Official Report 482KB pdf
09:31
The next item on our agenda is an evidence session with the Deputy First Minister and Cabinet Secretary for Finance and Local Government and supporting officials on LCM-S7-10—the second supplementary legislative consent memorandum relating to the United Kingdom Public Office (Accountability) Bill—which was lodged on 28 July 2026.
The purpose of the bill is to create a statutory duty of candour and assistance for public authorities and officials involved in inquiries, inquests and similar investigations. It would also create new criminal offences and include provisions on ethical standards and parity of representation.
I welcome to the meeting the Deputy First Minister and Cabinet Secretary for Finance and Local Government. She is supported by the following Scottish Government officials from the LCM support and co-ordination unit: Jenny Brough from the safer communities directorate, Francesca Morton from the legal services directorate and Marion McCormack from the justice directorate.
Before we move to questions from the committee, I invite the cabinet secretary to make an opening statement.
Good morning. Thank you for inviting me to support your scrutiny of the legislative consent for the Public Office (Accountability) Bill.
As you know, the bill encompasses the UK Government’s commitment to rebuilding public trust through ensuring that public officials perform their functions with candour and transparency at all times. The Scottish ministers are supportive of the principles of the bill. My predecessor Kate Forbes met the Hillsborough Law Now campaign earlier this year in relation to the legislation. I pay tribute to the campaigners’ enduring determination to secure changes in the aftermath of the Hillsborough disaster.
The Scottish Government has worked with the UK Government in support of Scotland’s interests relating to the legislation and reached an agreement on aspects of the bill that are within devolved competence.
The duty of candour and assistance will impose a duty on public authorities and public officials to act with candour, transparency and frankness in their dealings with inquiries and investigations, which includes proactive notification and the provision of information and assistance. That will aid in providing inquiries and investigations with factual and timely information as a standard obligation.
The bill also requires public authorities to promote, and take steps to maintain, high standards of ethical behaviour within their organisations. That will include the requirement to adopt and make publicly available a code of ethical conduct that sets out the standards of behaviour that will be expected of staff. The offence of misleading the public will seek to capture public authorities and public officials that intentionally mislead the public or are reckless as to whether their act will do so.
The bill also creates two statutory offences of misconduct in public office. The offences are informed by recommendations made by the Law Commission of England and Wales. They will replace the current common-law offence in England and Wales. Scotland does not have an existing offence of misconduct in public office, although a close comparator is the common-law offence of wilful neglect of duty by a public official. The Scottish ministers consider that there are strong benefits to extending those statutory offences to Scotland.
The bill will also amend the Legal Aid (Scotland) Act 1986, enabling the Scottish ministers to make regulations that modify that act in respect of the availability of non-means-tested legal aid to persons participating in fatal accident inquiries where a public authority is a participant. That will mirror the legal aid provisions for England and Wales and ensure that there is no disparity across the UK. That complements the commitment to Parliament made by the former Cabinet Secretary for Justice and Home Affairs in early 2025 to introduce legislation that would provide non-means-tested legal aid for families participating in death-in-custody FAIs.
There has been, and continues to be, ongoing engagement with the UK, Welsh and Northern Irish Governments on a four-nations approach to the bill. The agreement that we have reached with the UK Government on amendments to the bill to ensure that the various provisions can operate effectively within the Scottish context has enabled us to recommend that the Parliament should now consent to the relevant provisions in the bill. In respect of further amendments that are relevant to devolved Scottish provisions, the Government is in close contact with the UK Government and will consider the need for any future LCMs as those amendments progress.
As I know the committee appreciates, the bill covers a broad range of portfolio matters. If questions touch on the portfolio lead responsibilities of my ministerial colleagues, I will ensure that the committee receives a follow-up response in writing with any additional information that would be of assistance in your scrutiny.
My officials and I are happy to take questions.
