Official Report: Minutes of Evidence

The Chairperson (Mr O'Toole): We are joined by David Hughes and Jonathan McNaught from the Department of Finance. David is the director of corporate services, and Jonathan is from the corporate services division. David, please give us an opening statement.

Mr David Hughes (Department of Finance): I am grateful for the opportunity to brief the Committee on the Bill. I will walk through the relevant parts of the Bill and then set out some of the context, which, I trust, will be helpful.

The Bill has its origins in the campaign for legislative change in light of the findings of the Hillsborough independent panel. Members may recall a private Member's Bill being tabled in Parliament earlier this year to achieve those ends. It is usually referred to as the "Hillsborough law". The Labour Party had committed to legislating once in government, and this is the Bill that has been introduced to meet that commitment. It replaces the private Member's Bill.

The immediate context is the Hillsborough disaster, but the intention behind the legislation is to transform the behaviours of public authorities and public officials generally and to address failures that have been identified in other inquiries and investigations. Fundamentally, the object, as set out in clause 1, is to ensure:

The UK Government's view has been that the Bill should ideally apply UK-wide and that the provisions, including the duty of candour and the new offences, provide a package of measures designed for cultural change in accountability. In our context, the Executive agreed, in December 2024, to explore whether our inclusion in the Bill would serve to meet recommendation 5 of the infected blood inquiry. I am also aware that there has been interest in its relevance to the Chinook crash in 1994.

The Bill was originally to be published earlier in the year, with a target for introduction before the anniversary of the Hillsborough disaster in April. Short timescales meant that Executive agreement to inclusion in the drafting of the Bill was sought under urgent procedure and was given on a provisional basis, acknowledging that there was not time to do a proper assessment of the implications and the impact of the clauses. The Minister set out to UK Ministers that agreement to the provisions extending here was conditional upon an assessment of risk prior to any legislative consent motion (LCM) being introduced.

The Bill was not, in the end, introduced in April. It continued to be developed over the spring and summer. During that time, although, at official level, we saw drafts and discussed policy with UK officials, we were not able to engage outside our Departments with the wider range of public authorities. Consideration of the clauses was therefore somewhat limited and could not inform the Minister's position any further.

There has been internal discussion of the clauses, some of which have, with ministerial agreement, been drafted to extend here; some of which, it has been agreed at ministerial level, ought to be drafted to extend here but have not yet been; and some of which are still under consideration.

The Department has not yet brought a legislative consent memorandum. That will depend on Executive agreement to do so. It is without doubt a cross-cutting matter since it engages the public sector in its entirety. The Executive's decision will be informed by inputs from across the Departments and reflecting the views of various stakeholders, which Departments have been garnering, as well, of course, by the views of the Committee.

The provisional position, though, is informed by two principles. First, there is a basic expectation that public officials and public authorities here should not be held to a lower standard than those in Great Britain. Secondly, this is intended to be the Executive's response to the specific recommendations of the infected blood inquiry in parallel with the response of the other Administrations.

I will set out the shape of the Bill, referring to elements that are currently drafted to extend here and other elements that may be extended here.

Part 1 is the purpose clause, which has no direct legislative effect but sets out the intent behind the Bill.

Clauses 2 to 8 are Part 2, chapter 1. That creates a duty upon public authorities and public officials to act at all times:

There is a duty to notify the person leading an investigation or inquiry that one has relevant input to make and a duty to provide all such assistance as one can reasonably give. That duty is always, as it were, switched on, but there are provisions that allow the person leading the investigation to switch off the duty to notify in cases such as the COVID inquiry, where there is an imperative to manage the sheer volume of relevant inputs.

The duty of candour and assistance applies to all public authorities and public officials, and those are defined in schedule 2. The duty is also extended to include anyone with "relevant public responsibility". That might be, for example, a health and safety responsibility in a specific case or as a service provider with a significant impact on members of the public. There is then a criminal offence of failing to comply with the duty of candour and assistance.

Schedule 1 makes amendments to the Inquiries Act 2005, the Coroners Act (Northern Ireland) 1959 and other legislation to embed this duty within existing statutory frameworks. It also makes specific arrangements about non-statutory inquiries and provides powers to apply the duty to specified investigations or a specified type of investigation, and that includes a power for relevant Northern Ireland Departments to make regulations.

Those provisions have been drafted to extend here, including schedule 2, to ensure that it has equivalent effect here and covers the same public authorities and public officials.

Clauses 9 and 10 — that is Part 2, chapter 2 — place a duty on public authorities to:

Specifically, authorities must adopt a code of ethical conduct, publish it and make people aware of it and of the consequences of breaching it. Specific details have to be included, starting with an expectation:

Part 2, chapter 2 applies to public authorities but according to a slightly different definition of public authority from that applying to Part 2, chapter 1. I apologise that this is quite convoluted, and I have to remind myself of it every so often. The definition for chapter 1 includes bodies performing functions of a public nature. The definition for chapter 2 does not include that general public functions test and is therefore a bit narrower.

