When Andy Burnham, then MP for Leigh, proposed a statutory duty of candour for public authorities back in 2017, he no doubt hoped that progress might now have been made. His draft Public Authority (Accountability) Bill, prompted by his involvement with the Hillsborough families, would have required public authorities to admit responsibility following adverse and mass casualty incidents, potentially even before court proceedings had been intimated.

That Bill was put on hold following the snap General Election in May 2017, but calls for progress have recently been reinvigorated following the introduction of similar duties within the healthcare sector, as well as a number of high-profile incidents, including the Grenfell Tower fire and, more recently, the inquest touching upon the death of Awaab Ishak.

Statutory duty of candour

During a public discussion held in Manchester last month, Mr Burnham supported calls for the playing field to be levelled between bereaved families on the one hand, and well-resourced public authorities on the other during investigations into mass casualty events. It appears that this objective has been borne out of disquiet that, despite the extent of investigations prior to the second Hillsborough inquest, neither the coronial nor criminal justice system had been able to reveal the cover-ups which subsequently came to light.

The ‘Hillsborough Law’ which is proposed would establish a statutory duty of candour, requiring public authorities, public servants and officials to:

• act at all times in the public interest and with transparency, candour and frankness, and to detail the measures taken to further to these objectives in a published Code of Ethics;
• assist court proceedings, official inquiries and investigations where their own acts or omissions are (or may be) relevant; and
• disclose information which may change the scope of any proceedings, inquiry or investigation.

It is proposed that ‘public authority’ be given the wide-ranging and inclusive definition: “any national or local government department… institution or agency engaged in functions of a public nature… [this] includes entities with a private structure but which are majority owned by public funds.”

To ensure compliance with the proposed duties, it is suggested that new offences be created for failure to discharge the duty, punishable by a fine and/ or custodial sentence.

Offences would also be committed by public servants, if they intentionally or recklessly misled the general public, the media or proceedings. In addition to an organisation’s offending, individuals would also be liable if by their acts or omissions they hindered their authority’s compliance with its the duty.

Parity of funding

Hillsborough Law also suggests that bereaved families and ‘core participants’ at inquiries and inquests be entitled to publicly funded legal assistance and representation at the same level, or in proportion to, the resources available to the public authority, to ensure a parity of arms.

What could this achieve?

When introducing the initial draft of what is now the Hillsborough Law back in 2017, Andy Burnham summarised the motivation as “simple”:

“It [is]…to protect other families from going through what the Hillsborough families went through and from a similar miscarriage of justice. It empowers victims to secure disclosure of crucial information and prevent public authorities from lying to them or hiding the truth by making that an imprisonable offence… it creates a level legal playing field at inquests for bereaved families so that finally inquests become what they should always be – a vehicle to get to the truth.”

When can we expect a change?

First introduced in 2017, the Bill’s progress was thwarted by the dissolution of Parliament for the General Election in May of that year.

The Law Commission has consulted generally on the offence of misconduct in public office, providing its final report in December 2020, which concluded that the offence should not be retained in its current form. Specifically the Commission recommended repeal of the offence and its replacement with two separate offences, being:

• An offence of corruption in public office, applicable when a public office holder knowingly uses, or fails to use, the public position for the purpose of achieving a benefit, where that behaviour would be considered seriously improper; and
• An offence of breach of duty in public office, which would apply where a public office holder is subject to and aware of a duty to prevent death or serious injury that arises only by virtue of the functions of the public office, where there is a breach of that duty and in so doing the person is reckless as to the risk of death or serious injury.

The Government’s response to the Commission’s report is awaited, and it does not therefore appear that there is any current appetite within government to progress the proposals.

By contrast, Labour have publicly stated that the Hillsborough Law will form part of its next election manifesto and it will introduce relevant legislation is if is elected.

Public Advocate Bill

Some progress may have been made towards the general aims of ensuring parity between bereaved families and public authorities with the introduction last summer of the Public Advocate Bill, which has received its first reading in the House of Lords. A date for its second reading is awaited.

The current draft of the Bill proposes the establishment of a Public Advocate office, which would have responsibility for reporting to bereaved families regarding the progress of criminal and inquisitorial investigations into casualty events, to set up a panel to review all documentation relating to the event if requested, and publish a report following its review of such documents. Again, the objective is to minimise the potential for cover-ups and permit full analysis of the facts at the earliest opportunity.

Comment

To date there is little clarity as to what exactly is meant by the term, ‘candour,’ and the precise scope of the proposed Hillsborough Law remains unclear. Certainly we would not expect any duty to require criminal suspects to make admissions prior to appearing before the Court: that would fundamentally undermine the criminal justice system.

A similar proposal in Scotland has recently been rejected by the Scottish Government, on the basis that it considers the existing legal framework to be, “robust,” and has dismissed further specific legislation as, “unnecessary.”

Questions will also arise as to the tension between the requirement for candour and the right to silence in the criminal process. Where someone reasonably asserts that right, they are unlikely to be guilty of lacking candour. However, the idea that any assertion of the right of silence will be subject to third party scrutiny is seismic to say the least.

The proposal to extend legal assistance to bereaved families is likely to receive widespread support. However, the very significant cuts to the legal aid budget in recent years and continuing austerity generally begs the question: where will the money come from?

Interestingly, the 2017 Bill proposed a limit on the legal spend of public authorities in responding to inquests and inquiries – the logic being that the requirement for them to ‘come clean’ at the outset will reduce the length of investigations and thereby ensure costs savings for all. Any such limits may however fetter the ability of public authorities to fully and properly articulate their case when responding to investigations.

Also, it is often extremely difficult at the outset of an inquiry or inquest to estimate the overall costs that may be incurred. Were a cap to be introduced in responding to any such proceedings, the basis for this would need to be carefully considered, to ensure that all parties are capable of achieving full and proper advice and representation.

In addition, of the organisations which have to date voluntarily accepted responsibility in the immediate aftermath of adverse incidents, there has been little acknowledgement of their acceptance or explicit reduction in the fine imposed.

For example, Sentencing Guidelines for health and safety offences are stated to be punitive and designed to send a message to shareholders. To this end they can therefore be seen as a ‘stick’ to encourage early admissions and prompt acceptance of responsibility.

However, there does not appear to be any comparable or tangible ‘carrot.’ In the absence of an acknowledged benefit or (financial) incentive for being candid, a potential defendant to further investigation is likely to consider themselves caught between a rock and a hard place.

Conclusion

Despite the suggestions for improvement which have been highlighted by bereaved families over recent years, the enactment of a statutory duty of candour appears low on the Government’s priorities at the current time.

If the proposed Hillsborough Law is to become law then there needs to be careful consideration of the potential, but significant, implications to ensure that there is genuinely fairness to all parties concerned.