Thank you very much, cabinet secretary. You will be aware that the Delegated Powers and Law Reform Committee published a report on the LCM on 30 September. It noted that discussions between the Scottish Government and the UK Government continue on how the secretary of state’s guidance-making power under clause 11, on guidance, will operate in devolved areas and how the Scottish ministers’ consent will be obtained. Will you update the committee on those discussions?
I have written to the DPLR Committee, and it is fair to say that, as I set out in my introductory remarks, we are in close contact with the UK Government on those matters. It remains our principled position that the Scottish ministers should be responsible for Scottish and devolved matters. However, given that we are taking a four-nations approach, we are engaged with the UK Government on a range of different matters. I will be more than happy to write to the committee when it is clear how the secretary of state’s guidance-making power is proposed to operate within a devolved context. However, we are clear that Scottish ministers’ consent would be fundamental to the guidance.
There was a separate matter on the regulation-making powers in clause 16. That clause defines who holds public office for the purposes of the two new statutory offences of misconduct in public office. Both the secretary of state and the Scottish ministers can take forward such regulations but, where the secretary of state takes forward such provisions, the bill makes it clear that it is subject to the Scottish ministers’ consent.
That safeguard protects the Scottish ministers’ role in relation to clause 16 but, on both those matters, we are still in dialogue with the UK Government, so I would be more than happy to share further detail with the committee as and when it is developed.
My officials might want to say more on the specific clauses.
At official level, we are in regular discussion with our UK Government counterparts on matters such as the guidance, so we can prepare further updates to provide to the committee.
The availability of concurrent powers can ensure that, where there is agreement between the Administrations about UK-wide changes, the secretary of state can amend the list in a single, consistent update rather than four separate instruments being necessitated. That expediency could be a good reason behind the concurrent powers, and it will always be subject to the Scottish ministers’ agreement.
Just to close off that point, the DPLR Committee’s concern was about the role of the Scottish ministers in the matter. I was content that the Scottish ministers’ consent would be sought in relation to the provisions in clause 16. We will write to the committee with further detail on that, but the DPLR Committee has been keen to seek further detail on that principled approach. I want to be as candid as I am able to be at this time. However, given that we are still in dialogue with the UK Government on a range of those matters, I will be more than happy to facilitate writing to the committee when we have clarified those points further with the UK Government.
That would be very helpful. I was going to request that you do that after your answer.
I have a follow-up question to that, cabinet secretary, although I appreciate that you might not have the information in question to hand. I will also just put on record my entry in the register of members’ interests as a sitting councillor on West Lothian Council.
The DPLR Committee also highlighted concerns about powers that are exercisable by UK ministers to amend the list of office-holders who would be subject to the new misconduct in office offences. What safeguards has the Scottish Government secured, and what safeguards is it looking for and working with the UK Government on? What recourse would we have if consent to this were not granted between Governments?
As I have outlined to the convener, a lot of these issues relate to our on-going dialogue with the UK Government. However, I am content thus far that matters relating to clause 16 will be subject to the consent of the Scottish ministers. Building on that, I think it important to give the Parliament assurance that our powers in Scotland will not be overridden in any way.
It is worth while recounting the fact that Andy Burnham has made it clear that his approach to devolution will not seek to override this Parliament’s powers. That is a change from his predecessors’ view, and it is welcome. That in-built mechanism for protecting the Scottish ministers in relation to regulation-making powers and our consent gives us a degree of assurance, but, as I have said to the convener, those matters need to be discussed further with the UK Government.
I think that Francesca Morton wants to come in on the specifics of the office-holder point.
It was not specifically on the office-holder point, but it might be important to make it clear that the consent provision is in the bill. Therefore, it is set out in statute that, where UK ministers make amendments to the list of office-holders in relation to Scottish devolved matters, that will be subject to the consent of the Scottish ministers. It binds future Governments, too.
I have a couple of questions. The Scottish Government originally recommended that the Parliament not agree to the legislative consent motion. After some work, you have come back and said that you do recommend that it be agreed to. What precisely has changed between the original position and now?