Clause 11 creates a criminal offence of misleading the public. It is intended to address instances of deliberate and seriously improper conduct. It is also important to note that that refers to acts to mislead the public in general and is not intended to capture individual interactions. That provision was drafted relatively late in the development of the Bill, and there has not been time to draft the intended extension here; nevertheless, the Minister has indicated that he is content in principle that it is extended here, subject to the legislative consent motion. We anticipate that that extension will be affected by amendment during the passage of the Bill.

Schedule 3 contains some details about the nature of the new offences created in clause 5 and clause 11.

Clauses 12 to 17 relate to misconduct in public office. Those provisions abolish the common law offence of misconduct in public office and replace it with two new statutory offences. The first consists of using public office to obtain a benefit or cause another to suffer detriment and, in so doing, committing a seriously improper act. The second is the breach of duty to prevent death or serious injury. The intention is simply to replicate the parameters of the common law offence within a statutory framework and, therefore, to provide greater clarity and certainty for the justice system. Those provisions were originally recommended following a Law Commission review of misconduct in public office published in 2020. The Bill has provided a vehicle for making that legislation, which, although it does not flow from the Hillsborough disaster or any specific inquiry recommendations, nevertheless, is equally concerned with standards of behaviour in public service.

Schedule 4 sets out who is caught by the provision; that is, who holds public office. It is worth noting that that is a different definition from the definition of public authority and public official in schedule 2. The difference is essentially that a holder of public office will be someone in a position that really only exists in the public sphere, such as Ministers, civil servants, the armed forces, police, judiciary and so on. It does not include, for instance, doctors and teachers. That reflects the existing parameters of the common law offence of misconduct in public office.

Although the provision has not been drafted to extend here, the Minister has indicated that he supports its extension. The common law offence in this jurisdiction is, to all practical purposes, identical to that in England and Wales and is being used in broadly similar ways, albeit on a smaller scale. We anticipate that the extension should be achieved by amendment during the passage of the Bill.

Part 4 comprises clause 18 and refers to schedule 6. That applies only to England and Wales, extending legal aid to families at inquests and making provisions governing the activity of public authorities at inquiries and investigations.

Part 5, clauses 19 to 26, include application to the Crown, consequential repeal, powers to make regulations, interpretation, extent and commencement provisions.

The next steps for us will be for the Minister to bring a paper to the Executive seeking a decision on a legislative consent motion. That will need to address provisions that were not in scope at the time of the original decision in March. It will also need to assess what risk is attached to following the policy being set by the UK Government, informed by the engagement that the Departments have been doing with their public-sector stakeholders.

The Second Reading of the Bill was on Monday evening. The next stage, which is Commons Committee Stage, is expected to begin in late November.

The Chairperson (Mr O'Toole): This is a very big one, and there is lots for us to scrutinise. First, I will crystallise where we are, and then I will bring in the Deputy Chair, followed by Gerry Carroll, Brian and anyone else who indicates that they wish to ask a question.

If I have understood it, the position is that the Minister supports, in broad terms, the provisions in the Bill but has not yet brought forward a formal proposal to the Executive that the Executive agree the legislative consent motion.

Mr Hughes: That is right. The Executive as a whole will need to decide to support the legislative consent motion, clearly, because it is cross-cutting. The Minister of Finance is content that, in principle, the legislation should apply here, but, because of the pace at which the Bill was developed — there were some late inclusions — the consideration of its impact and any risk that might attach to it and the need to engage stakeholders outside the Departments, the final recommendation to the Executive can be made only once we have had the opportunity to go through the stages of examining it with stakeholders and partners.

The Chairperson (Mr O'Toole): Who are the stakeholders whose feedback you are seeking?

Mr Hughes: Each Department has been invited to go out to their public-sector employers, effectively — the authorities, public office holders and officials that the Bill will capture — to get insight from the employing sectors. For example, the Department of Justice will engage with the Police Service and, within the Department, the Prison Service, and so on; the Department for Communities will engage with local government; and the Department of Education will engage with the education sector.

The Chairperson (Mr O'Toole): When you refer to the sectors, the education sector or the health sector, for example, do you mean that the Department of Education will go to just the Education Authority and the Health Department will go to the trusts or that they will also go to the teaching unions, UNISON, the RCN and whomever else? Will they go to trade unions too?

Mr Hughes: It will be for the Departments to determine how they engage with stakeholders. The Department of Finance's principal stakeholder is an internal one, in that its interest is in the Civil Service.

