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Public Office (Accountability) Bill

My Lords, it is a pleasure to follow the noble Baroness, Lady Ritchie, and to welcome the noble Lord, Lord Lemos, to his new role and thank him for meeting with us last week. I also want to thank the noble Baroness, Lady Levitt, for all the work she did on the Bill earlier in the summer.

I declare an interest as a director of the Joseph Rowntree Reform Trust. Police Spies Out of Lives, which is run by victims in the Spycops case, came to the trust some years ago and asked us if we would help it find some support for the beginning of the inquest. “Yes”, we said: “Two years”. We are still funding it 11 years on, and that is an absolute scandal.

I start with a tribute from these Benches to all the victims and families in the Hillsborough tragedy, but also to the many, many others to whom noble Lords have referred during the debate today. I am also grateful to the many organisations which have engaged with us and sent us briefings.

Regardless of where the briefings have come from—whether charities working with victims of appalling injustice at the hands of the state, or legal and health bodies with formal roles in delivering transparent and accountable services—there is one clear message for this Government, which I think they should be encouraged by. We need this Bill, but it does need strengthening—we have heard that from most sides of the House today—or perhaps it will not work quite as Ministers want.

The noble Lord, Lord Faulkner, said that we need a duty of candour because the Hillsborough police admitted that they lied. I was very taken with the remarks of the noble Lord, Lord Bichard, who spoke about how trust had been lost as a result of the many shocking cases. We have to make this Bill work, but, importantly, officials—police, in the Hillsborough case that the noble Lord, Lord Faulkner, mentioned—not lying in the first place must be the fundamental starting point.

As we have heard, the origins of this Bill—often called the Hillsborough law—are the disaster in 1989 and the decades-long campaign by the families and

survivors, including the work of our new Prime Minister. The noble Lord, Lord Blunkett, spoke on the impressive but tragic effectiveness of families and survivors. One of the things that impressed me most with my portfolio, covering most of the inquiries and compensation schemes, is how the survivors of one issue get in touch and work with their colleagues on others. That has been one of the few really positive things I have seen over the last few years. The noble Lord, Lord Blunkett, was right that the lies told that day are an absolute stain on the police, but as we now know, this has been the case in other tragedies as well.

We on these Benches have consistently supported the principle of a duty of candour. We will scrutinise the Bill to ensure that it delivers genuine accountability and works in practice. Our specific concerns remain on implementation, legal aid, whistleblowing enforcement and senior responsibility. That sounds like an awful lot of things, but they are all woven into each other.

Many of our concerns are based on experiences we have heard from those who have been victims. I have worked closely in the last few years with the infected blood survivors and victims. There is still a very unsatisfactory response after 50 years. I met some of the students who were at Lord Mayor Treloar School 51 years ago. The boys who had haemophilia—who I did a theatre workshop with, and they helped me with cooking for my theatre group—are dead, all of them. They were infected by a doctor who did not tell either them or their parents that they were guinea pigs for a new type of blood that had come from America. The noble Baroness, Lady May, said that the Hillsborough lies started on that day, but the same was not true for these children. There was a lie of omission. Those children were absolutely deserted. No one has been held to account for that and, although some cases are being looked at by the police, many of the doctors and officials who did that are now dead, and there is no paperwork whatsoever from that long ago.

But it is not just about the past. For the infected blood community, even last month, one of the previous compensation schemes, the English Infected Blood Compensation Scheme, wrote to a number of the widows in the scheme saying that they had erroneously been given money and it must be repaid immediately. They would be allowed a year, but in some cases that is up to £1,000 a month and they are widows on pensions. This group of victims has not even been able to start to apply for what they are entitled to under the new scheme that was set up two years ago because they are affected, not infected, victims. Helpfully, both IBCA and the Government have stopped that. We do not know how many are affected, but it is not in the past—that was just a couple of months ago. Why did a scheme think it was appropriate to do that?

The Post Office Horizon scandal, which has been championed by the noble Lords, Lord Arbuthnot and Lord Beamish, and others, has not resolved matters either. Not only do postmasters not have just settlements but many are still waiting for justice and for their wrong criminal convictions to be overturned. It is also about the new scheme for Capture, which a number of us asked questions about two years ago. I believe what Ministers said at the Dispatch Box: that they believed

what they had been told, which was that there was no risk at all from Capture because it was completely different. Two years on, we are discovering that is not the case.

It is about the Grenfell disaster where, 10 years on, justice has still not been delivered to the families of those who died and those who were injured. It is about the Windrush scandal, outlined by my noble friend Lady Benjamin, where people were actually threatened with deportation because papers had been lost. Those were the people who were invited to come to the UK to help us develop our life after the Second World War. It is about the atomic bomb veterans from 60 years ago who are still waiting to get on to the first steps. It is about the victims of childhood sexual abuse, both historic and more recent. The IICSA inquiry report and recent court cases have demonstrated that our children are still not safe without proper mandatory reporting and a duty of candour. It is about the continuing scandal of disabling use of vaginal mesh, as well as sodium valproate being given to young women with epilepsy who became pregnant: 20,000 of their children have developmental and other physical disabilities. Some of that is still happening. This is a real scandal.

