Introduction:
During the recent state opening of parliament, the new Labour Government confirmed their intention to enact primary legislation imposing a statutory duty of candour on all public servants and authorities. Although public authorities are currently subject to guidance on candour when taking part in inquest proceedings, they are not bound by any statutory duties to tell the truth. According to the Government, the new ‘Hillsborough Law’ intends to ‘change the culture of defensiveness in the public sector that has denied families the justice they deserve and contributed to their suffering’. The inclusion of this law in the 2024 King’s Speech is the direct result of a manifesto promise made by the Labour Party to support the long-standing ‘Hillsborough Law Now’ campaign to oblige state bodies to tell the truth and proactively cooperate with official investigations and inquiries. It is also, in part, a response to the outcome of the recent Infected Blood Inquiry and other high-profile miscarriages of justice such as the Post Office Scandal.
The first half of this blog will focus on why a statutory duty of candour is needed in the UK. With reference to the events of the Hillsborough disaster, I will highlight how the absence of a duty of this kind significantly hinders efforts to establish the truth, and ultimately, deliver justice. The second half then explores how the proposed legislation intends to remedy this issue – how exactly will a statutory duty of candour operate, and be enforced, under the new Hillsborough Law. Although the Government is yet to formally publish a draft bill, it is likely that the contents of the law will mirror the provisions of the Public Authority (Accountability) Bill, a Private Member’s Bill introduced by Andy Burnham, on behalf of Hillsborough Law Now, during the 2016-2017 parliamentary session that ‘fell’ before the 2017 General Election.
Why is a Statutory Duty of Candour required in the UK?
On the afternoon of the 15 April 1989, a fatal crush occurred at the Hillsborough Stadium in Sheffield resulting in the deaths of 97 Liverpool fans and injuring hundreds more. The tragedy unfolded during an FA-cup semi-final fixture between Nottingham Forest and Liverpool that was being played at Hillsborough. Shortly before kick-off, police match commander David Duckenfield made the decision to open a gate at the Leppings Lane end of the stadium, allowing too many Liverpool fans to enter the pens and resulting in severe over-crowding. It was this decision that ultimately caused the fatal crush.
In order to disguise their own failings on the day, South Yorkshire Police began feeding the press false stories about the cause of the disaster. Duckenfield alleged that the gate leading to the Leppings Lane end was ‘forced open’ by fans, a lie that was reinforced by the media who claimed that ‘drunk and ticketless’ supporters were to blame for the disaster. When called upon to give evidence at the first official inquiry (the Taylor Inquiry), police officers frequently repeated these lies, scapegoating Liverpool fans and covering-up the real cause of the tragedy. Similarly, during the first inquest into the disaster, officers falsified reports and altered witness statements to support their narrative. Although a number of police officers have subsequently admitted lying during the first inquest, no criminal prosecutions can be pursued against them as the inquest was not a statutory one, nor were their lies repeated under oath elsewhere. As such, the absence of a statutory obligation to tell the truth encouraged ‘institutional defensiveness’, facilitated the fabrication of false narratives and ultimately compounded the suffering of the Hillsborough victims’ families. It also extended the wait for justice. Not until 2016, nearly thirty years after the disaster occurred, was a verdict of unlawful killing finally delivered by a jury at a second Hillsborough Inquest.
In part, this delay of justice is what the introduction of a statutory duty of candour aims to prevent. Not only would a duty of this kind have helped to establish the truth far faster at the Hillsborough Inquests, but other historic, and ongoing, public inquiries would have benefited from a statutory obligation to tell the truth. Hillsborough is far from the only example, though. Others include the Post Office Horizon IT Inquiry, the Infected Blood Inquiry, and the Grenfell Inquiry, which would all have benefited from the imposition of a statutory duty of candour. Furthermore, from a human rights perspective, the defensive and adversarial manner in which public authorities normally approach inquiry proceedings raises issues of compliance with Articles 2 and 3 of the ECHR. As the Joint Committee on Human Rights recently highlighted, the introduction of a Hillsborough Law ‘would help ensure that the State’s investigative obligations under Article 2 and 3 ECHR are being met.’
The question therefore arises, how exactly will a new statutory duty of candour operate in practice?
The ‘Hillsborough Law’
As noted above, the Hillsborough Law Now campaign have long campaigned on this issue, including producing a draft bill, the Public Authority (Accountability) Bill, which is likely to be used a template for the future Act of Parliament. The duty of candour proposed under clause 6 of this draft bill would place an obligation on all public bodies, public servants and officials to:
- Act in the public interest and with transparency, candour and frankness; and
- Assist court proceedings, official inquiries and investigation where their acts or omissions may be relevant, including by acting without favour to their own position, making full disclosure of relevant documents, material and facts, and setting out their position on relevant matters from the outset of the proceedings, inquiry or investigation.