The Chairperson (Mr O'Toole): That is for the Department. OK. You are the —

Mr Hughes: Lead Department.

The Chairperson (Mr O'Toole): — lead Department for the whole of devolved government.

What is the deadline for this? Committee Stage at Westminster has begun.

Mr Hughes: We need a decision on the legislative consent motion before Third Reading, which will not be until the new year, so the intention is that we go to the Executive at the end of November.

The Chairperson (Mr O'Toole): It should go without saying, and I presume that you have it in mind that we would not like a repeat of what happened with the Data (Use and Access) Bill —

Mr Hughes: We are trying to keep as much hold on this one as we can.

The Chairperson (Mr O'Toole): — because that would obviously be very difficult.

Have any entities come out strongly against the Bill? For example, when it comes to the duty of candour specifically in relation to health, several of the professional bodies are not keen on it. Where are the public-sector trade unions more broadly on that here?

Mr Hughes: We have not had any very strong responses against it. There is a recognition of the value of what the Bill tries to achieve and of the fact that, to all intents and purposes, it creates a statutory framework around what is already expected. It does not create much that is new except insofar as it will now be in statute.

The Chairperson (Mr O'Toole): OK. I have a final question before I bring in other members. Part 2 of schedule 2 talks about what things mean, which schedules often do. A "public authority" means:

Is that regularly how it is done, or is there a reason why the schedule does not refer to "Northern Ireland Ministers" in the same way as it refers to Scottish Ministers and Welsh Ministers?

Mr Hughes: There is a definition elsewhere in the Bill of "a Northern Ireland devolved authority" as the First Minister and deputy First Minister acting jointly, a Minister or a Department; so that just summarises it.

The Chairperson (Mr O'Toole): Fair enough. That is helpful.

Ms Forsythe: Thank you both for being here to take our questions.

Will the new duty of candour apply retrospectively when we deal with historical investigations and inquests?

Mr Hughes: My understanding — I will say that a lot because it is, possibly, colleagues in Whitehall who will be able to give you chapter and verse — is that it will apply from the point at which it is commenced.

Ms Forsythe: Where we would then go on to begin a new historical investigation or a new historical inquest on something in the past, the duty of candour would apply.

Mr Hughes: Yes. It will relate to that inquiry as it starts.

Ms Forsythe: Thank you very much for that clarity.

You touched a bit on the timeline and the amount of detail in this. When do you expect that the other remaining elements of the Bill and the LCM will be discussed by the Executive?

Mr Hughes: We intend that advice should be taken to the Executive by the end of the month.

Ms Forsythe: Thank you very much.

Mr Carroll: I will follow on from the Deputy Chair's question. If the Executive approve, we are probably looking at early next year for an LCM discussion in the Assembly.

Mr Hughes: Yes, I think that that is right about the timing, because the Assembly rises for recess in mid December.

Mr Carroll: No problem.

I think that this has been touched on already. I and other MLAs have been involved with different groups that have raised concerns about duty of candour in a general sense. There is a long list of them that includes former neurology patients. I know that there is a bit of nuance in that, as the Chair said, some unions have more of a specific demand around what type of duty of candour is in place and some patient groups may want a different kind or something that is a bit more robust. I am concerned that the LCM might meet their needs but it might not. With respect, David, I think that you said that it is up to individual Departments. Many patients and former patients feel let down by those Departments. I think that the Department of Finance needs to be a bit stronger and issue a directive to Departments to say that those groups need to be included in any consultation. That is a bit long-winded, but it is an important point that those people feel that the Bill is vital to them. People in England, including the Hillsborough victims, feel that, and it is known as the Hillsborough law after them, and rightly so. I do not know whether the victims' groups and former patients here who have been let down by Departments feel that the Bill is their Bill as well, which it sort of is. That is a bit of a long-winded way of asking what the consultation process is. Obviously, it is an LCM, but is there a timeline for consulting with people who could effectively avail themselves of the legislation?

Mr Hughes: The process of consultation will be the consultation that individual Departments are having with their sectors. I am aware that the Department of Health already has an agenda around an organisational duty of candour. It has its own programme of work heading in that direction, looking to ensure that, in the health sector here, the same organisational duty will exist as already exists in England and Wales and in Scotland and which does not currently exist here. The Bill has been developed and drafted in the context in which that organisational duty already exists in Great Britain; therefore, it kind of leaves those issues to be pursued by the Department of Health according to its own agenda that has already been committed to.

On consultation, because we have been very limited in the time that is available, the most effective way, we have felt, has been to ensure that Departments are going to their employing sectors. That then should inform the discussion at the Executive, because every Minister will be around the table knowing what the position from the perspective of their sector and their area of responsibility will be. That is the way that we are able to take it forward in the short timescales available.

