On 20 November, the COVID-19 Inquiry, chaired by Baroness Hallett, published its second report on ‘core decision-making and political governance’ (Module 2). The report set out nineteen recommendations and drew a number of stark conclusions.
Perhaps most strikingly, Baroness Hallett determined that had the Johnson Government responded faster in March 2020, and imposed a mandatory national lockdown just one week earlier, an estimated 23,000 lives would have been saved. Johnson’s indecision and hesitancy again cost lives during the second wave when in September and October 2020 he “repeatedly changed his mind on whether to introduce tougher restrictions and failed to make timely decisions”. Ultimately, the UK Government’s response was “too little, too late”.
The findings are generally damning. The Inquiry describes a “toxic and chaotic culture” that existed at the heart of Government. Johnson’s chief adviser, Dominic Cummings, “materially contributed to the toxic and sexist workplace culture” and “poisoned the atmosphere in 10 Downing Street”. According to the Inquiry, Johnson himself not only failed to tackle this toxicity, but at times actively encouraged it. Furthermore, the events of ‘Partygate’ caused “huge distress” to members of the public and “exposed wider cultural issues”. As Baroness Hallett put it: “the very least the public should be entitled to expect is that those making the rules will abide by them”.
The COVID-19 Inquiry’s conclusions belong to a far broader national debate about culture, candour and accountability inside public governance. The events of ‘Partygate’ may constitute a recent and high-profile example, but in reality they are only one manifestation of a much older pattern — from Hillsborough to the Post Office Scandal — in which institutions have struggled when it mattered most, damaging public trust as a result. Against this backdrop, the proposed Hillsborough Law, with a statutory duty of candour for public authorities, presents a potential remedy. But can it achieve the cultural shift within public authorities that the Prime Minister asserts it must? How exactly will it hold authorities and officials to account? And, ultimately, will it succeed in restoring trust in British politics?
This blog considers these questions through the lens of the pandemic. Specifically, it explores whether a statutory duty of candour could have influenced the culture in Government during COVID, and if not, whether it would at least have created clearer routes to legal accountability for figures such as Johnson and Hancock before the ultimate publication of the Covid Inquiry. But first, I’ll begin by outlining the key findings and conclusions of the Module 2 COVID-19 Inquiry report.
Inquiry findings
The COVID-19 Inquiry’s second set of modules has focused on ‘the core political and administrative decision-making across the UK in response to the COVID-19 pandemic’. Importantly, the report assesses the responses of all four UK governments to the emergency. The sections below briefly outline the report’s key findings and conclusions, grouped thematically.
1) Delay and indecision repeatedly cost lives
The initial response to the pandemic was ‘marked by a lack of information and a lack of urgency’ and all four nations failed to ‘take sufficiently timely and effective action’ to limit the spread of the virus. The UK Government waited too long to introduce a mandatory lockdown. Indeed, if a lockdown had been introduced one week earlier, approximately 23,000 lives could have been saved during the first wave of infection up to the 1 July 2020. Furthermore, if the UK Government had acted promptly a mandatory lockdown could have been avoided entirely.
The UK government, the Welsh Government and the NI Executive introduced restrictions too late in response to the second wave of infection in autumn 2020. These restrictions were also not in place for long enough, or ‘were too weak to control the spread of the virus’. In England, if a ‘circuit breaker’ lockdown had been introduced in later September or early October 2020, the second national lockdown could have been shorter or avoided entirely. In late 2020, all four governments failed to recognise the threat posed by the more transmissible Alpha variant and did not take action until infection levels were critical.
2) Expert advice was high-quality but constrained by various factors
The Inquiry found that SAGE (the Scientific Advisory Group for Emergencies) provided high-quality advice ‘at extreme pace’, but the effectiveness of SAGE’s advice was constrained by various factors including a lack of clearly stated objectives by the UK government. The efficacy of SAGE’s advice was also impacted by the limited information provided by the UK government on its overall objectives when advice was commissioned, which made it harder for SAGE to prioritise which advice was given when.