In Committee and on Report we will be testing the efficacy of the details of this Bill and whether those scandals and tragedies will be prevented and managed in the future. My noble friend Lady Ludford set out the importance of the ECHR in underpinning the moral framework: that real truth is spoken to power and justice is not denied by the state.

The noble Lord, Lord Howard, explained how public officials and Ministers can unwittingly not tell the truth when it has been hidden from them. I think we have seen that from Ministers from every party in two or three of these scandals: the postmasters and the Horizon scheme saw it, as well as infected blood.

We note and are particularly interested in the Long Title to the Bill. It applies to the conduct of public authorities and public officials at all times and is not confined to post-failure consideration and investigation. We also note the purpose of the Bill defined in Clause 1(2)(b), which imposes a requirement on public authorities to act at all times

“to maintain ethical conduct, candour, transparency and frankness”

and is similarly unconfined.

As others have said, we are particularly concerned in this day and age about that golden thread where public services may commission things but not actually deliver them, and in the relationship of some of the subcontractors and whether they will be caught by this. I know that some people think they will all be; I am not convinced.

As the noble Baroness, Lady Benjamin, said, we would like to see the enforcement mechanisms in Chapter 2 of Part 2 strengthened on the level applicable by Part 1 to inquiries and investigations: a very clear duty, breach of which gives rise to criminal sanction in the terms of Clause 5, or at least at a comparable level.

The noble Lord, Lord Anderson of Ipswich, examined the principles of misconduct in public office and how

far it will extend beyond the most senior people or to subcontractors. As I have just said, that is an area we want to look at.

My noble friends Lady Kramer, Lady Hamwee and Lord Rennard on our Benches raised the vital issue of protection of those trying to whistleblow. We do not believe that the Employment Rights Act 1966 and the Public Interest Disclosure Act 1998—which amends the previous Bill—both of which set out how whistleblowing is protected, work in practice. The legislation has patently failed, and this Bill will also fail if whistleblowing is not strengthened too. As my noble friend Lady Kramer said, we will bring forward some amendments, as far as we can within scope, to make sure that whistleblowing can start to work, and not just for employees.

In Committee, we will also seek clarification on a number of issues around the applicability of the Bill to subcontractors and their suppliers. The supply chain in the Grenfell Tower tragedy was a particular problem, as some noble Lords outlined.

My noble friend Lady Hamwee rightly asked for clarity on the role and resources of the Independent Public Advocate, supported by the noble Baroness, Lady May, and others. We must not create an important body to set it up to fail.

This Bill will not work without legal aid provision and I will not repeat what many of the people who spoke about it said, except to say that the briefings from the Bar Council and Inquest absolutely said the same thing. There has to be a level playing field for families and survivors. Please let that happen.

The NHS duty of candour is not working, as others have already outlined. In 2013, the Francis report set out the failings in the Mid Staffs Hospital Trust. I will quote just half a paragraph:

“This was primarily caused by a serious failure on the part of a provider Trust Board. It did not listen … 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”.

That sounds very familiar because it is almost what Donna Ockenden said in her report earlier this year about the many maternity scandals. We have the evidence that the system in the NHS is not working.

I want to move, as I close, to two things that I think we can hope for in the future. Many noble Lords will know that I am passionate about mandatory reporting for child sex abuse, as outlined in the independent inquiry. We have had a case this last week and I just want to ask the Minister a question. Sally-Anne Bowen was convicted a couple of days ago and, from what has been reported during the trial, we have concerns that the law would not have required the concerns or allegations to be brought to the attention of the statutory authorities at the time. That is why prescribed mandatory reporting is so important. Can the Minister write to me to let me know whether that would be the case?

In summation, we really need prevention—excuse me, a lot of people have coughs today—of the need for compensation. What is a working system? My positive notes are two. France, during the early years of the infected blood scandal, was very different from the

UK and Canada. They have a different judicial system from ours and in the late 1980s, the judiciary became really concerned and started to investigate. They brought two cases: one started in 1988 and finished in 1990, another one later in the 1990s. The result was that about six people were brought to trial. One senior health official was found guilty and sent to prison. One very senior Minister was found guilty and not sent to prison—I do not quite know what else happened—but the others were not found guilty, because they were not part of that golden thread of knowledge and the duty of candour therefore could not have applied to them. For the many people who have been concerned, the French have learned how to do this right. The loss of trust in the public as these cases came to light was changed radically by those court cases.

My final very brief example is from Australia, which has introduced mandatory reporting in child sex abuse and has a full duty of candour. But it is not just about the law; there is a no-blame culture throughout the system, whether that is in schools, hospitals or children’s social care. That has taken some time to get right but, as a result, there are now more possible cases being reported, which is actually what we want to see and hear, and staff are not scared that they will lose their job, because they will not. I hope that this is what we will get to at the end of this Bill. We may need to review it after it comes into force, but let us get on with it.

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