Mr Carroll: I appreciate that, but I strongly suggest that the views of the groups that have called for a duty of candour and some of the groups that the Chair mentioned should be sought. That would probably save the Department a few issues down the line. I emphasise that that should be the approach that is taken. They should be sought out specifically on the Bill and their issues around it.

The Chairperson (Mr O'Toole): I just want to double-check something. If Departments are going out now, is that not a wee bit of a chicken-and-egg situation? Policy teams will know the difference between a legislative consent motion and Stormont-initiated legislation, but is it being made clear to people that, even though they can give their views on the totality of the legislation, that does not mean that it can be changed? Even if, theoretically or hypothetically, the Executive decided not to support the application of the legislation to Northern Ireland, the UK Government would, in all likelihood, proceed with it anyway. Indeed, if those groups advocated specific amendments or suggested changes, there would be a limited opportunity to get them in. Are you managing expectations in that way?

Mr Hughes: The framing of the consultation between Departments and employing sectors has been very clear. It should be about looking at the Bill in its entirety and flagging up any issues or risks that people feel Ministers ought to be aware of when taking the decision on whether it should apply here.

The Chairperson (Mr O'Toole): That is helpful.

Mr Kingston: Thank you for your attendance today. I welcome the general approach of trying to ensure that Northern Ireland is included in the Bill. Quite often, we have delay, and we then have to play catch-up. I hope that that inclusion can be achieved so that there is the same protection for and requirements of people here.

I have two questions. Clause 5 is the:

It states:

I am wondering what the outworking of that will be for ordinary workers. I notice that "inquiry" and "investigation" are spelt with a lower case "i". I am not sure whether you are in a position to comment on this, but my concern is that, if there were some wide-ranging inquiry on a health or a safety matter, people might think, "Well, I don't think that applies to me, but I wonder whether I should somehow come forward", because they do not want to find themselves accused of the offence of failing.

Mr Hughes: It is very important that they have positive support and encouragement to show candour in an official capacity. That is about the positive responsibility to support and encourage good practice generally. The offence will relate to an intentional act or, if it is not intentional, a reckless act that has the intention of impeding. It is very definitely about doing the wrong thing as opposed to failing to do the right thing. That is certainly my understanding. Where it refers to inquiries and investigations, albeit both of those have a small "i", that applies to specific inquiries and investigations. It is not for every single time that someone asks a series of questions to find out what happened. It is very definitely a category.

Mr Kingston: You think, therefore, that the intention is to have a bar that is sufficiently high such that somebody will not think that they have to demonstrate candour just because they had some dealings with a matter in the course of their work duties; it applies only if they are in the category of deliberately impeding an investigation.

Mr Hughes: Yes. It is also worth remembering that those duties apply to authorities and officials. Where a public authority can contribute to an inquiry, there is a responsibility on the person who leads that authority to manage the interface. That is certainly my understanding. It is not a free-for-all in which tens of thousands of people working in a sector all fire in; rather, where a body, organisation or institution can clearly contribute, that interface has to be managed.

Mr Kingston: You referred briefly to an individual duty of candour. Did you say that some other process was coming forward on that?

Mr Hughes: I am not over all the detail, but work is being done towards having an organisational duty of candour for the health sector that would be reflective of the position in Great Britain.

Mr Kingston: Is work being done on that locally?

Mr Hughes: The Department of Health is the lead on that.

Mr Kingston: Right. Thank you.

The Chairperson (Mr O'Toole): No one else at this stage has indicated that they wish to come in. I thank you, David and Jonathan, for coming to give us evidence. Am I right in saying that, at the end of this month, you anticipate the Finance Minister putting a recommendation to the Executive? Just remind me of the deadline that you have given to Departments. Presumably, it is before then; it must be in the next couple of weeks.

Mr Hughes: It is quite shortly, yes.

The Chairperson (Mr O'Toole): The expectation is that, at that point, the Finance Minister will make a recommendation. I am not presupposing one way or the other, although he has indicated broad support for the Bill. On behalf of my party — others have indicated this — I would support the Bill, but, basically, the four options are to support the Bill's being applied as is to Northern Ireland; to support its being applied with specific requests, although there is no guarantee that those will be acted upon through changes or amendments; to say, "We like it, but we are going to take us out and do our own whole Bill", and see whether they agree to that; or to take us out altogether, which is unlikely and, in my view, undesirable.

Mr Hughes: It is worth bearing in mind that the communication with the Bill team in Whitehall has been very good, so managing the amendments that need to be made at Committee Stage, the timing of those and the timing of an Executive paper should then reflect what is in the Bill and what will be in it as a consequence of the Minister of Finance's position that it should extend to here.

The Chairperson (Mr O'Toole): OK, that is really helpful. Please keep us abreast in as timely a way as possible. We appreciate both of you coming to give us evidence today.