‘Hillsborough Law’ : What will this mean for public authorities?

The King’s Speech included the introduction of the ‘Hillsborough Law’, which would create a legal duty of candour on public authorities and officials, obliging them to tell the truth and proactively cooperate with official investigations and inquiries.

The government has not yet published a draft bill, however it is expected that the Public Authority (Accountability) Bill put forward by the then Labour MP Andy Burnham in 2017 will form the basis of this. Under that proposed Bill, failure to comply with the duty (i.e. by misleading the general public, media or any inquiry/ investigation to which the duty applies and/or failing to provide information in a witness statement or report) would be a criminal offence, and could result in a prison term of up to two years. Whilst the intended extent of any criminal sanctions for failure to comply with the proposed law is unknown at this stage, sanctions are likely to be included to ensure that the duty of candour is taken seriously.

Why was there call for a duty of candour?

Campaigns for a duty of candour have been ongoing for many years and have gained momentum following a series of scandals where accountability and transparency of public authorities was shown to be lacking

Hillsborough campaigners have been calling for a duty of candour on public authorities and officials particularly since the second coroner’s inquests into the disaster in 2016, which found that 96 football fans were not responsible for their own deaths and were unlawfully killed. This verdict came 27 years after the tragic events of that day. During this period the families endured a series of inquiries and investigations, each time having to relive their experiences, with a perceived lack of accountability shown by public authorities throughout.

The government states that its aim with the proposed introduction of the ‘Hillsborough Law’ is to “address the unacceptable defensive culture prevalent across too much of the public sector”1. References were made to the experiences of those affected by various other high-profile scandals in addition to Hillsborough, recognising that some families have faced decades of injustice and indignity in the search for the truth.

The duty of candour is not a new concept; for example, it is an established principle in judicial review proceedings that a respondent authority ‘owes a duty to the court to cooperate and to make candid disclosure… of the relevant facts and…the reasoning behind the decision challenged’. There is no real sanction for failing to comply with the duty in this context, although a court may draw adverse inferences against the respondent authority if found to be in breach.

A statutory duty of candour was also introduced in 2014 for NHS Trusts (and for all other healthcare providers the following year) after the Francis Report, which followed the public inquiry into Mid Staffordshire NHS Foundation Trust. The Francis Report identified a lack of openness and transparency by the Trust in relation its failures. The duty was introduced under Regulation 20 of the Health and Social Care Act (Regulated Activities) Regulations 2014, which says a ‘health service body must act in an open and transparent way with relevant persons in relation to care and treatment provided to service users’. The Care Quality Commission (CQC) will investigate incidents where they have concerns and does have enforcement powers, including the imposition of conditions and criminal prosecution, although the latter is likely to be exercised only in the most serious of cases.

A duty of candour was also introduced by the College of Policing in December 2023 as part of the police response to the Hillsborough Families Report.

Pressure to introduce a legal duty of candour on public authorities and officials has however continued to grow, particularly in recent months following further criticism of public authorities in high-profile public inquiries, which may have been the final trigger for the government to take action.

What will this mean for public authorities going forward?

One of the main aims of the proposed ‘Hillsborough Law’ is to improve accountability and transparency within public sector organisations when things go wrong, to get to the truth of a matter as quickly as possible and provide earlier closure for those affected. Those who work within public sector organisations will have to keep the duty of candour in mind when responding to incidents, although for some, this responsibility may already be fairly well embedded. By fostering a culture of openness and narrowing down the issues in an investigation at an early stage, this may help to reduce any potential reputational damage for the organisation, and also reduce the time and costs associated with engaging with official investigations and inquiries, as well as deliver answers more quickly to those affected.

The likely threat of sanctions for failure to comply with the duty may offer some protection to junior public servants, who might previously have felt or been pressured by senior officials to lie or omit details for fear of retribution, further action and/or reputational damage.

A renewed focus on transparency may also help to highlight potential issues in practice, which could allow for earlier intervention to avoid similar incidents in the future.

Should you require any further information on the implications of the Hillsborough Law or conducting or engaging with independent investigations and inquiries, please do not hesitate to contact the Inquiries and Investigations team at Eversheds Sutherland (International) LLP.

1The King’s Speech 2024: background briefing notes, page 86