Calls for a ‘Hillsborough Law’ and increased accountability of public servants have been voiced for many years.  However, despite a number of independent inquiries and investigations, litigation and even draft legislation being prepared, 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.

At his first Labour Party conference as Prime Minister, Sir Kier Starmer also promised that a ‘Hillsborough law’ would be introduced in Parliament before the next anniversary of the 1989 football stadium tragedy in April 2025. Although that deadline passed, draft legislation has this month finally be published and received its first reading in the Commons.

 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, and in the public interest. No further definition is provided within the draft legislation, other than to state that it requires 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 the 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, 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 expressly excluded from the definition.

The Bill does not go so far as Andy Burnham’s initial proposals, which suggested including with the definition, “entities with a private structure but which are majority owned by public funds.”

Parity of funding

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.

Reform of Misconduct in Public Office offence

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.’

1. Seriously Improper Acts: it is proposed that 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.
2. Breach of Duty to Prevent Death or Serious Injury: it is proposed that 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.

It is proposed that both offences will be indictable only, and punishable by significant custodial sentences.

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 for 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 and honest. 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 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 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 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, and it remains to be seen how the restriction on public authority legal spend to that which is deemed ‘necessary and proportionate.’

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.

Conclusion

Whilst it appears that progress can now be made towards finally establishing a statutory Hillsborough Law, which will be welcomed by many and may be seen as going some way towards addressing the concerns and queries raised by the families following that disaster and subsequent litigation, there are equally fundamental questions and clarifications which are required to be openly debated before any proposed legislation can be enacted.

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