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 progress might now have been made.

His draft Public Authority (Accountability) Bill (also known as Hillsborough Law), prompted by his involvement with the Hillsborough families, would have required public authorities to be open, transparent and honest and to admit responsibility following public disaster 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, and the recent Conservative government stepped back from introducing a statutory duty, establishing instead the Hillsborough Charter.

However, the King’s Speech has confirmed that the current Labour government intends to proceed with the introduction onto the statute books of a Hillsborough Law. At his first Labour Party conference as Prime Minister, Sir Kier Starmer, also promised that a ‘Hillsborough law’ will be introduced in Parliament before the next anniversary of the 1989 football stadium tragedy in April 2025.

What will Hillsborough Law say?

There is currently no draft legislation before Parliament, but it is likely that any future wording will closely mirror the above-mentioned Public Authority (Accountability) Bill. That draft legislation proposed establishing 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.

The draft Bill 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 was 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.”

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.

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 is that until draft legislation is available for comment, proposals for a Hillsborough Law 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, any pledge in terms of activation of an emergency plan and deployment of resources to 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.

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 fine imposed.

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 it now appears that progress will be made towards 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.

The law does not operate in a vacuum and were the Hillsborough Law to be enacted in the terms previously suggested in 2017, this would 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 naturally flow from the proposals.

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.

Care Quality Commission (CQC) inspections have fallen to their second lowest level in almost 10 years, as the day-to-day regulatory function of the public body continues to lag behind pre-pandemic activity.

According to new data, physical inspections by the CQC have dropped from a peak of almost 23,000 in 2016, to just less than 8,000 in 2023 – a marginal increase on 2020 figures, which showed that 7,711 inspections were carried out during the height of the COVID-19 pandemic.

Of the 107 inspections with an overall rating of ‘Requires Improvement’ or ‘Inadequate’, only four have resulted in completed and published full Quality Statement reviews.

The fall in inspections also coincides with the commencement of the CQC’s new operating model, which may account for some of the reduction.

Bill Dunkerley, regulatory associate partner at Pannone Corporate, which conducted the annual research under the Freedom of Information Act, commented: “Despite the fanfare and extensive publications to promote its introduction, the CQC’s new regulatory model has had something of an inauspicious start.

“The regulator was hopeful that its new approach would enable it to be more dynamic in its assessment of services, and permit more contemporaneous data collection to take place. Far from becoming a more proactive, dynamic and responsive agency, as the data shows, the CQC is becoming more sedentary in its approach.”

The research shows that despite an increase in the number of concerns being received by the CQC, the total number of regulatory actions taken by the Commission has fallen year-on-year and currently sits at around half of pre-lockdown levels (10,618 in 2019; 5,783 in 2023). Although there was a clear drop-off in the number of regulatory actions in 2020, figures have remained consistently low since then, compared with upwards of 15,000 each year in the period following the CQC’s receipt of enhanced powers in 2015.

In addition, the use of warning notices has dropped significantly, from a peak figure of just over 1,500 during 2015 to less than 600 in 2023. Despite a flurry of prosecutions over the last few years, the annual figures also show that prosecutions are decreasing rapidly. There are currently 121 open criminal investigations concerning specific incidents or unregistered providers.

Dunkerley added: “To be an effective regulator going forwards, and one with real teeth, the CQC has to combine its new inspection and assessment framework with meaningful regulatory activity. Whilst to date, the CQC could have been seen to be relatively proactive – undertaking inspections of providers at fairly reasonable intervals – an inherent danger within its ‘data-driven’ approach is that this may result in it becoming reactive, as recent data perhaps tends to indicate.

“At the end of the day, the CQC’s new regulatory model does not change its investigatory and enforcement powers. The latest figures suggest that either the CQC is becoming less active, or is achieving compliance by providers without the need to resort to use of its enforcement powers.”

Following Pannone Corporate’s Freedom of Information Act request to the Care Quality Commission (CQC), regulatory associate partner, Bill Dunkerley, looks in more detail at what the statistics tell us and asks: what next for the CQC? Read more here:

What next for the CQC

Pannone Corporate – the North West law firm – has expanded its team with the senior appointment of David Walton.

David joins Pannone’s regulatory team as partner, bringing over 30 years’ experience to the role. He joins from Keoghs LLP, where he played an instrumental role in establishing the crime and regulatory team, working throughout his career on high profile prosecutions instigated by the CPS, HSE, Environmental Health and the Environment Agency.  This includes the CPS-led prosecution following the death of four employees in the Bosley Mill (Macclesfield) explosion in 2015.

At Pannone, David will be responsible for supporting corporate and individual clients facing investigation and/or prosecution by a raft of bodies, including the Police, the HSE, CQC, CIW and Trading Standards, following serious work place accidents or incidents. He will work alongside associate partner Bill Dunkerley to promote the regulatory team’s capabilities to existing and new clients of Pannone Corporate.