Pete Wetherby KC, the barrister responsible for drafting the Bill, stated in evidence to the JCHR that the proposed duty of candour would ‘not only require public authorities and corporations responsible for public safety to tell the truth, it would require them to proactively assist the process, from the outset…’
Crucially, these legislative proposals are backed up by criminal sanctions. As per clause 3 of the draft bill, it would be an offence for the chief executive of a public authority to intentionally or recklessly fail to discharge the duty to assist proceedings, inquiries or investigations. It would also be a criminal offence for individual public servants or officials ‘to mislead the general public or media’ or to mislead proceedings, inquiries or investigations in relation to which the duty of candour applies. The obvious benefit of creating criminal sanctions is that it would, theoretically, improve compliance. Unfortunately, history teaches us that without an effective deterrent, there is no guarantee that public servants will always openly tell the truth when their reputations are threatened. An additional benefit of imposing criminal sanctions on those that breach a duty of candour is that it may offer protection to junior public servants who might otherwise be pressured into lying or omitting important details. As Pete Wetherby KC notes, ‘it would stop what happened in Hillsborough, which was senior officers telling junior officers to tell lies.’
The enactment of a general statutory duty of candour would sit alongside a number of other pre-existing obligations related to candour that apply to particular authorities in particular contexts. In domestic public law, a duty of candour applies to public authorities in judicial review proceedings as they have a duty ‘to co-operate and to make candid disclosure … of the relevant facts and … the reasoning behind the decision challenged’.[1] However, unlike the duty proposed by the Hillsborough Law, there are no real enforcement mechanisms for this existing duty in judicial review proceedings. Breach of the duty is not a criminal offence, nor is it actionable in civil law, but it may result in the court drawing adverse inferences against the party in breach during proceedings.
A statutory duty of candour does arise already, though, in a healthcare context. Under Regulation 20 of the Health and Social Care Act (Regulated Activities) Regulations 2014 all health service bodies have a duty to ‘act in an open and transparent way with relevant persons in relation to care and treatment provided to service users’ with specific obligations to notify patients and provide a factual account and apology arising after a notifiable safety incident occurs. This duty of candour is enforced by the Care Quality Commission (CQC) who can, in the most severe cases, bring criminal proceedings against individuals. However, there have been concerns that the statutory duty of candour is not being met by the NHS at present, and as such, the Department of Health and Social Care are currently conducting a review to consider the operation (including compliance and enforcement) of the statutory duty of candour for health and social care providers in England. Interestingly, the chair of the Infected Blood Inquiry, Sir Brian Langstaff, called for the introduction of a statutory duty of candour for all public servants (particularly those working in the Civil Service) in his Infected Blood Inquiry Report published earlier this year. Illustrating the lack compliance with the NHS’ current duty of candour, he commented:
Here, the NHS and successive governments compounded the agony by refusing to accept that wrong had been done. More than that, the government repeatedly maintained that people received the best available treatment and that testing of blood donations began as soon as the technology was available. And both claims were untrue.
The defensiveness and lack of honesty observed during the Hillsborough Inquests was also clearly apparent throughout the Infected Blood Inquiry. According to Sir Brian Lamgstaff, a culture change is needed across the NHS in order to prevent cover-ups and to acknowledge mistakes, with individual managers being held personally accountable if they fail to take action. From a practical perspective, the apparent failure of the NHS’ statutory duty of candour to promote honesty proves that the threat of criminal sanctions alone is not necessarily enough to ensure compliance. In order for the new Hillsborough Law to be successful, the CPS must be willing to enforce the offences associated with breach of the duty.
Conclusion
Clearly, the introduction of a statutory duty of candour in the UK is long overdue. The ‘culture of defensiveness’, so apparent in the wake of public disasters in the UK, prolongs the suffering of victims’ families and delays the delivery of justice. The Hillsborough Disaster is just one of a litany of historic and ongoing miscarriages of justice in modern Britain that proves this point. The decision to introduce a Hillsborough Law is therefore a welcome one. However, in order for the new legislation to succeed, lessons must be learned from the apparent failure of the NHS’ statutory duty of candour – criminal sanctions for breach of the duty have to be enforced to ensure compliance. Parliament should also be alive to these issues when scrutinising the Bill upon its introduction to the House.
Kate Dewsnip.
Kate is a Graduate Teaching Fellow and PhD candidate at the University of Liverpool School of Law and Social Justice. She is a contributing writer for the Constitution Society.
The Constitution Society is committed to the promotion of informed debate and is politically impartial. Any views expressed in this article are the personal views of the author and not those of The Constitution Society.
[1] Belize Alliance of Conservation Non-Government Organisations v Department of the Environment [2004] UKPC 6 at 86.