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.