I will be candid and say that some of this predates my time in office. I do not know whether Jenny Brough wants to come in on that.
Certainly, and I will also let Francesca Morton pick up on some points of detail.
There have been two previous legislative consent memorandums—an initial memorandum and then a supplementary memorandum earlier this year—and there has been an element of evolution in the provisions as they relate to Scotland. At the time of the first LCM, we required to see some amendment to provisions to ensure that they would operate properly—that is, effectively and as intended—in the Scottish context. At the time of the second LCM, earlier this year, the Scottish election was forthcoming, and then the bill at Westminster was delayed, primarily due to the ongoing concerns of campaigners such as Hillsborough Law Now and others in relation to coverage of the security services in the security and intelligence provisions. The bill had to be brought back to the Commons as a carry-over bill.
As I said, that happened earlier this year, before the election, and the timing all ran together. I do realise that that is a very inelegant way of explaining it. I will let Francesca Morton add to it, but that is the summary.
That sums it up nicely, but the main point is that the Government has always been supportive of the principles behind the bill. There were points of technical detail that we wanted to pick up in relation to the first legislative consent memorandum. They included the definitions of public authorities—the definition of the term “NHS body”, for instance—and how the duty of candour and assistance applied to local authorities in Scotland, given that the arrangements are slightly different from those in England and Wales.
Also, as Jenny Brough has said, there were, at the time of the first supplementary legislative consent memorandum, issues of timing and uncertainty with the UK bill that stopped its progress to the report stage.
Jenny Brough mentioned in passing the security and intelligence provisions, which, according to the memorandum, you are still considering. You say that you have been engaging with Police Scotland on the matter, because you are not quite sure how they
“will work in practice in”
Scotland. Can you give us a bit more detail on that? What issues are you are seeking to resolve, and how are things progressing in that respect?
Officials will correct me if I am wrong on this. As I understand it, there are issues with the intersection between the security services and the role of Police Scotland, but the bill will apply to Police Scotland. It will place responsibility on the head of a relevant public authority for ensuring compliance with obligations under the duty of candour and assistance. Police Scotland is operationally responsible for counter-terrorism policing, and it is independent of the Metropolitan Police. As I understand it, some elements of the provision are under discussion in relation to how they would interact across the UK, because of our differing approach to policing.
Officials are nodding at me, so it seems that I have said the correct thing.
09:45
Yes, absolutely. There is no issue in principle with clause 6, which includes the security and intelligence provisions and the safeguards that are in play in that area. It is just about how they interact and work in the Scottish context, and making sure that they work as intended. Those discussions are ongoing.
Witnesses have broadly welcomed the principles and, as it has been amended, the detail of the bill. It obviously refers and relates to the duty of candour in the context of inquiries. Witnesses expressed the—not unreasonable—view that it is tricky to legislate for the cultural shift that, it is hoped, the bill will result in. This might fall to one of your ministerial colleagues, Deputy First Minister, but I would be interested to know what further work the Government is considering to support the culture shift, not just in the context of inquiries but more broadly in relation to the public sector and the expectation of candour now being the modus operandi.
I followed some of the evidence that the committee took last week from John Sturrock, and an interesting point was raised, which might have been from Mr Marra or Mr Kerr. It was about whether legislative change can lead to cultural change. In itself, I do not think that it can. It reminded me of debates that we had over the Education (Scotland) Bill in the previous parliamentary session, because legislating to replace an exam board does not in itself change culture; it is about how the legislation is interpreted and how it is enacted by public bodies.
Some provisions of the Public Office (Accountability) Bill relate to training, as I understand it. The Hillsborough Law Now campaign, which I mentioned, has proposed a training programme for public officials. Kate Forbes was involved in that work in the previous parliamentary session, and we would be supportive of that coming forward to help to inform wider cultural change.
