Calls for a ‘Hillsborough Law’ and increased accountability of public servants have been voiced for many years.  However, despite a number of independent inquiries, investigations, two inquests, litigation and even draft legislation having been prepared almost a decade ago, progress towards a statutory duty has been slow.

When Andy Burnham, then MP for Leigh, proposed a statutory duty of candour for public authorities back in 2017, he no doubt hoped that quick progress might be made. The resulting draft Public Authority (Accountability) Bill was put on hold following the snap General Election in May 2017, and the subsequent Conservative government stepped back from introducing a statutory duty, establishing instead the Hillsborough Charter.

Honouring Labour’s 2024 manifesto to introduce a law which, “places a legal duty of candour on public servants and authorities and provide legal aid for victims of disasters or state related deaths,” the Public Authority (Accountability) Bill is now one step closer to implementation, and is working its way through Parliament and towards Royal Assent. The Bill marks the successful culmination of decades of campaigning by the families of those who died in April 1989, as well as those who witnessed and were injured and affected by events.

What does the draft Bill say?

At its core, the draft Bill seeks to ensure that public authorities, and public officials, at all times perform their functions with candour, transparency and frankness. No further definition is provided within the draft legislation as to what these terms means over and above their common usage understanding, and the draft Bill states that it will require public authorities to promote and take steps to maintain ethical conduct, candour, transparency and frankness within all parts of the organisation. Criminal sanctions are proposed for breaches of this new duty.

‘Public authority’ is given a wide definition within the Bill, and includes government departments, any of the regular or reserve forces, police forces, schools, local authorities, NHS bodies and any organisation whose functions, “are functions of a public nature or include functions of a public nature.” Both Houses of Parliament are however expressly excluded from the definition.

The Bill does not go so far as perhaps hoped by families, nor as far as the draft legislation first prepared in 2017, which had also included within the definition of public authority, “entities with a private structure but which are majority owned by public funds.”

What will the Act do?

A significant concern for the families of those affected by the Hillsborough tragedy has been that there was no legal obligation on the public authorities involved in the various inquiries and investigations to cooperate meaningfully with the process, or to be transparent when preparing to respond. There were also concerns of significant imbalance between the funding available to the families of those who died, compared with the public authorities involved who were perceived to have deeper pockets and more resources at their disposal.

To address these concerns, and in an effort to prevent other families from experiencing the same distress, the Bill as currently drafted proposes the following:

1. Duty of candour and assistance in relation to inquiries and inquests

The Bill mandates that public authorities and public officials must at all times act with candour, transparency and frankness when interacting with inquiries and investigations. This proactive obligation also requires public authorities and officials to notify the person leading an inquiry or investigation where they have grounds to believe that their acts are, or could, be relevant to the inquiry or investigation, or if they otherwise have information likely to be relevant.

Furthermore, such persons must provide whatever information and assistance to the inquiry or investigation as they are directed.

Non-compliance, with the intention of impeding the inquest or investigation, is punishable on conviction by up to a two-year custodial sentence and/ or a fine.

2. Duty to promote ethical conduct

The Bill requires public authorities to promote high standards of ethical behaviour, and will require production of a code of ethics, outlining the standards of behaviour expected from people who work for the authority. The Explanatory Note which accompanies the draft Bill states that public authorities must take steps to ensure that those who work for the authority are aware of the code, the practical ways in which the standards set are to be met, and the consequences of non-compliance.

Acting with candour will vary between public authorities depending upon their function, and any code should explain how those working for a particular authority can demonstrate candour in the context of their own sphere of operations, functions and individual specific roles.

3. Misleading the public

Under Hillsborough Law, public authorities and officials will commit an offence if, in their professional capacity, they act with the intention of misleading the public, or are reckless as to whether their act will do so, and they know, or ought to know, that their act is seriously improper.

On conviction, such behaviour is punishable by a maximum of two-years custody and/ or a fine.

