Amendment 113

Victims and Prisoners Bill - Report (3rd Day) – in the House of Lords at 5:00 pm on 30 April 2024.

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Baroness Thornton:

Moved by Baroness Thornton

113: 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 statement This 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.

Photo of Baroness Thornton Baroness Thornton Shadow Spokesperson (Equalities and Women's Issues), Shadow Spokesperson (Culture, Media and Sport)

My Lords, I am speaking to Amendment 113 on the duty of candour in place of my noble friend Lord Ponsonby and with the support of the noble Baroness, Lady Brinton, and the right reverend Prelate the Bishop of Manchester.

I took the time to read the reasons why the Minister did not want us to proceed with this in Committee. I remind the noble Earl that we agreed about the duty of candour in 2014 when we put it on the statute book, in, I suspect, the very large Bill of the now noble Lord, Lord Lansley, on the reorganisation of the NHS, or one that followed shortly after. The whole House agreed that the duty of candour was an important matter within the NHS, and it has become part of the culture of our NHS. I should perhaps declare an interest as a non-executive director of the Whittington Hospital and part of its governance structure.

This amendment seeks to extend that duty to all public organisations—I thank Inquest and others for their briefings—to cover those operating across all public services. This has been Labour policy for some considerable time. Inquest believes, as we do, that there is an urgent need to introduce a duty of candour for those operating across all public services. 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. We are talking about major incidents here, so this is very important. This duty would enable public servants and others delivering state services to carry out their role diligently, while empowering them to flag dangerous practices that risk lives.

In Committee, the Minister said that he thought this could

“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

It seems to me that a duty of candour does exactly the opposite: it actually allows for a transparent discussion about what might have gone wrong.

I am not going to go into any more detail, because we had a very good discussion about this in Committee. However, Justice’s report When Things Go Wrong found that

“In both inquests and inquiries, lack of candour and institutional defensiveness on the part of State and corporate interested persons and core participants are invariably cited as a cause of further suffering and a barrier to accountability”.

If noble Lords think back to Hillsborough and other inquiries, how true that statement is. That is why this is important.

Bishpop James Jones concluded that South Yorkshire Police’s

“repeated failure to fully and unequivocally accept the findings of independent inquiries and reviews has undoubtedly caused pain to the bereaved families”.

That is the point of this amendment. Failure to make full disclosure and to act with transparency can lead to lengthy delays in investigations and inquiries, and actually make things so much worse for the victims involved. 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, we hope, the possibility of evasiveness. I beg to move.

Photo of The Bishop of Lincoln The Bishop of Lincoln Bishop

My Lords, I support the amendment tabled by the noble Lord, Lord Ponsonby. My right reverend friend the Bishop of Manchester is also a strong supporter of this amendment, which he has signed, and he regrets that he cannot be in his place today to speak to it himself.

As we have heard, six years ago, the former Bishop of Liverpool published his report on the Hillsborough disaster, The Patronising Disposition of Unaccountable Power. This report recommended the introduction of a duty of candour for the police, which was adopted in the College of Policing’s Code of Practice for Ethical Policing only earlier this year. I am glad that issuing a code of practice for ethical policing will become a statutory duty under the Criminal Justice Bill, but this is just one body. A duty of candour needs to apply to all public authorities. More often than not, crises, scandals and disasters which require an inquiry involve multiple, overlapping public agencies, all of which need to be under the same compulsory responsibility to act with transparency for that inquiry to be fully effective.

A duty of candour would challenge the instinct of institutions to focus primarily on reputation management in the wake of crises. This instinct leads only to more suffering and delay for affected persons. There is also a more pervasive effect whereby institutions are unwilling to be candid about their failures, so it is extremely difficult to learn from past mistakes. I do not believe that a duty would solve every problem, but it would certainly be a step in the right direction.

