If evidence was needed that members of parliament fear a public backlash, here it is, in the form of a new Bill, Exercise of Reasonable Discretion Bill 2008-09, which is due to get a second reading on the 24th April 2009. Below is a summary of what the Bill sets out to achieve;
The Bill aims to ensure that public authorities and public servants would not be subject to any criminal or civil penalty as a result of the exercise of reasonable discretion in the performance of their functions. Its provisions would cover public authorities, public servants and contracts for public services. The term public authority is defined by the Bill and includes the NHS, the police, local and central and devolved Government and non-departmental public bodies. The formal intent of the Bill is to indemnify public servants, central government, local government and other public agencies from legal action if they take decisions in good faith, as a result of the exercise of reasonable discretion, in the public interest.
In other words, MP’s amongst other public servants which include the Police, local officials and even the NHS, will be able to claim that in effect they acted in good faith, or in the words of the Bill, exercised ‘reasonable discretion’. Any lawyer will tell you that such a defence is subjective, therefore it offer enormous scope for any public servant (including, of course, MP’s) seeking to defend their actions.
So, hypothetically, any Minister taking this country to war on dubious grounds could claim that they had exercised ‘reasonable discretion’ by, for example, commissioning a security assessment of the threat to this country. The information they act on does not have to be factually correct, so long as the Ministers can claim that they acted in good faith. The public would have no right of criminal or civil recourse. No longer will public servants be accountable to the public…and this is a democracy?
Reasonable discretion is defined as being either, in the public interest or in the performance of their functions, in other words, it covers everything. The Bill seeks to include cover for all civil servants (and of course Ministers), for any mistakes they have made related to contracts for public services. Therefore, the civil servants responsible for ordering the new NHS database, which was originally budgeted to cost £2.3bn, has now spiralled to £12bn and is expected to result in a total bill of £32bn, will be able to claim that they exercised reasonable discretion.
What about the Department of Work and Pensions where officials wasted £300m on two cancelled IT projects In 5 years the DWP managed to spend £2.14bn on IT projects, both ongoing and cancelled, with over £500m going to consultants alone. Was reasonable discretion exercised? You decide, because it is unlikely the courts could do anything about it.
Would a Police officer be able to argue that he or she exercised reasonable discretion when they shoot an innocent bystander? Or could a Doctor claim that he or she exercised reasonable discretion when they removed the kidneys of a patient because they pick-up the wrong patients notes? Remember, there is no right of criminal OR civil recourse. Will this prevent people from suing the NHS and/or Doctors for criminal negligence?
This legislation is a danger to all of us, given it is a Rogues Charter that seeks to protect all public servants from accountability to the people they are supposed to serve or represent. It is, perhaps, the most draconian and self-serving legislation ever devised by our parliament. Worst of all, it prevents the public from taking any action (civil or criminal) against MP’s or Ministers, because in virtually every instance, other than a direct and proven lie, they will be able to claim they had exercised reasonable discretion. In fact, even in their lied, they could claim that they did so ‘in the public interest’.
I would urge all fellow bloggers with an interest in justice to use their blogs to publicise this outrageous attempt provide public servants, especially MP’s with a ‘get out of jail free’ card. If this legislation gets through, as it undoubtedly will, then no public servant can truly be held accountable to the public, because a ‘good faith’ defence will always be available!
