The focus on yesterday’s introduction of the proposed Hillsborough Law has largely been about ensuring those in public office tell the truth and are transparent. But yesterday’s Bill – with the actual title of the Public Authorities (Accountability) Bill – also contains some highly welcome and largely untrumpeted provisions to increase accountability for abuse of public office and corruption.
In particular, it includes a complete rewrite of the UK’s outdated misconduct in public office laws and introduces a new requirement on public authorities to have a code of conduct for ethical behaviour.
This is a big win for Spotlight on Corruption which has campaigned over the past year for reform to the archaic common law Misconduct in Public Office offence. In May this year we held a roundtable of experts and policy makers to strengthen proposals for reform which had sat on the shelf within government for four years.
As our research showed, this offence was largely used against low level police and prison officers for sexual offences. In particular, just 2% of publicly identifiable convictions for the offence involved senior public office holders, with 92% of convictions against junior and mid-level staff.
What does the new Bill do
The new Bill scraps the common law offence of misconduct in public office – a key ask of the Law Commission back in 2020 – and creates two new statutory offences:
- Seriously Improper Acts – this offence includes the use of public office to obtain a benefit for themselves or someone else or to cause someone else to suffer detriment
- Breach of duty to prevent death or serious injury.
The first offence is a rewrite of a ‘corruption in public office’ offence recommended by the Law Commission and on first reading it looks like a considerable improvement on earlier proposals by the Commission which contained some real get-out clauses.
The Bill also includes some clarity, as recommended by the Law Commission, about who exactly in public office will be covered by the law. This includes ministers, MPs, civil servants, police, local authorities and others – and according to the impact statement will “in some cases … include private contractors providing public services for the public bodies listed.”
At the same time, the new statutory requirement in the Bill for public bodies to have a code of conduct for ethical behaviour creates a crucial benchmark against which behaviour of those holding public office can be measured. This will help give this new offence more teeth.
What the Bill doesn’t do
We’ll be analysing in more detail with legal experts over the next few weeks whether this bill does close all the gaps. On an initial reading, it does look as if there are a few emerging ones, including:
- A question mark over if and when private contractors for central government departments would be included. The Bill clearly aims to cover private contractors working for local government and the police and fire services, but failing to include central government contractors could turn out to be a real omission.
- The lack of a ‘catch-all’ clause to allow some discretion over who is a public official – which is best practice in other comparable jurisdictions like Canada, Australia, and in line with the UN Convention Against Corruption. The Bill does allow for secondary regulation to update the list, but that can be a clumsy and time-consuming mechanism when loopholes emerge.
- Lack of ‘consent and connivance’ provisions to capture situations where senior public officials may have turned a blind eye to abuse of office. This is odd as these provisions are in place for the ‘duty of candour’ part of the Bill.
- The absence of a clause to capture those who might encourage, directly or indirectly, a public office holder to engage in abuse of their office – so that private actors are also covered. Arguably the UK would be more closely aligned with provisions in the UN Convention Against Corruption if it also included this.
Conclusion
The key test of these new provisions is whether public officials, including politicians both in central and local governments, will face investigation for using or abusing public office for benefit or harm.
The government has flagged specifically that it does not foresee an increase in prosecutions: “we estimate that the introduction of the new measures will have a negligible impact on prosecutions and convictions.” But as we always say at Spotlight when a new law is introduced, there is no use in having it if it isn’t enforced.
Given that Misconduct in Public Office convictions declined by a whopping 35% over the past decade, while public scandals in both central and local government appeared by many measures to increase, it will be a significant failing of this Bill if there is not an increase in prosecutions, and a change in the kinds of people who are being investigated and ultimately convicted.
Finally, it’s crucial that the new Domestic Corruption Unit announced last December has long-term funding to ensure that this bill can be enforced and that the government now looks to set up a proper reporting line so that the public and whistleblowers know where to take allegations of breaches of this new offence.