3) Individuals with vulnerabilities and/or inequalities faced a higher risk of dying
Older people, disabled people and some ethnic minority groups faced a higher risk of death from Covid-19. The Inquiry found that people from a Black African and Black Caribbean background had the highest rates of mortality during the first wave of the pandemic. From the second wave onwards, the highest mortality rates were among people of an Asian or Asian British background. The risk of harm was also strongly increased by socio-economic factors.
Children, although not at risk of serious direct harm from the virus, ‘suffered greatly from the closure of schools and requirement to stay at home, and the consequent loss of interaction with friends and family and limited access to play’. All four governments failed to sufficiently to consider the consequences of school closures for children’s education and physical and mental health.
4) Chaotic and ill-prepared decision making
The Inquiry found that the UK Cabinet was often sidelined in decision-making. Similarly, in the Scottish Government, authority rested with a small group of ministers. However, in Wales, the Welsh Cabinet ‘was fully engaged, with decisions mostly by consensus’.
The power sharing arrangements in NI weakened the ability of the Northern Ireland Executive to coordinate the pandemic response and no one was sufficiently empowered to hold departments to account. On multiple occasions, decision-making was marred by political disputes between the DUP and Sinn Fein ministers.
Decision-making was also affected by a ‘toxic culture’ at the heart of the UK government. The Inquiry heard evidence about the destabilising behaviour of specific individuals, including Dominic Cummings. By failing to tackle this chaotic culture and, at times, by actively encouraging it, Boris Johnson reinforced a culture in which the loudest voices prevailed and the views of other colleagues, particularly women, often went ignored, to the detriment of good decision-making.
5) Erosion of public trust and confidence
Instances where ministers and advisers appeared to break Covid-19 rules caused huge distress to the public. This was especially the case for people who had endured huge personal costs in abiding by the rules, with many bereaved people unable to be with their loved ones when they died. Instances where rule-breaking was not swiftly addressed also undermined public trust and increased the risk of people not complying with rules designed to protect them.
6) Confusion regarding public health communications and legislation
Although the ‘Stay at Home’ campaign was effective in maximising compliance with the first lockdown, its simplicity risked discouraging those requiring help or medical treatment from leaving home.
The complexity of regulations, the local ‘tier’ system and variations in rules across the four nations confused the public and jeopardised compliance. Confusion between advice and legally binding restrictions also contributed to enforcement issues with the police. Constitutionally, the use of emergency regulations must be subject to greater parliamentary scrutiny in future emergencies.
7) Lack of trust between the Prime Minister and the leaders of devolved nations and regions affected collaborative working
The Inquiry concluded that this lack of trust ‘coloured the approach to involving the devolved administrations in UK government decision-making throughout the pandemic’.
So, what might we do differently next time? While that answer is complex and lessons may be learned from the Covid Inquiry for a future public health crisis, the Hillsborough Law currently making its way through parliament has the potential to drastically alter the relationship between the public and the state and to make more transparent and accountable decision making during a crisis.
A statutory duty of candour
If it becomes law, Chapter 2 of Part 2 of the Public Office (Accountability) Bill (otherwise known as the Hillsborough Law) will impose a duty on all public authorities requiring them to ‘promote and take steps to maintain ethical conduct, candour, transparency and frankness within all parts of the authority’. In order to discharge this duty, a public authority is obligated to adopt a code of ethical conduct which must, in particular:
(a) set expectations that the people who work for the authority should act in accordance with a duty of candour in matters relating to their work;
(b) explain the practical ways in which the standards set by the code are to be met;
(c) set out the disciplinary consequences for breaching the code (inc. when a breach will amount to gross misconduct);
(d) otherwise promote ethical conduct, candour, transparency and frankness within all parts of the authority.[1]
A public authority’s code of ethical conduct must also set out how those who work for the authority can raise internal compliance concerns, including whistleblowing procedures, and how people outside the authority may make complaints about the conduct of the authority or its staff (clause 9(4)).
