Official Report: Minutes of Evidence

The Chairperson (Mr O'Toole): We welcome David Hughes, who is here for this item and the next one. David is director of the corporate services division. He will provide an opening statement, and then, members, please feel free to ask questions.

Mr David Hughes (Department of Finance): Thank you very much. I am grateful for the opportunity to brief the Committee in advance of the debate on the legislative consent memorandum (LCM) whenever that is scheduled. I appreciate that it has been some months since the Department briefed the Committee on the Bill. I will, if you are happy for me to do so, recap the purpose of the Bill, how it is intended to apply here and its current position in the legislative process. I appreciate that the main value of my attendance may well be in answering questions, so I will keep it brief.

The purpose of the Bill is to ensure that public authorities and officials perform their functions in the public interest and with candour, transparency and frankness at all times. The Executive have agreed that Parts 1, 2, 3 and 5 should extend here, reflecting agreement that public-sector organisations and officials here should be held to the same high standard of conduct as their counterparts in Britain.

Part 1 sets out the overall intent of the legislation. Part 2 has three main effects. It creates a legal duty of candour and assistance on public authorities and officials in their dealings with inquiries, inquests and other investigations. It establishes a duty on public authorities to promote and maintain ethical conduct and requires them to have a code of ethics that includes the duty of candour. It creates a new offence of misleading the public. Part 3 replaces the common-law criminal offence of misconduct in public office with two statutory offences to the same effect. That follows the recommendations of the Law Commission in England and Wales and has the same effect in respect of our common law. Part 5 of the Bill makes necessary provision for Crown application, consequential repeal, interpretation, commencement, extent and so on.

The UK Government have not sought the extension of Part 4 here, and the Executive have agreed not to seek such an extension.

The Bill was introduced in Parliament on 16 September last year and had its Commons Second Reading and Committee Stage in November. The Bill did not extend all the relevant provisions to the devolved jurisdictions, and Ministers at Westminster indicated that the provisions creating the offence of misleading the public and reforming the offence of misconduct in public office would be effected here by amendment of the Bill at Report Stage.

Following Committee Stage in the House of Commons, there was extended discussion between the UK Government and the Hillsborough Law Now campaign group and others about how the provisions would apply to security and intelligence officers. Although the provisions were originally drafted to apply to the security and intelligence services as organisations, there was concern that they did not apply to individuals in the same way as they did to other public officials. Following the satisfactory conclusion of those discussions and the tabling of new amendments, the Bill completed its Commons Report Stage and Third Reading in July, which included amendments completing the extension of provisions here.

The Bill had its First Reading in the Lords before the summer recess. The Second Reading debate took place on 1 September. We anticipate its remaining stages in the Lords before Christmas.

Officials in the Department of Finance have worked with counterparts in Whitehall and alongside Scottish and Welsh colleagues in developing the aspects of the legislation that are intended for UK-wide application. The Department of Finance also set up a cross-departmental working group to look at the Bill and any emerging questions here. Members of that group engaged with the wider public sector, particularly public-sector employers, and the group examined the principles behind extending the provisions here and the relevance of the reforms as part of a UK-wide response to the infected blood inquiry. It also addressed resource implications and sought assurances about access to materials being produced by the UK Government to support implementation.

The legislative consent memorandum indicating that a motion seeking consent would be tabled was laid following Executive agreement in December. The tabling of that motion has waited for the conclusion of the discussions between the UK Government and the representatives and families of victims about the application of the provisions to security and intelligence officers. We now look to table that motion in advance of the last remaining stage in the Lords, which we anticipate will be before the Christmas recess.

The Chairperson (Mr O'Toole): OK. Thank you very much. I go back to the initial purpose of the Bill, which was introduced in response to the appalling tragedy of Hillsborough. Hillsborough was not just a tragedy but a series of institutional and individual failings by people who held public office before, during and after the appalling events there. For the record — we will debate this when the LCM comes to the Assembly — what, when passed, will it mean in practice when it comes to the obligations on individual public servants and public-service bodies?