The Minister suggested in Committee that the creation of an independent public advocate would go some way to addressing the power imbalances that this duty of candour seeks to address. I welcome the inclusion of the IPA within the Bill, but its creation does not automatically mean that all public bodies will be miraculously compelled to act with candour, without a statutory duty. I welcome these duties, but surely it would be simpler and easier to include a general duty for all public bodies as part of this Bill rather than taking a piecemeal approach. It would also have the welcome effect of changing attitudes and behaviour in public bodies across the board. The Minister said in Committee:

“At no point are transparency and candour more important than in the aftermath of a major incident.”.—[Official Report, 26/2/24; col. 817.]

Will he reiterate that statement today by committing to a statutory duty of candour for all public authorities?

Photo of Baroness Brinton Baroness Brinton Liberal Democrat 5:15, 30 April 2024

My Lords, it is an honour to follow the right reverend Prelate the Bishop of Lincoln and the noble Baroness, Lady Thornton. I have also signed Amendment 113. I will not repeat everything that I said in Committee, but the experience of the duty of candour in the NHS has been a very useful example. As we have heard, it is a professional responsibility to be open and honest with patients and families when something has gone wrong. It also allows people to say sorry. Even in the NHS, the lawyers still do not want people to say sorry, but it is really important. Above all, where the duty of candour works well, it has changed the culture and values of the organisation.

I make that point because this is not just about after the event. Having a duty of candour can completely change the delivery of the service. It makes everybody who works in it—and, in the NHS, those who are regulated—behave and think differently. In exceptional examples, it will avoid disasters, which is important. That is why I support Amendment 113. It clearly does not work perfectly, because we are hearing stories of things that have gone badly wrong in hospitals, but I suspect that some of those would not have come out if the duty of candour were not in place. That is what I mean about a change of culture.

I will not say much more. Now is absolutely the time to expand the duty of candour beyond the NHS. I agree with everything that the right reverend Prelate said about making sure that it applies to all public bodies and to public servants, because this is also about the behaviour of senior individuals. If the noble Lord, Lord Ponsonby, wishes to test the opinion of the House, these Benches will support him.

Photo of Earl Howe Earl Howe Deputy Leader of the House of Lords

My Lords, I am grateful to the noble Baroness, Lady Thornton, for Amendment 113. As she explained, it seeks to place a statutory duty of candour on all public authorities, public servants and officials after a major incident has been declared in writing by the Secretary of State.

The Government wholeheartedly agree that it is of the highest importance that we combat unforgivable forms of institutional obstruction and obfuscation. It is exactly for that reason that the Deputy Prime Minister signed the Hillsborough charter on behalf of the Government, which specifically addresses placing the public interest above one’s own reputation and approaching all forms of public scrutiny, including public inquiries and inquests, with candour and in an open, honest and transparent way. We want the charter to become part of the culture of what it means to be a public servant in Britain. The Deputy Prime Minister wrote to all departments to ensure that everyone who works in government is aware of the Hillsborough charter and what it means for the way that they work. Information on the charter has already been added to the Government’s propriety and ethics training and will shortly form part of the induction that all new civil servants are expected to take.

We are determined that the charter and its principles should be embedded into public life, and we are encouraging other public bodies and local authorities to follow our example by doing the same—a number of them have done so.

When it comes to statutory duties of candour, which have been mentioned by the noble Baroness, Lady Brinton, and others, the Government have taken strong and decisive actions in policing and in health and social care. However, different parts of the public sector have different roles and circumstances. This amendment seeks to capture everyone under one umbrella. While I recognise the good intention behind it, I do not believe—and nor do the Government—that in practice, it would be as effective or as proportionate a measure.

That is not to say that there is nothing in place already to bind other public servants. On the contrary, a very clear framework of legal and ethical duties most certainly exists, and the Government believe that this framework—which includes the Nolan principles on public life and the Civil Service Code—is fit for purpose and appropriate to reflect the myriad professional functions performed by the public sector.