For the purposes of this Part, Sch 4 of the Bill defines “public authority” to include government departments, Scottish and Welsh ministers, police forces and policing bodies, local authorities, NHS bodies, the army, and schools and further education providers. In a pandemic context, therefore, government departments, including the Department of Health and the Cabinet Office, would have been required to maintain a code of ethical conduct imposing a duty of candour, transparency, and frankness on all those working for them. This would include ministers within those departments, as well as the civil servants who support them.
It is crucial to note that the duty of candour cannot, nor is it designed to, prevent politicians from making ‘bad’ decisions or governing poorly. Likewise, it cannot stop police officers or medical professionals from making mistakes that unintentionally cause harm. Instead, its purpose is to change the culture within authorities in the aftermath of poor decision-making, promoting transparency and openness.
Returning to a key question this blog post seeks to address: would a statutory duty of candour have prevented the “toxic and chaotic” culture that developed at the heart of government during the pandemic? And, relatedly, could it have stopped the events surrounding ‘Partygate’?
In truth, the imposition of a duty of candour within government departments and the civil service would have done little to directly prevent the toxic and sexist workplace culture that emerged in No.10. It would not have stopped Dominic Cummings’ purported aggressive and misogynistic management style nor Johnson’s tolerance or encouragement of chaos. These failures stem from leadership and governance, not from an absence of candour and transparency.
Similarly, a statutory duty of candour in place before 2020 would not necessarily have prevented ‘Partygate’ itself. Politicians and civil servants breaking lockdown laws was a behavioural breach, not a failure to disclose. But the duty would almost certainly have altered what followed. Once the scandal broke, evidence of an attempted cover-up quickly surfaced. The Prime Minister was alleged — and later found by the Commons Privileges Committee — to have deliberately misled Parliament on multiple occasions between December 2021 and May 2022. There were also claims that senior figures were advised “clean up” their phones in the midst of the scandal. It is precisely this kind of misleading, evasive and delayed disclosure that the Hillsborough Law seeks to prohibit. Under a statutory duty of candour, the government would have been required to acknowledge breaches earlier, correct misleading statements promptly, and cooperate fully with investigations. In this sense, the duty of candour would not have prevented the wrongdoing, but it may well have prevented the deceit that followed.
Beyond the general duty of candour, Part 1 of the Hillsborough Law will also impose a specific Duty of Candour and Assistance (DoCA) on “public authorities and public officials” to tell the truth and proactively assist with inquiries, inquests, and investigations. The DoCA comprises three core obligations: (1) authorities and officials must proactively notify an inquiry or investigation if they believe their actions may be relevant or they hold information likely to be relevant; (2) once they have notified the inquiry or investigation, they must provide “all such assistance that they can reasonably give,” including disclosing relevant evidence; and (3) the public official in charge of the authority must take all reasonable steps to ensure compliance with the first two obligations. Crucially, where any of these obligations is breached and the public official intentionally or recklessly impedes the inquiry or investigation in achieving its objectives, liability for a new criminal offence may arise. The offence of “failing to comply with the DoCA,” set out in clause 5 of the Bill, carries a maximum sentence of two years’ imprisonment.
Since its inception, the COVID-19 Inquiry has been hampered by delays caused by disputes with government bodies over the volume, relevance and redaction of evidence. The UK Government initially resisted disclosing key material. Most notably, the Cabinet Office sought judicial review of the chair’s direction to provide un-redacted WhatsApp messages and private documents — a challenge it ultimately lost. The Welsh Government likewise failed to provide full disclosure at the first request, requiring the Inquiry to issue a further demand for the outstanding material. The DoCA contained in the Hillsborough Law, however, would likely have prevented such delays. Its proactive disclosure requirement would have compelled all parties to cooperate with the Inquiry much earlier, and the possibility of criminal sanction would, in theory, have acted as a deterrent against withholding information.
