Public Office (Accountability) Bill — Written evidence submitted by Spotlight on Corruption (POAB14)
Parliament bill publication: Written evidence. Commons.
Public Office (Accountability) Bill - making the most of the opportunity to
raise
ethical
standards
and
ensure
the
new
misconduct
in
public
office
offence
achieves
its
purpose
Spotlight on Corruption is a UK anti-corruption charity that monitors how the UK enforces its
anti-corruption
laws,
raises
ethical
standards
and
implements
its
international
commitments
on
fighting
corruption.
We have closely monitored over the past few years how standards of conduct in public life are
regulated,
and
the
enforcement
of
existing
misconduct
in
public
office
laws.
We
have
found
that
significant
improvements
are
needed
in
relation
to
both.
The
Public
Office
(Accountability)
Bill
is
a
unique
opportunity
to
ensure
some
of
these
improvements
-
long
recommended
by
experts
-
are
put
into
statute.
In this submission we call for the Public Office (Accountability) Bill to be strengthened by: ● Putting relevant standards regulators on a statutory footing and ensuring parity between
the
ethical
codes
of
public
servants
and
the
Ministerial
code.
● Addressing significant issues with the drafting of the misconduct in public office offence
which
are
likely
to
undermine
the
stated
intentions
of
the
Bill,
by
ensuring
that:
○ private contractors, and private instigators of misconduct are clearly covered, ○ the definition of public office holder is not too narrow, ○ the defence is not so broad as to create serious obstacles to prosecution, and ○ a benefit or detriment does not have to have occurred in order for a prosecution
to
take
place,
in
order
to
match
the
Bribery
Act.
A. Standardising ethical norms and regulation across public service, and
futureproofing
standards
regulation
1.1. The Public Office (Accountability) Bill (POAB) includes new measures to require public
authorities
to
“
adopt
and
publish
a
code
of
ethical
conduct.”
The
code
must
lay
out
expectations
of
conduct,
practical
implementation
and
disciplinary
consequences,
as
well
as
how
whistleblowers
and
the
public
can
report
on
any
breaches.
1.2. The Bill stipulates that guidance for what public authority codes should include may be
issued
by
the
“
appropriate
national
authority
”
and
that
public
authorities
will
need
to
have
regard
to
that
guidance.
1.3. The provisions in the Bill have the potential to raise ethical standards across government
but
notably
do
not
apply
to
elected
officials,
including
ministers.
This
is
a
missed
opportunity
to
ensure
that
those
at
all
levels
of
public
service
abide
by
the
same
standards.
1.4. The Committee on Standards in Public Life (CSPL) found in its 2021 review of the
standards
landscape
that
urgent
reform
was
needed
to
the
ministerial
code,
in
particular
that:
● it should be reconstituted as a specific “ code of conduct of ethical standards for
ministers
”
based
on
the
seven
principles
of
public
life;
and
● there should be an obligation in primary legislation for the Prime Minister to publish the
Ministerial
Code
-
something
that
would
“
grant
the
code
a
more
appropriate
constitutional
status
.”
1
1.5. In addition, the CSPL found that regulation of ministerial ethics lags far behind that of other
public
servants
and
that
it
needed
“
greater
independence
.”
While
other
public
servants
have
statutory
bodies
that
provide
oversight
of
codes
of
conduct,
the
Independent
Advisor
on
Ministerial
Standards
remains
an
advisory
role
to
the
Prime
Minister
that
can
be
abolished
in
a
day,
despite
recent
improvements
to
its
powers.
1.6. CSPL specifically recommended that the Independent Advisor along with the Commissioner
on
Public
Appointments
should
be
put
on
a
statutory
footing
in
primary
legislation.
This
recommendation
has
been
backed
by
constitutional
experts.
2
1.7. The newly established Ethics and Integrity Commission (EIC) created in October 2025 will
play
a
key
role
in
upholding
ethical
standards
across
government.