The noble Baroness may argue that given the complexity of the existing framework, this amendment serves to bring it all together in one place, making it all more accessible and easier to understand. If she argues that, I am afraid I cannot agree. The amendment just cannot sit neatly on top of the existing frameworks. We should not just assume that it can work with the existing framework of duties, which are carefully calibrated for the specific circumstance that they bite on.

Given that no one wants to abandon the Nolan principles or the Civil Service Code, that poses a real problem. The Government firmly believe in the benefits of having a bespoke approach to different parts of the public sector, because each part is different. We are not convinced that a single overarching duty would work well in practice.

It is clear from our debates on the subject that a particular concern is the conduct of public officials at inquests and statutory inquiries. It is very important to understand something about those particular contexts. I can confirm that, regardless of one’s status or profession, powers already exist—backed by criminal penalties—to obtain documents and testimony in an inquest or statutory inquiry. As noble Lords will know, the same is true of court proceedings, where relevant disclosure is required by all litigants. If the concern here is primarily inquests, inquiries, and the like, it is unclear what this amendment would add.

As Bishop James himself acknowledged, this is an extremely complex area, and I do not think that anyone would disagree with that. He also said that the most important thing is for all bodies who sign up to the charter to

“make the behaviours described in the charter a reality in practice”.

In my view, it would be unwise to rush forward with an amendment like this one. I believe that it would be disruptive; it would not work well in practice; and it could also have consequences which have not yet been realised. If we are going to put further statutory duties in place, the subject needs a lot more thought by a lot more people. I emphasise that the Government share the desire to see an end to unacceptable institutional defensiveness, but the key to doing that is to focus on changing culture across the public sector.

Let us make progress on our commitments in the Hillsborough charter, and indeed elsewhere; let us monitor how they are embedding. If we believe that there are further issues to address, we will not hesitate to take the appropriate action. In the light of what I have said, I hope the noble Baroness will reflect and perhaps feel able to withdraw the amendment.

Photo of Baroness Thornton Baroness Thornton Shadow Spokesperson (Equalities and Women's Issues), Shadow Spokesperson (Culture, Media and Sport)

I thank the noble Earl for his usual comprehensive and very straightforward summing up, but we do not agree with him.

Part of the problem is that, although the Hillsborough charter may be comprehensive, a large part of it is voluntary. What we are discussing is something that covers everybody. Frankly, if a duty of candour can be applied equally in a hospital to the most senior consultant and a porter, I cannot see why it cannot be applied in this case to everybody. I am a non-executive director, and my chair and I both have the same duty of candour within the NHS, wherever we work and whatever we do. A duty of candour is not a silver bullet—I absolutely accept that it is often very tough to implement, as the noble Baroness, Lady Brinton, knows—but it can change an organisation over a period of time.

The noble Earl himself has found many ways to achieve many things in his public duty, including the duty of candour in the NHS. It must be possible to say that all public servants should be bound by a duty of candour and to ensure that it is possible to do that regardless of whatever codes they are following and whatever they are doing.

Photo of Baroness Butler-Sloss Baroness Butler-Sloss Chair, Ecclesiastical Committee (Joint Committee), Chair, Ecclesiastical Committee (Joint Committee)

I am grateful to the noble Baroness. Apart from inquests and statutory inquiries, what are the circumstances in which she expects this to be necessary?

Photo of Baroness Thornton Baroness Thornton Shadow Spokesperson (Equalities and Women's Issues), Shadow Spokesperson (Culture, Media and Sport)

Earlier in the debate, it was quite clear from our discussions about the report on Hillsborough that it should cover everybody who gives evidence and is involved in an inquiry or whatever arises out of a serious incident. That is what we are seeking to do. On that basis, I would like to test the opinion of the House.

Ayes 238, Noes 217.

Division number 3 Victims and Prisoners Bill - Report (3rd Day) — Amendment 113

Aye: 236 Members of the House of Lords

No: 215 Members of the House of Lords

Aye: A-Z by last name

Tellers

No: A-Z by last name

Tellers

Amendment 113 agreed.