in breach of existing rules. We do not need new rules; they did not follow the old rules.

It is good to see the Minister back in his place; we are pleased to have him back and I am very grateful for his comments. He mentioned the Post Office. I spoke about the importance of culture and making sure that things do not happen. While he is absolutely right on the legal side, there is an issue about the personal duty of candour that changes behaviour. Does he recognise that?

Yes, the Government recognise that up to a point. What we are discussing is the right way to get there. The Government are not convinced that this statutory amendment is the right way, but there are other ways of doing it, through our codes and the provisions that we have for the NHS, the police and now the Hillsborough charter—the matters that have been mentioned.

I cannot go into specific detail on the Post Office, because we do not know what has happened, but the duty on a prosecutor to follow the codes that they must follow is a duty on that individual. I will not go any further than to make that comment.

Finally, in the spring, the Government hope to publish their response to a report by the Law Commission on reforming the common-law criminal offence of misconduct in a public office. We have to await that response to see whether it bears on the issues that we are discussing. With those points made, the Government recognise the sensitivity of and differing views on this matter. The Lord Chancellor’s Oral Statement on 6 December said, very explicitly, that we will keep it under review. While legislation alone and the Government’s view cannot ensure a culture of openness, honesty and candour, we do not rule out bringing forward legislation at some future point if we are persuaded that it is needed. The matter is still under reflection, from that point of view.

I thank all noble Lords who have spoken in this short debate. The noble Baroness, Lady Brinton, summed it up, really: while this is a probing amendment, it is about changing the culture and behaviour of organisations. I was talking to my noble friend Lady Thornton during this debate. She sits on an NHS trust and was saying that a culture is embedded in the way that the NHS practises its procedures now, which has come from it having a duty of candour for the last 10 or 11 years. The Minister made other points about addressing the same issues, so it is not as though one set of responses precludes another, such as the duty of candour.

Of course, I am pleased that the Lord Chancellor has said that he will keep an open mind on this and keep the matter under review. I acknowledge the Minister’s points about creating the independent advocate role, the review of legal aid and individual professional standards, which are being looked at, but none of them precludes also having a duty of candour. That was the point made by all who spoke in support of the amendment. Nevertheless, I thank the Minister for his response and beg leave to withdraw Amendment 133.

Amendment 133 withdrawn.

Clause 39 agreed.

Amendment 133ZA not moved.

Clause 40: Compensation for victims of the infected blood scandal