My other observation on cultural change is that the chronology of the introduction of the bill is quite interesting, in that it interacts with public service reform, to some extent. If we want to drive a public service reform agenda, there is a need for cultural change. Some of these principles will flow into the wider work that is being led by Mr McKee, but it will take time, because, ultimately, it is about changing behaviours and improving the culture within our public services. Through public service reform and the training that I alluded to in relation to the work of the Hillsborough Law Now campaign, there are opportunities to drive some of that work forward.
That is helpful, and I am sure that there will be interaction with the debate on public service reform. The example that I used with Mr Sturrock and other witnesses was that of the Freedom of Information (Scotland) Act 2002, which, at the time, was said to be a mechanism to ensure that public bodies did not simply respond to FOI requests but proactively put information out in the public domain in a timely fashion. We would all recognise that the volume of FOI requests and the number of successful appeals to the Scottish Information Commissioner suggest that that has not necessarily played out as we might have wished. Could the bill’s provisions be a strand of public service reform that will ensure that we see the cultural shift that John Sturrock talked about?
They absolutely should be. The FOI legislation is a great example. I do not know how many FOIs the Scottish Government is currently dealing with, but it is a huge number, and a huge amount of officials’ time is devoted to responding to those requests. One of the points that was made last week was about public inquiries not becoming an industry, perhaps in a similar way.
I also heard John Sturrock’s evidence about the move from defensiveness and denial to candour. That will not happen overnight as a result of the legislation; it will take time. However, if we are able to deliver on the proactive duty to share information and to come forward and share details, it will help our approach to public inquiries. John Sturrock made the point that, when people are engaged in public inquiries, they are looking for an acceptance of responsibility. However, that discussion can sometimes take far too long and cost far too much public money. The Finance and Public Administration Committee in session 6 wrote a significant report on that, which I am sure we will come on to talk about.
There are opportunities here for people who have been victims to get access to justice far more timeously than they otherwise might have. The behaviour change that you talked about will take time to develop, and the automatic defensiveness and protectionism that exist will take time to break down. The legislation will be part of that, but we will need to work on the wider training. You are right to mention the public service reform agenda, which allows us a unique opportunity to drive forward the behaviour change that we need to see.
I have a small question about something that was touched on in the opening remarks. Is it correct that the changes to legal aid provision are solely for fatal accident inquiries? Is it just to provide greater access to legal support for family members of the deceased, if they have to participate?
The changes to our legal aid position build on changes that, as I think I mentioned in my introductory remarks, were confirmed by the former Cabinet Secretary for Justice and Home Affairs in the previous parliamentary session. Those related to deaths in custody, fatal accident inquiries and families having access to non-means-tested legal aid. The bill goes further than that, because it commits us to making legal aid free and non-means tested for families who are involved in FAIs where a public authority is a participant. That takes us a step further than the commitment in the previous parliamentary session. Marion McCormack might want to say more on that specific point.
On going the next step on fatal accident inquiries, we want to do that in tune with responding to Sheriff Principal Abercrombie’s review, to ensure that we get the landscape right. As the committee knows, we have a large bill on legal aid coming through. We want to ensure that we do it once and that we do it right, so that we get the legal aid landscape that fits for Scotland. The landscape will be slightly different in Scotland, because we have fatal accident inquiries; in England and Wales, they have the inquest structure, and Northern Ireland has a slightly different structure. Instead of having a one-size-fits-all approach, we want to make sure that it is right for Scotland.
If I put a finance hat on—rather than a public administration hat—is it correct that there are no direct financial consequences of the LCM and that the only indirect financial consequences would relate to the cost of access to legal aid in those circumstances?
Yes. The direct consequences for legal aid at the moment would be the same as they are for the support provision that we have in place for deaths-in-custody FAIs. However, taking this further step would have financial implications. We would be happy to come back to the committee once we have further information.
That concludes the committee’s questions on the LCM. The committee will take its decision on steps in relation to the LCM later in the meeting.
09:53
Meeting suspended.
10:33
On resuming—