Paul Jonson, senior partner at Pannone, said: “Client services is an integral part of our proposition as a firm and that can only be delivered by a highly skilled and talented team. We continue to build our expertise at all levels and David’s appointment is a significant hire – not only for the regulatory team, but the firm as a whole.

“David has an excellent reputation within the marketplace, consistently being ranked as a ‘leading individual’ by Legal 500 and Chambers rankings. He has a wealth of experience in handling heavyweight health and safety prosecutions over a hugely successful career and we’re delighted to have him onboard.”

David said: “I have enormous respect for the Pannone Corporate brand and for the people who have established it over a relatively short period of time.

“I believe my professional and personal background, and my approach to workplace life, is ideally suited to the Pannone culture and to the people who work there. Bill Dunkerley was my assistant for several years when he worked at Keoghs and it’s exciting for both of us that we have the opportunity to work together again. Many of our clients and peers have commented that it is great to see the ‘Dave Walton/Bill Dunkerley team’ back together again!”

Commenting on the sector, he added: “Traditionally, regulatory lawyers are called into action when a client is in distress. Whilst that will undoubtedly continue, I believe the sector will carry on evolving in line with the HSE’s own strategy for the next 10 years, which includes an increased focus on the prevention of accidents. As a result, there will be considerable opportunities for the team to support clients in improving what they already have in place, stress testing systems and procedures and reinforcing key aspects of employee training.”

The results of Pannone Corporate’s 2023 Regulatory survey are in!

Earlier this year we invited responses on a number of issues, to gauge the current concerns and anxieties within businesses as to their compliance obligations and worries for the coming year.

Responses continue to be received, although at this early stage a number of clear trends have already started to emerge.

What EHS issues are currently causing the greatest concerns for businesses?

By far and away the most common concern for recipients of the survey is the issue and impact of sustainability, with 75% of respondents highlighting this as an area of current concern for them and their business.

• Much commentary has already been prepared as to the increasing awareness and presence of sustainability as a concept, and we consider that the focus on re-use, recycling and drive towards a circular economy will continue to pervade all aspects of day-to-day business operations, across sectors.
• We have already started to see claims in the UK against Boards regarding the accuracy of their green credentials, and this area only looks set to further dominate business attention over the coming months and years.

Of almost equal concern amongst respondents to our survey (62%) was their ability to attract and retain quality staff.

• This is an issue which may have its roots in Brexit, but which has likely been exacerbated by global events since 2020. In our experience, employees are now more conscious of issues arising within their working environment and less likely to accept conditions that may be prejudicial to them.

However, somewhat surprisingly, less than 40% of respondents ranked employee wellbeing as a current concern for their business.

• Despite recent emphasis on employee wellbeing within the wider media, and an express intention by the Health and Safety Executive in its current Business Strategy to address workplace stress, on a practical level it does not appear that this external pressure has translated into a significant business priority at this time.
• It is only a matter of time before enforcement action is taken in connection with employee wellbeing, and it is hoped that businesses address their mind to this growing area sooner rather than later.

What has had the biggest impact on EHS?

A clear concern amongst respondents to our survey is confusion caused around the introduction of new legislation, the extent to which new regulations will apply to them and the potentially limited guidance available from central Government in respect of discrete issues, with one respondent stating a desire for, “plain and simple,” language to be used.  For regulations and guidance to be effective, they need to be capable of understanding and comprehension by recipients.

Added to this, the still unknown impact of the Retained EU Law Bill is continuing to cause anxiety for many respondents to our survey, with a number highlighting this as a concern for the immediate future.

The draft Bill continues to work its way through Parliament but, if enacted in its current form, risks removing overnight the majority of EU-derived workplace regulations, including the Working Time Directive, Work at Height Regulations and CDM. Were this to occur, it would have a seismic impact on all businesses and would fundamentally change the nature of workplace regulation.

How can businesses prepare?

The world of workplace and business regulation has been evolving over a number of years, and global events since 2020 have accelerated this change. For example, not only has there been an increase in the number of matters subject to regulation, but the manner and methodology by which regulators discharge their functions has also had to be revised.

These changes look set to continue, and what is clear from the survey responses is that businesses appear to be less concerned with traditional compliance issues and physical health and safety and are currently focused instead on novel issues.

No one can predict the future, but the recent shift in the nature of workplace compliance looks set to continue and businesses should take steps to embrace these changes.

As Lord Robens suggested in his 1972 report, which laid the foundation for the Health and Safety at Work etc Act, what he considered was required was a “greater acceptance of shared responsibility, for more reliance on self-inspection and self-regulation and less on state regulation.”

Going forwards, we consider that rather than businesses addressing their mind to specific risk as they arise – as may have been the case in respect of traditional health and safety concerns and risks to physical safety – what the world of workplace compliance increasingly requires now is a holistic approach.

For example, in respect of employee wellbeing, provision of workplace perks is unlikely to be sufficient on its own. Whilst such measures will usually be appreciated by a workforce, what is of increasing importance is the condition of their entire employment relationship, including in respect of management culture, monotony of daily routines and efficiency of IT systems.

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.