Furthermore, the DoCA has the potential to save considerable time and money during the inquiry process. The COVID-19 Inquiry is on track to become the most expensive public inquiry in UK history, and some have begun to question whether such a prolonged process is, in fact, ‘worth it’. Again, the new DoCA may offer a partial solution. As the Bill’s drafters have argued, and the Government themselves have acknowledged, the proactive duty is intended to “deliver better, swifter justice, and save substantial amounts of public funds”. The duty also requires authorities to provide position statements at the earliest reasonable opportunity: a measure designed to streamline inquiries and investigations from the outset.[2] In a context where long, expensive inquiries often fuel cynicism about state accountability, any measure that accelerates disclosure and reduces obstruction is likely to contribute to restoring public trust.
Criminal offences
Beyond introducing new statutory duties, the Hillsborough Law also creates several new criminal offences. The first, noted above, is the offence of failing to comply with the DoCA (clause 5). Clause 11 introduces a second offence, that of ‘misleading the public’. The Bill also replaces and codifies the former common-law offence of misconduct in public office by creating two new statutory offences: ‘seriously improper acts’ (clause 12) and ‘breach of duty to prevent death or serious injury’ (clause 13). While the available sentences differ, the common aim of these provisions is to deter conduct associated with cover-ups and combat institutional dishonesty.
In the COVID context, if these offences had existed, it is at least arguable that elements of two of them might have supported potential prosecutions of Boris Johnson and Matt Hancock respectively, or failing that, may even have had a preventative function.
In relation to his behaviour around ‘Partygate’ Johnson could, in theory, have been liable for the offence of misleading the public. Under clause 11(1) of the Bill, a public official commits the offence if, in their capacity as an official, ‘they act with the intention of misleading the public or are reckless as to whether the act will do so’ and ‘they know or ought to know that their act is seriously improper’.
Whether conduct is ‘seriously improper’ is ultimately a question for a jury. However, clause 11(3) provides that an act can only be considered as ‘seriously improper’ if it:
(a) involved dishonesty that was significant or repeated in respect of matters of significant concern to the public;
(b) caused, or contributed to causing, harm to one or more other persons, or had the potential to do so, and
(c) departed significantly from what it is to be expected in the proper exercise of the person’s functions as a public official.
As the Commons Privileges Committee concluded, Johnson deliberately misled Parliament about his involvement in, and the nature of, the gatherings that took place in 10 Downing Street while strict COVID regulations were in force. He also repeated these lies outside of Parliament in various interviews at the time. If such statements were construed as statements made to the wider public, and if prosecutors could establish that he was at least reckless as to whether those statements would mislead the public, then the offence could theoretically apply.
Elsewhere, the offence contained in clause 13, breach of duty to prevent death or serious injury, could feasibly be applied to senior officials and politicians who had direct responsibility for poor decisions during the pandemic that resulted in significant harm to the public. Examples might include Johnson and his senior advisers’ decision to delay the first and second national lockdowns, and Hancock and senior Department of Health officials’ failures to adequately prepare PPE or manage care home discharges.
Ultimately, the purpose of this analysis is not to reach a conclusion or advocate for individual guilt, but to illustrate how the new offences under the Hillsborough Law could be applied to hold officials and authorities to account in the wake of national scandals and crises such as the COVID-19 pandemic. By imposing a clear criminal standard of accountability, the law has the potential to drive a cultural shift within public institutions and, over time, help restore the public’s trust in both politics and the mechanisms designed to uphold it.
Concluding remarks
As the Inquiry’s second report concludes, the COVID-19 pandemic exposed systemic weaknesses in governance, accountability, and transparency, eroding public trust in politics. The Inquiry’s various findings outline, comprehensively, the mistakes made across all four nations and demonstrate how a toxic culture at the heart of Westminster undermined effective governance at the height of the emergency. In doing so, the Inquiry not only documents past failings but also highlights the structural and cultural conditions that allowed them to occur. The Hillsborough Law, through its statutory duty of candour and new criminal offences, offers a potential framework for responding to these lessons. While it cannot undo past harm, it seeks to incentivise openness and provide meaningful mechanisms of accountability — measures which, if effectively implemented, may help rebuild public confidence in politics, politicians and public institutions over time.
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] Clause 9(4)
[2] Clause 2(6)