Its
terms
of
reference
specifically
state
that
it
will
“
advise
public
authorities
on
the
development
of
clear
codes
of
conduct
with
effective
oversight
arrangements,
in
line
with
the
planned
forthcoming
obligations
of
the
Public
Office
(Accountability)
Bill
[sic].
”
3
1.8. Despite this role, the EIC is not envisaged by the POAB to be the appropriate national
authority
that
will
issue
guidance
on
what
codes
of
conduct
should
include.
This
is
due
in
large
part
to
the
fact
that
the
EIC
does
not
have
statutory
footing.
There
is
a
risk
that
this
undermines
the
authority
of
the
EIC
in
setting
ethical
standards.
Its
lack
of
statutory
footing
further
leaves
it
vulnerable
to
speedy
dissolution
by
a
future
government.
Constitutional
experts
have
called
for
the
EIC
to
have
statutory
footing.
4
Detailed recommendations1. Amend the Public Office (Accountability) Bill at section 10 of Part 2 Chapter 2 to state that the “ appropriate national authority ” in England and Wales is the Ethics and Integrity Commission.
4
Public Administration and Constitutional Affairs Committee, Oral Evidence session
,
Lord
Evans
and
Sir
Peter
Riddell,
November
2025.
3
Ethics and Integrity Commission, Terms of Reference
2
Professor Robert Hazell and Sir Peter Riddell, Evidence to the Public Administration and Constitutional
Affairs
Committee
,
November
2025
1
Committee on Standards in Public Life, Upholding Standards in Public Life, November 2021
2. Insert new section 11 in Chapter 2 that establishes The Ethics and Integrity Commission and refers to a new Schedule which lays out a. The statutory basis of the EIC b. That regulations on the constitution, powers and appointment process for the EIC will be laid before Parliament within 12 months of the passing of the Bill, following consultation. 3. Insert a new section 12 that lays out a. the obligation on the Prime Minister to publish a Ministerial Code based on the seven principles of public life in consultation with the Independent Advisor on Ministerial Standards, and in line with national guidance b. The statutory basis of the Independent Advisor on Ministerial Standards. B. Addressing drafting shortcomings in the Bill with regard to the Misconduct in Public
Office
offence
The new Public Office (Accountability) Bill is a very welcome step towards implementing
recommendations
from
the
Law
Commission
to
put
the
misconduct
in
public
offence
in
statute.
The
Law
Commission
found
widespread
criticism
of
the
common
law
offence
that
has
been
used
to
date
to
prosecute
wrongdoing
in
the
public
sector,
and
recommended
specific
statutory
provisions
to
update
the
offence.
5
However, careful review with legal experts and comparison with the Law Commission
recommendations
has
revealed
some
potential
drafting
flaws
with
the
current
Bill
which
risk
undermining
the
purpose
of
the
new
provisions.
These
include:
1. Lack of clear coverage of private contractors 1.1. The Law Commission specifically recommended that contractors who exercise functions or
perform
work
for
the
government
should
be
covered
by
the
offence.
With
private
goods
and
services
representing
30%
(or
£326
billion)
of
government
spending,
6
it
is
critical
that
private
contractors
are
covered
to
ensure
meaningful
accountability
where
misconduct
occurs
while
performing
public
services.
1.2. The Law Commission recommended that to achieve this the list of public office holders
should
clearly
include
“
contractors
who
exercise
functions
or
perform
work
for
the
government
.”
This
language
is
not
included
in
Schedule
4
of
the
Bill.
This
is
despite
the
government’s
impact
assessment
specifically
stating
that
the
definition
of
public
office
holders
includes
“
private
contractors
providing
public
services
for
any
of
the
public
bodies
listed.
