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Misconduct in public office law is ‘flawed’ and must be replaced, says former attorney general

Misconduct in public office law is ‘flawed’ and must be replaced, says former attorney general

Law Commission

3 min read Partner content

Misconduct in public office is a common law offence, but the existing rules have come under fire from the legal profession, prompting calls for their revision. 

Speaking at the Law Commission’s Misconduct in Public Office Symposium at King’s College London this week, former attorney general Dominic Grieve QC MP added his support for a reworking of the law.

He told the audience of over 100 practitioners and experts that the current Misconduct in Public Office offence was “plainly flawed, it needs replacing, and we can have a very interesting debate about how it should be replaced.”

That debate is being led by the Law Commission, which has just launched a consultation aimed at exploring how the law is being used and discovering the problems caused in practice by its lack of clarity.

Under the existing rules: “a public officer, acting as such, wilfully neglects to perform his duty and/or wilfully misconducts himself to such a degree as to amount to an abuse of the public’s trust in the office holder without reasonable excuse or justification”.

But according to the Commission, this is unclear and ambiguous.

How this could be resolved was the issue being discussed on Wednesday, by Mr Grieve as well as other leading public figures, including Lord Bew, the Chair of the Committee on Standards in public life. 

The crossbench peer described the difficulties of applying the concept of professional misconduct to the activities of public life.       

He said that a key challenge for the Committee was how to “negotiate space between those who are breaking the law and immoral behaviour in general.” 

Leading barrister Jamas Hodivala added that defining who was in public life, and therefore constrained by the misconduct law, was becoming increasingly challenging.  

“The private sector is now assuming an increasing role in society, the boundaries and what is truly the public sector and what may be deemed the private sector are blurring.

“So there is great deal of uncertainty over the meaning of what is a public officer, which goes to whether any offence is actually committed.”

Adding his take on the subject, Cambridge University Professor ATH Smith, suggested that the current format was unworkable.   

He said: “I don’t believe that the current law should or could be kept in its common law present state. The common law has proved to be a remarkable instrument over the centuries but its use in the modern context is, to say the least, problematic.”

As the panel set out its vision for future changes, Mr Hodivala called for a “fair, modern, simple law.”

The sentiment was echoed by Professor Smith, who urged the Commission to “be bold and do away with the common law completely, replace it by a statute, the simpler the better.”

Concluding with a note of caution, Lord Bew reflected: “No system will be perfect, every system will have weaknesses and risks so we have to strive for the one that has the best web of accountability.”  

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