This article considers the Public Office (Accountability) Bill [“POA Bill”] and provides a high-level overview, and thoughts on, its impact on public bodies, in relation to the new duty of candour and creation of new offences. After completing Committee Stage in the House of Commons on 4 December, the Bill still awaits a date for Report stage. With previous widespread support, it has been expected to become law in 2026. Until early January (when a Report date had been set and then withdrawn) it was making relatively unimpeded progress through Parliament.
News coverage of police investigations into the past conduct of ex HRH Andrew Mountbatten-Windsor when Special Representative for Trade and Investment, and of former Business Secretary and former US Ambassador (Peter Mandelson), has drawn into sharp focus questions of how effective this legislation might be, if passed. As is now well known, the current investigations relate to suspicion of misconduct in public office.
The main purpose and object of the new legislation is to ensure that public authorities and officials perform their functions in the public interest with candour, transparency, and frankness. The POA Bill will give effect to the Labour Party’s 2024 manifesto commitment to introduce a ‘Hillsborough Law,’ which was heavily influenced by the endeavours of the Hillsborough Law Now campaign.
Early Consideration in the House of Commons
At second reading in the House of Commons, the landmark Bill was strongly welcomed during the debate. The Prime Minister, Sir Keir Starmer promised that the Bill would not be substantially altered as it progressed through Parliament.
Some MPs were disappointed that the constitutional principle of non-retrospectivity for new criminal offences would apply (the Bill’s provisions will not have retrospective effect). In addition, some MPs expressed disappointment that the media would not be in scope of the Bill. The collusion between certain members of the South Yorkshire Police and media outlets, in the aftermath of the Hillsborough disaster in 1989, was raised, with debate on the merits of Leveson 2. Many argue that it is not only state institutions that must change.
New Legal Framework
As the Prime Minister acknowledged, the Bill is designed to provide the legal architecture to ensure transparency as public authorities and officials perform their functions and to prevent state cover ups in the aftermath of public disasters or state-related deaths, as a matter of law. Yet, it is also the culture and accountability of the state that requires substantial change. This acknowledgement resounded in the chamber during the first major debate in the Commons at second reading.
Notably, the Independent Public Advocate (Cindy Butts) advocated that the Public Office (Accountability) Bill, the Victims & Prisoners Act 2024, and the Hillsborough Charter must form a coherent legislative and moral framework. Together, it is hoped that the interaction between these can engender and deepen appropriate cultural change within those institutions and cease institutional defensiveness.
The role of Standing Public Advocate was created by the Victims and Prisoners Act 2024. Appointed by the Secretary of State for Justice, they provide support and guidance to victims of major incidents that occur in England or Wales. The Parliamentary Under-Secretary of State for Justice (Alex Davies-Jones) has confirmed that a statutory review of the independent public advocate’s role is underway. It will report to Parliament in due course. It is widely recognised that the role will need revision and, most probably, greater statutory powers.
Duty of Candour and Offence of Misleading the Public
The creation of the new legal duty of candour and assistance, on public authorities and officials, requires these to act with candour; ‘promptly and proactively; with full disclosure of evidence – and without favour to their own position’. In cases of non-compliance, criminal sanctions may result.
The new criminal offence of misleading the public will underpin the duty. Liability may arise where a public authority or public official acts with the intention of misleading the public (or is reckless as to that possibility) and they know, or ought to know, that their act is seriously improper.
It has been questioned why both Houses of Parliament should not be within scope of the new offence of misleading the public. However, a Minister of the Crown may be potentially liable for Ministerial statements, and subject to the Act’s provisions, if released through a government department and not Parliament.
Additionally, once in force, every public authority will be legally required to adopt a Code of ethical conduct based on the Nolan principles of public service – honesty, integrity, accountability, selflessness, objectivity, openness, and leadership. It is expected that consequences for non-compliance will be set out in the Code.
Replacement of Common Law Offence of Misconduct in Public Office
Following recommendations in 2020 by the Law Commission, the common law offence of misconduct in public office will be abolished and replaced with two new statutory offences in England and Wales. Unlike the soon to be abolished common law offence, proceedings for either new offence may only be brought by, or with the consent of, the Director of Public Prosecutions. This is designed to ensure that the right cases are prosecuted, and to prevent vexatious private prosecutions.
The first such offence concerns where a person who holds public office uses their office to obtain a benefit (for themselves or another person) or to cause another person to suffer a detriment, and they know, or ought to know by an objective standard, that their act is seriously improper. The second offence is Breach of Duty to Prevent Death or Serious Injury.
Members of Parliament, members of a local authority in England or Wales, and persons working for a local authority in England or Wales, are among the wide-ranging public office holders that may be in scope of potential liability for the new misconduct offences.
As highlighted in the Misconduct in Public Office Law Commission report, several Court of Appeal judgments considered the challenges arising in the application of the current common law offence, including that its terms are ill-defined, and that the offence operated unfairly at times. In the case of R v Cosford [2013] (EWCA Crim 466), Lord Justice Leveson welcomed the upcoming Law Commission review and stated that “it is unsatisfactory that each of the recent decisions in this area has required the court to trawl through the authorities to try to discern a thread which accurately represents the true position and can be translated into modern employment conditions.”
The primary defence of the three appellants in that case was that none held a public office, by virtue of their employer not being the state but a private employer. The manner in which the appellants were employed did not alter the public nature of the duties of those undertaking the work: Lord Leveson said the “responsibilities to the public are identical.” The appellants lost their appeals and were subject to sentences of imprisonment.
While the core Law Commission recommendations have been adopted, the Bill does not adopt all. For example, in evidence, the Law Commissioner for criminal law (Professor Lewis) explained their recommendation was for a subjective fault element in both offences: “…that the defendant had to realise that a reasonable person would regard the act as seriously improper…” The new offence, as drafted, requires that the defendant knows or ought to know. This has the effect of expanding the scope of criminal liability beyond that envisaged by the Commission. However, for both offences, it is a defence for a person to show that they had a reasonable excuse for their act.
Concluding Remarks
The recent, widely reported events in relation to allegations of misconduct in public office may well result in significant changes (by amendment) to the provisions of the POA Bill, once it finally resumes its passage through Parliament (as of 12 February, there were approximately 280 amendments tabled for Report stage). Even if additional government amendments are not forthcoming, there may well be significant, further Opposition amendments tabled for debate, with Parliamentary votes changing the course of the legislation, and ultimately the consequences for those committing offences or breaching new statutory duties.