”
7
The
current
formulation
7
Government Impact Assessment
of
the
Public
Office
(Accountability)
Bill,
September
2025
6
House of Commons Library, Outsourcing by Government Departments
,
January
2025
5
Law Commission, Misconduct in Public Office, December 2020
of section 21 risks introducing too narrow a formula and lacks legal clarity as to when private
contractors
and
subcontractors
are
included.
1.3. In addition, the language in the Bill is directed clearly at individuals and there is no explicit
corporate
liability
provision
within
it.
If
private
contractors
are
to
be
clearly
caught
by
the
Bill,
it
should
be
beyond
doubt
that
the
offence
at
section
12
can
be
committed
corporately,
with
accompanying
consent
and
connivance
liability
for
company
officers
as
in
the
Bribery
Act.
2. Too narrow a definition of public official 2.1. The Bill adopts the Law Commission’s recommendation to define who is a public office
holder
to
create
certainty
given
that
current
case
law
lacks
clarity.
However,
the
Law
Commission’s
proposed
approach
to
provide
a
statutory
list
of
officials
risked
putting
the
UK
at
odds
with
the
UN
Convention
Against
Corruption
without
a
‘catch-all’
definition
to
accompany
it.
2.2. The Bill contains a version of a ‘catch-all’ definition at section 21, Schedule 4 of the Bill.
However,
it
is
constructed
in
a
convoluted
manner
which
risks
making
it
narrower
than
existing
case
law.
It
is
not
clear
that
it
would
include
positions
that
have
been
considered
to
be
in
public
office
in
the
past,
for
instance
a
nurse
(employed
as
a
public
or
private
contractor),
working
in
a
prison,
or
any
employee
of
a
private
entity
employed
by
the
state
to
deliver
public
services.
3. The use of “to obtain” in s12(1)(a) may limit prosecutions to where a benefit or
detriment
has
actually
occurred,
at
odds
with
Law
Commission
recommendations
and
the
Bribery
Act.
3.1. Legal experts have highlighted that use of the words ‘to obtain’ in s12(1)(a) as currently
drafted
could
give
rise
to
legal
argument
as
to
whether
a
benefit
must
have
been
obtained
for
the
offence
to
be
committed.
This
would
be
at
odds
with
what
the
Law
Commission
recommended.
The
Law
Commission
recommended
the
phrase
“
for
the
purpose
of
achieving
”
.
which
targets
purpose,
not
result.
The
use
of
the
words
‘to
obtain’
risks
importing
the
concept
that
a
benefit
or
detriment
must
have
resulted.
Using
the
wording
‘intending
to
achieve’
would
make
it
even
clearer.
3.2. Furthermore, under the Bribery Act, a prosecutor must prove that a person has requested,
agreed
to
receive
or
accepted
an
advantage
intending
to
improperly
perform
a
function
or
activity
as
a
result.
8
The
Act
is
clear
that
they
do
not
need
to
prove
that
the
person
has
actually
obtained
the
advantage
or
that
the
function
or
activity
was
actually
improperly
performed.
This
broad
definition
of
bribery,
with
its
focus
on
purpose,
not
outcome,
has
helped
shape
the
Bribery
Act,
which
has
been
praised
internationally
as
well
as
by
Parliament
for
being
an
exceptional
piece
of
legislation.
9
The
failure
to
make
the
misconduct
offence
reflect
similar
principles
may
limit
its
effective
use.
9
House of Lords, The Bribery Act 2010: Post-Legislative Scrutiny
,
March
2019
8
Bribery Act 2010, Section 2 – and also see section 6 which applies to foreign public officials, but for
which
there
is
not
an
equivalent
for
UK
public
officials
4. The “reasonable excuse” defence is too broad and risks undermining the purpose
of
the
Bill
4.1. The Law Commission recommended that there should be a defence for the public office
holder
“
to
prove
that
the
conduct
was,
in
all
the
circumstances,
in
the
public
interest.
