Stopping the culture of denial, obfuscation, and blame-shifting
Post-Hillsborough, Elkan Abrahamson explains the importance of a new draft law in forcing public bodies to own up to their mistakes
As lawyers we appreciate how commonplace it is
to lie; after all much of our litigation would disappear
if everyone told the truth. However, we also appreciate the value of the truth and many of us spend our working lives in the search for it.
It is easy to understand why people are reluctant to admit to wrongdoing. It is a little more difficult to understand why their colleagues would support them in the effort to conceal the truth. One can see why organisations such as the army and the police try so hard to foster a collegiate attitude of supporting each other. All too easily this develops to a wish to protect others, even when they do wrong.
We will all have come across such a defensive attitude and some of us will have been tempted to defend our own colleagues, even when their acts have been indefensible. Where a public body is involved, however, this attitude consumes our tax pounds to ill effect. It is tragic how public bodies are traditionally defensive and that there is a culture which requires denial, obfuscation, and blame-shifting.
The Hillsborough inquest, at which I was privileged to represent many of the families, showed just how badly a defensive attitude can go wrong (see SJ160/20). Having been responsible for the deaths of 96 football supporters, the individuals and bodies involved closed ranks. In the hours after the disaster, a process of blaming the fans began: a strategy that endured for 27 years. The process continued unabated, despite a public apology from the then chief constable of South Yorkshire Police.
We should not forget that such an attitude causes anguish to the innocent families of those who died '“ and in the Hillsborough case, to the thousands of survivors who were blamed '“ but we should also appreciate the vast cost to the public purse.
The challenge we face as a society is how we encourage people in public bodies to own up to their mistakes and not falsely to defend others. This
has been considered by the government with regards to the National Health Service in the Mid-Staffs NHS Foundation Trust Public Inquiry 2013
(the Francis inquiry), which recommended a duty of candour.
This led to the enactment of the Health and Social Care Act 2008 (Regulated Activities) Regulations 2014. Regulation 20 states that hospital community and mental health trusts 'must act in an open and transparent way with relevant persons in relation to care and treatment provided to service users in carrying on a regulated activity.'
The regulation is worded with the utmost convolution but, essentially, it requires staff to tell patients when things go seriously wrong. Breach of the regulation is a criminal offence.
Reports of whether the new duty has led to change are mixed, with some saying the effect is negligible, while others claim it has led to improvement. No one has alleged it has done any harm.
As yet, no studies of the impact have been carried out. The impact will depend on how the regulation is applied but if it just lies on the statute book its impact will be little. If, however, it forms part of a culture that is successfully imparted through the organisation then impact is inevitable.
Public bodies also have a
duty of candour imposed by
the courts in judicial review proceedings (see R v Lancashire County Council ex p Huddleston (1986) 2 All E R 941).
The offence of misconduct in public office is also available '“ although the Law Commission recently published a consultation paper criticising the offence in its current form and suggesting various options for reform, one of which is to abolish it.
We have drafted a new law which we believe can help to reform the culture in large public organisations. The law seeks to do five things:
Make public authorities and public servants tell the truth and act with candour, particularly when interacting with court proceedings, inquiries, and investigations;
Make it a criminal offence for public servants to intentionally or recklessly fail to comply with that duty;
Make all public bodies adopt a code of ethics;
Empower public officials to expose and refuse to participate in cover-ups; and
Apply all these duties to private bodies carrying out public functions.
The full text of the law is available at www.hillsboroughlaw.co.uk and we would encourage people to examine, criticise, and, ideally, support it.
Theresa May has asked the former Bishop of Liverpool, Bishop James, who has been her adviser on Hillsborough throughout the inquest, to report to parliament on the families' experiences and our hope is that the bishop will recommend a law along the lines we propose.