4. Misconduct in public office offences

The existing common law offence of misconduct in public office is currently committed by a public office holder who, while acting in their capacity as public office holder either wilfully neglects to perform their duty or misconducts themselves to such a degree that it amounts to an abuse of the public’s trust in that office.

The Bill proposes the abolition of the above offence, and its replacement with two separate offences relating to ‘seriously improper acts’ and, separately, ‘breach of duty to prevent death or serious injury.’

• Seriously improper conduct: an offence will be committed when a person who holds a public office, uses that office to obtain a benefit (for themselves or another person); or to cause another person to suffer a detriment. They must also know (or ought to know) that their behaviour is seriously improper. ‘Benefit’ is proposed to have a wide definition and will include not only financial gain, but also reputational protection or enhancement, or benefits of a physical or sexual nature.

• Breach of Duty to Prevent Death or Serious Injury: an offence will be committed when a person who holds public office is under a duty to prevent, or to prevent a risk of, another person suffering critical harm; and they intentionally or recklessly breach that duty by causing, or creating a significant risk of causing, another person to suffer critical harm.

It is anticipated that this offence will only apply in practice to those whose role inherently involve a duty to prevent critical harm to others – being predominantly those who work in the emergency services.

Both offences are indictable-only, and are punishable on conviction by significant custodial sentences (up to 10 years/ 14 years respectively).

It will be a defence to both offences to demonstrate that there was a reasonable excuse for the act.

5. Parity at inquiries and inquests

The guidance notes which accompany the draft Bill explain that the bereaved families at the Hillsborough inquest received no public funding for legal representation, in contrast to other parties to those inquiries.

To address this imbalance, the Bill proposes to expand the scope of legal aid available for inquests, to allow bereaved families to access legal help and advocacy for inquests whenever a public authority is an interested person.

In addition, the Bill once enacted will create a new duty on public authorities to only engage legal representation in a necessary and proportionate way, taking into account the:

• comparative position of affected person in respect of their means to engage legal representation;
• nature and extent of the obligations of public authorities to assist in respect of disclosure and other matters;
• importance of the issues under investigation and the need for those matters to be investigated fairly, proportionately, expeditiously and cost-effectively.

This expansion will apply across inquests and both statutory and non-statutory public inquiries.

Hurdles to implementation

However laudable the aims may be of seeking to level the playing field between bereaved families and well-funded public authorities during investigations into mass casualty events, there are serious and fundamental procedural questions which need to be addressed before any such duty can achieve its intended objective. Hopefully these issues will form the basis of future Parliamentary discussions.

Primarily, it remains unclear exactly what is intended by ‘candour’ other than a general duty to be open, honest and frank, and to volunteer information to an inquest in circumstances where that information may be relevant. In any event there is an inherent tension with a potential defendant’s right to silence: where someone asserts that right, they are unlikely to be guilty of lacking candour – and to hold otherwise would fundamentally undermine well established principles of criminal justice. However, any suggestion that the assertion of the right of silence should be subject to third party scrutiny or assessment of reasonableness is seismic to say the least.

The proposal to extend legal assistance to bereaved families has received widespread support. However, with the 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 draft of the 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 would 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, and it remains to be seen how the restriction on public authority legal spend to that which is deemed ‘necessary and proportionate.’ It is inevitable that this may result in satellite ligation, which would only serve to increase overall costs and time to conclusion of the original proceedings.

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 sanction which has been imposed.

Practically, the ability for families to obtain legal aid in respect of inquests where a public authority is an interested party will likely have the perverse consequence of increasing overall costs and time, as additional legal teams come on board. This in turn will only lead to further delays within the already over-stretched coronial system, which will not be to anyone’s advantage.

Conclusion

Whilst the Hillsborough Law is one step close to enactment, and looks likely to enter the stature books in 2027, there remain a number of fundamental questions as to both how it will actually work in practice, as well as how the new obligations dovetail with other well-established principles of criminal law and natural justice.

Before Hillsborough Law formally becomes law, there should be a careful consideration of the potential, but significant, implications to ensure that there is genuinely fairness to all parties concerned.