”
This
was
the
result
o
f
extensive
consultation
to
ensure
that
whistleblowers
would
also
be
protected
in
the
Bill.This
defence
has
been
considerably
broadened
in
the
Bill
to
“
show
that
they
had
a
reasonable
excuse.
”
4.2. In addition, the Law Commission recommended the burden to prove that the conduct was in
the
public
interest
should
rest
solely
with
the
defence.
The
Bill
has
replaced
this
with
a
partial
reverse
burden.
Under
the
Bill,
the
defendant
can
bring
forward
“
sufficient
evidence
”
of
their
reasonable
excuse
sufficient
“
to
raise
an
issue
with
respect
to
it.
”
The
prosecution
must
then
prove
beyond
reasonable
doubt
that
this
very
broad
and
somewhat
ambiguous
defence
does
not
apply.
4.3. As drafted, the reasonable excuse defence is not an essential element of the offence, and
therefore
in
line
with
case
law
on
reverse
burden
provisions,
10
the
burden
should
shift
to
the
defence
to
prove
a
reasonable
excuse
to
the
civil
standard.
Otherwise
the
current
formulation
of
the
Bill
risks
creating
an
exceptionally
high
burden
for
the
prosecution
and
may
result
in
few
prosecutions.
5. The Bill does not clearly cover private actors who encourage a public officer
holder
to
commit
an
offence.
5.1. Legal experts have identified a gap in UK law that private instigators of those who commit
trading
in
influence
as
required
by
the
UN
Convention
Against
Corruption
are
not
fully
covered.
Under
the
current
common
law,
it
is
unusual
for
those
who
intentionally
encourage
or
assist
in
the
commission
of
a
misconduct
in
public
office
offence
to
be
prosecuted.
11
The
Bill
is
an
opportunity
to
address
this
gap.
Detailed Recommendations: 1. To ensure that private contractors are clearly covered: ● Schedule 4 should clearly state that “ contractors who exercise functions or perform services for the government, and their subcontractors ” are covered by the definition of ‘holders of public office.’
11
Drystone Law, Love Struck Prison Officer and Prisoner Prosecuted for Misconduct
,
March
2025.
The
article
notes
that
this
case
was
unusual
and
notable
due
to
the
prosecution
of
a
prisoner
for
encouraging
misconduct,
due
to
the
extensive
evidence
that
emerged.
10
See Lord Hope, DPP, ex Kebilene (2000) 2 AC 326 HL
● A new provision in section 12 should make specific provision for the commission of the offence by a body corporate and related consent and connivance liability for officers (much like s14 Bribery Act 2010). ● The definition of ‘working for’ in s23(3) Bill should be amended to read “For the purposes of this Act, a person “works for” another (A) if—….“the person works under a contract to do work personally with A”…or “the person otherwise exercises functions or provides services on behalf of A”. 2. To ensure the definition of a public office holder is comprehensive: ● Section 21 should be replaced with the following language: “ A public office holder for the purposes of this offence includes any other person in a position involving a public function in which the public has a significant interest in the discharge of that duty and which the office holder is obliged to exercise in good faith, impartially or as a public trust. ” 3. T o ensure that the Bill aligns with the Bribery Act and does not require a benefit to have been obtained: ● The phrase “ to obtain a benefit ” in the Bill should be replaced with “ intending to achieve a benefit. ” 4. To ensure that the defence is clearer and does not establish an exceptionally high bar to prosecution : ● The original language proposed by the Law Commission should be used, that: “ It is a defence if the public office holder can prove that the conduct was, in all the circumstances, in the public interest. ” 5. To ensure that private instigators of misconduct can be clearly covered: ● A new offence should be introduced into section 12 that addresses this legislative gap with the following language: “(3) It is an offence for a person to encourage, directly or via a third party, a public office holder to commit an offence under section (1)” [This briefing about drafting shortcomings of the misconduct in public office offence was
developed
by
Spotlight
on
Corruption
drawing
on
legal
research
and
input
from
A&OShearman]