Key takeaways
New offence targets public misinformation
Clear statutory rules aim to prevent cover-ups and restore trust.
Misconduct law replaced for greater clarity
The Bill abolishes vague common law and introduces precise standards.
Officials must prepare for compliance changes
Training and ethics oversight will be essential to avoid liability.
The Public Office (Accountability) Bill aims to increase transparency and strengthen the legal accountability of public officials and authorities. To do this, allegations that public servants have concealed, misled, or withheld information will be treated with the utmost seriousness by virtue of a new criminal offence, known as “Misleading the Public”. The draft provisions reflect the commitment that the Government has made to never repeat the “cover ups” seen in inquiries including Hillsborough, Orgreave, Windrush, the infected blood scandal and Grenfell.
Current law
The Bill will abolish the current common law offence of misconduct in public office, which is not currently defined in any statute and carries a maximum penalty of life imprisonment.
This offence has been criticised by many, including the Government, the Court of Appeal and the Law Commission, as not being “sufficiently clear or precise, and this imprecision creates the potential for misuse and injustice”.
The Law Commission has highlighted that the most significant problems with the current law include:
A lack of clarity in the terms and extent of the current offence;
The risk of overuse and misuse of the offence, leading to injustice;
Its use as a “catch all” offence, in place of more targeted statutory offences; and
A concern that it tends to be used primarily against relatively junior officials, rather than more senior decision-makers that members of the public might more readily expect to be held criminally accountable.
It has therefore been recommended that the common law offence should be abolished, with a suitable replacement statutory offence.
Proposed new statutory offence
Under the Bill, a public authority or public official will commit a criminal offence if:
they intentionally or recklessly mislead the public, and
they know (or ought to know) that their act is seriously improper.
“Seriously improper” is proposed to capture dishonesty that was significant or repeated, causing or contributing to harm to one or more other persons, and departing significantly from what is to be expected from a public authority or public official.
If charged with misleading the public, a public official has two possible defences.
A narrow exception saved for members of the intelligence service, and armed forces and
“Reasonable excuse”. This is not a new concept. Reasonableness is often assessed through the instruction of independent experts. There is much case law on this issue - in the clinical negligence sector for example.
The penalty for an offence of misleading the public has been significantly reduced to a maximum imprisonment of two years and, or a fine.
Strengths, risks, and open questions
The new statutory offence is expected to have a positive impact because the clarity it provides will reduce uncertainty about what behaviour is punishable. By outlining that a public official would need to have knowledge of and intention to mislead the public, the Bill creates a criminal offence that is hoped to be far more effective that the currently vague common law.
Despite the potential, there are concerns and ambiguities worth noting, particularly regarding the definition of “seriously improper”. Terms such as “significant” or “repeated dishonesty” are open-ended and may require the courts to interpret the meaning in the future, to avoid legal uncertainty and inconsistent decision making.
If the Bill is enacted into law, public authorities will need to train staff and establish clear internal procedures with ethics oversight to avoid exposure.
Conclusion
If enacted, the new offence of “misleading the public” could help restore public trust and deter wrongdoing by public officials and authorities. Although its effectiveness (as with all new legislation), will depend on the clarity of its definitions and the scope of its application.
The reform is sensible and welcomed. How the Bill will progress through Parliament remains to be determined. Keep an eye out for our upcoming articles on the Bill, there is so much more to discuss.