Mr Hughes: The principal planks of the Bill are the provisions for the duty of candour and assistance that will apply in the event of an inquiry or an investigation. The Bill lists a number of inquiries and investigations in respect of which that duty of candour will apply from the outset and includes powers to add to that list using secondary legislation. For example, inquiries under the Inquiries Act 2005 are already on the list. The provisions set out the power that an inquiry or investigation will have to expect and require information to be provided and the obligation on officials and organisations to provide input to that inquiry or investigation. In good practice, that would always happen. It is not that the Bill works against ingrained bad habits; rather, it creates a statutory framework to require good practice. The creation of the duty of candour flows into the codes of conduct and codes of behaviour in public authorities. The codes therefore need to be consistent with the duty of candour being placed on those public authorities.

The Chairperson (Mr O'Toole): OK. There was a delay, because legitimate questions were asked about how intelligence and security agencies were treated in the legislation. Are the people who had questions about that, including Members of the Assembly and Executive Ministers such as the Finance Minister, now content that those questions have been addressed?

Mr Hughes: Yes. To be clear, the issue was not whether the duty applied to the organisations — it did — but the way in which it applied to individuals. In our engagements with counterparts in Whitehall, it was made clear to us that there would be no progress until everyone was satisfied and until the point at which, clearly, what was on offer and what then appeared in the amendments met everyone's needs. It is about the way in which the duty applies to individual intelligence officers. That satisfied the need to address that.

The Chairperson (Mr O'Toole): OK. It looks as though no other members currently wish to ask questions, so I will ask a couple more. I want to get some things on the record thoroughly.

What preparation is the Department of Finance making to produce guidance for when the Bill becomes law and operational? I mean guidance for other public-sector bodies and public servants.

Mr Hughes: We are engaging with our counterparts in Whitehall. The Cabinet Office has a team that is looking at how it will be implemented from its perspective, and we are keen to make sure that we align with the messaging and materials that are produced there. Cabinet Office officials have made it clear that they will work with us so that we can lift whatever they produce. We are talking to our Scottish and Welsh counterparts in the same way. In some areas of the public sector, the engagement between that sector here and its counterpart sector in Great Britain will be the most effective way for it to move forward. The Department of Health and the UK's Department of Health and Social Care will be in touch on the matter, and we have made connections between teams in other Departments here and their counterpart Departments in Whitehall so that they are looking at the questions that may arise and how they can support their sectors in ensuring, for example, that their codes of ethics are updated.

The Chairperson (Mr O'Toole): Responsibility for producing the codes of ethics will lie with individual public authorities. Does that apply to every public authority in the UK?

Mr Hughes: A lot of them already had a code of ethics. Those can be refreshed and reviewed. I will be careful here, because the definitions of the organisations are minutely different from each other for different purposes. I am happy to make sure that I get this right. Hang on.

The Chairperson (Mr O'Toole): Yes.

Mr Hughes: There are two versions of what "public authority" means. The duty of candour applies to all bodies that exercise "functions of a public nature", exceptions being the courts, the legislatures and the North/South bodies. The code of ethical conduct is required by a slightly narrower category of bodies that are established by government, except for courts, legislatures and the North/South bodies. That is a slight difference, but, if in doubt, the answer is yes, it almost certainly applies.

The Chairperson (Mr O'Toole): I assume that we will have the debate on the LCM in the next few weeks. When do we anticipate Royal Assent being granted, and when do we anticipate the legislation commencing?

Mr Hughes: We anticipate Royal Assent being granted quite early in the new year. I cannot be certain, but that is our planning assumption. There will then be a margin to allow for implementation. From the last conversation that I was part of on that, I think that that margin is around six months.

The Chairperson (Mr O'Toole): OK. No other member has sought to ask a question, so, we will move on to the next session. David, given that you are presenting to us on the next item, I am sure that, if something strikes members, you will be more than capable of hopping back an item and answering a question about the Public Office (Accountability) Bill.

The Committee Clerk: We had planned next week to bring an addendum to the Committee's already agreed report on the LCM on the Public Office (Accountability) Bill. However, with members' permission, we will delay that until the week after, because next week's agenda has turned out to be heavier than anticipated. Plus, it will mean that we will have our hands on the full Hansard report, which will make it a little bit easier.

The Chairperson (Mr O'Toole): Are members content with that?