The proposed Hillsborough law

The term ‘Hillsborough law’ is a shorthand for promised legislation aimed at (1) improving transparency and accountability in public inquiries/inquests and (2) imposing a statutory duty of candour on public authorities. Despite a commitment made by the Prime Minister that draft legislation would be introduced before the 36th anniversary of the Hillsborough tragedy, no bill has been forthcoming. An Early Day motion has been issued calling for these legislative proposals to be expedited.

What could the duty of candour look like?

There have been discussions about imposing an obligation on public bodies, public servants and officials to (1) act in the public interest and with transparency, candour and frankness, and (2) aid court proceedings, official inquiries and investigations. The proposed duty makes sense in the context of inquisitorial proceedings (inquests and inquiries), but is potentially problematic in the context of adversarial proceedings. Where future litigation is anticipated, there is possible tension for those who may be subject to or a party to those proceedings.

Duties of candour are not new. For example, there are statutory duties on healthcare bodies for notifiable safety incidents and professional duties on individual health and care professionals. The split between legal and professional duties can cause misunderstandings for stakeholders. Confusion may arise where professional duties have broader or different triggers than their legal equivalent or because the duties are being imposed on different entities. It may be due to different harm triggers even within a category of duty. Confusion may also arise because different regulatory bodies are engaged across these different types of duty. Even if a healthcare professional can navigate this labyrinth of regulation, members of the public may be confused and surprised by the differences that exist.

Do we need further legislation? 

Some argue that legislative and judicial action is required to prevent a lack of candour by public bodies and officials. Others contend that where legislative action has occurred it has not changed behaviours or improved candour to the degree that was expected by parliamentarians. Indeed, what is required is a change to organisational culture, not the imposition of additional or parallel duties. Some would go further and argue that we go too far by imposing public law duties on individual public servants. It is noteworthy that the final report from the Infected Blood Inquiry included a recommendation that the statutory duty of candour should cover individuals in leadership positions in NHS organisations. This proposal recognises that not everyone in a leadership position is subject to individual accountability for candour within their organisation. The case for imposing legal duties on public officials may be weaker where those same individuals are subject to professional codes or duties that require candour.

How does a duty of candour link to apologies?

According to the CQC, ‘(a) crucial part of the duty of candour is the apology’. The government’s recent proposal to amend Section 2 of the Compensation Act 2006 ties directly into any future bill imposing a legal duty of candour on both public bodies and public officials. However, it is important to emphasise that the core focus of the apologies review was the impact of apologies on the civil claims process, rather than as a mechanism for imposing criminal duties and prospective sanctions on individual public officials for a failure to be candid and transparent. The proposed Hillsborough law reforms may have the same core aims, namely to improve openness and transparency, but go about the objective in different ways. The apology route offers a carrot, whereas the candour route (if backed up by sanctions) would be more about the stick. 

The engagement of human rights

Articles 2 and 3 of the European Convention on Human Rights (ECHR) place obligations on a state to carry out an effective official investigation where there is reason to believe that an individual has sustained life-threatening injuries in suspicious circumstances or suffered inhuman/degrading treatment. Arguably a statutory duty of candour might improve these investigations, whether undertaken by an inquest or formal inquiry, and encourage public authorities/officials to cooperate and be forthcoming. However, a duty of candour may also give rise to concerns about the possible infringement of the right to a fair trial (under common law or Article 6 ECHR), as it could undermine the right against self-incrimination. Accordingly, there is a possible tension at play between the rights of those affected by the acts/omissions of public bodies/officials and the rights of the individual officials involved. The degree to which a public official is involved in the index event may influence the balancing of these competing rights. As a result, we may want to be cautious about imposing a one size fits all solution. We should also recognise that imposing duties of candour on individuals requires the support provided to be fair and effective in regard to the duty holder. There is little point requiring an individual to be candid, transparent and forthcoming, without imposing an effective duty on their organisation to support that candour and to provide relevant training to all the staff concerned.

How might the proposed legislation work?

It has been suggested that the legislation should create new criminal offences, including an offence in relation to instances where the chief executive of a public authority intentionally or recklessly fails to discharge the duty to assist proceedings, inquiries or investigations. It could also be made a criminal offence to mislead the public/media and to mislead proceedings, inquiries or investigations in relation to which the duty of candour applies. The contentious area is whether to impose criminal sanctions on individual public officials. These individuals may be prevented or under pressure not to cooperate or to offer erroneous or potentially misleading accounts. Their jobs and livelihoods may be at risk. Imposing blunt criminal sanctions on these individuals may not always be apposite or foster the kind of organisational openness and integrity that Sir Robert Francis KC probably had mind when he submitted his report as part of the Mid-Staffordshire NHS Foundation Trust Inquiry. Whilst there would probably be exclusions for those subject to active criminal proceedings, there is a continuing risk of self-incrimination.

Impact on the right against self-incrimination?

Much will depend on if and how any future bill provides protection for the right or privilege against self-incrimination. Even the inclusion of a ‘reasonable assertion’ of privilege requirement would weaken the well-established common law right against self-incrimination. Would reasonableness be judged with the benefit of hindsight? It is here that the proposed legislation has the greatest capacity to undermine the rights of public officials. Of course, these officials remain subject to the general criminal law governing perjury/fraudulent statements and the Nolan obligations under the Civil Service Code. They also have protection under the whistleblower provisions. 

Conclusion

We should not forget that many public officials operate in time- and resource-poor environments. Nor must we forget the importance of public servants in the quest for greater openness and transparency when things go wrong. Ultimately, parliament must decide whether the stick is better directed against public bodies rather than individual officials.

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