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, it appears that any such law may now essentially be stagnant.

Whilst the draft Public Accountability Bill (also known as the Hillsborough Law) sought to establish a statutory duty of candour – being an obligation on public servants to be open, transparent and honest following public disasters – these proposals will not now proceed any further, at least not in the current session of Parliament.  Rather than enact legislation and subject it to parliamentary scrutiny, the Government has, instead, indicated it will sign a comparable Charter.

What does the Charter say?

The Charter responds to Bishop James Jones’ previous report published in 2017, in which he identified 25 points of learning.  One of the key recommendations within this was the creation of a Charter for families bereaved through public tragedy.  This Charter seeks to ensure that the lessons of the Hillsborough disaster and its aftermath, are learned, to prevent those who are affected by public tragedy in the future from having the same experience.

The Charter lists six key points as to how the Government is committed to acting in practice, within the confines of the existing rules, regulations and codes.  The six rules are:

1. In the event of a public tragedy activate its emergency plan and deploy its resources to rescue victims, to support the bereaved and to protect the vulnerable.
2. Place the public interest above out own reputation.
3. Approach forms of public scrutiny, including public inquiries and inquests with candour, in an open, honest and transparent way, making full disclosure of relevant documents, material and facts.  Our objective is to assist the search for the truth.  We accept that we should learn from the findings of external scrutiny and from past mistakes.
4. Avoid seeking to defend the indefensible, or to dismiss or disparage those who may have suffered where we have fallen short.
5. Ensure all members of staff treat members of the public and each other with mutual respect and courtesy.  Where we fall short, we should apologise straight forwardly and genuinely.
6. Recognise that we are accountable and open to challenge.  We will ensure that processes are in place to allow the public to hold us to account for the work we do and the way in which we do it.  We do not knowingly mislead the public or the media.

Hurdles to implementation

However, far from addressing the concerns highlighted by those affected by the Hillsborough tragedy, as well as other public disasters, the Charter is considered by those who are intended to benefit from it, as falling far short of the mark. Not only does a Charter lack the weight of its statutory counterparts, but in addition there are serious and fundamental procedural questions which need to be addressed before for any such duty can achieve its intended aims.

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, the idea that any assertion of the right of silence should be subject to third party scrutiny or assessment of reasonableness is seismic to say the least.

Another difficulty with the Charter is that it leaves open to interpretation the definition of a public tragedy. The answer may be that the public will know a tragedy when they see one, but the definition cannot simply be determined by the number of people injured or who have died. To set any such arbitrary distinction risks severe unfairness and injustice.  In addition, the Government’s pledge to activate its emergency plan and deploy resources to rescue victims and support the bereaved is perhaps only a restatement of the current emergency services framework and is not really an extension of the existing procedures already in place.

In respect of the Charter’s pledge regarding public inquiries and inquests, the granular detail which supports this pledge states, “full disclosure may not always be possible in relation to broader scrutiny, or enquiries…in signing the Charter, the Government is not intending to widen the disclosure obligations which currently apply, or to narrow the well-established exceptions to those obligations”.

One of the issues which arose from the various inquiries into Hillsborough, was the potential withholding of information and lack of disclosure.  However, the Charter does no more than to simply re-state the current framework regarding disclosure and expressly does not seek to expand the current regime.  It is unclear, therefore, how this pledge marks any form of change than what has already gone before.

In addition, whilst there may be a very strong moral imperative for public servants to be open and honest following tragedies, absent a ‘stick’ with which to enforce compliance and punish breach, there remains a question as to how compliance will – or even can – be enforced.

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

Whilst a Hillsborough Charter is broadly to be welcomed and may be seen to go some way towards addressing the concerns and queries raised by the families following that disaster and subsequent litigation, there is also much commentary that it simply falls far short of the expected mark and does not go as far as anticipated.

As the Charter does not have statutory force, it is not clear what the consequences of breach may be for us who act in contravention of it.  Possibly not much.

In parallel with the Hillsborough Charter, the police Ethical Code of Conduct now includes a duty of candour, but aside from any disciplinary proceedings arising in respect of individual officers, it is not clear how the pledges are to be enforced.  By its nature, the criminalisation of particular activities rests in the procedural ability to impose a penalty for non-compliance  However, in the absence of statutory footing for the Hillsborough Charter, there is no stick and it is difficult to see how breach, or non-compliance can be enforced.

That being said, the law does not operate in a vacuum and were the Hillsborough law to be enacted in the terms previously suggested, this would potentially cause significant tension within the criminal justice system and simply could not be imposed unilaterally without detailed and considered consideration of parallel issues which would be affected.

The Labour Party have indicated, in its manifesto, that it will reconsider a manifesto pledge around the Hillsborough law and the results of a general election in 2024 remain to be seen.  Whilst it may be the case that any future Labour Government considers that the Hillsborough Charter, as exists, is sufficient, this is unlikely to satisfy those who have been personally affected by the Hillsborough law and who do not consider that the Charter has, in fact, gone far enough.

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.