Matthew Smith, Partner and Head of Public and Regulatory Law at Bates Wells, discusses a new law aimed at introducing a legal duty of candour on public bodies.

On 15 April 1989, during a football match between Liverpool and Nottingham Forest, crowd-crushing led to 97 deaths and 766 injuries. In the aftermath, South Yorkshire Police falsely blamed Liverpool fans’ behaviour and intoxication for the tragedy. Over the years, bereaved families fought a prolonged legal battle. Despite setbacks, including the 2021 collapse of criminal trials against former police officers and a lawyer charged with perverting justice, it was eventually established that police negligence played a major role. However, no one has been held accountable for the deaths, injuries, or subsequent police attempts to blame the victims.

Motivated by this enduring injustice, the families of those unlawfully killed campaigned for a ‘Hillsborough Law’, which the government now plans to introduce. Keir Starmer has vowed to enact legislation before April 2025, the next anniversary of the disaster.

Crucial gap in the legal system

It may seem surprising that a law is needed to ensure truthfulness, especially among public officials. Yet, while there are existing regulations to promote transparency and cooperation among government bodies, evidence shows they are often ineffective. Repeatedly, public officials respond with ‘institutional defensiveness’, as seen not only after Hillsborough but also in the Bloody Sunday, Infected Blood, and Grenfell Tower inquiries. Having worked on all those matters, I’m only too familiar with this tendency. Trying to secure justice for victims is difficult enough without those who know the facts striving to hide them.

Legal duty of candour

The Hillsborough Law in its original form (The Public Authority (Accountability) Bill) sought to create a legal duty on public authorities and officials to act at all times in the public interest and with transparency, candour and frankness. It also imposed a specific duty for them to act in that way when assisting in court proceedings, official inquiries and investigations, but also to do so with proper expedition and without favour to their own position; to make full disclosure of all relevant documents, material and facts; to set out their position in statements at the outset of the process; and to provide further information and clarification when ordered to do so by a court or inquiry.

Of course, duties of candour have long existed in other contexts, most notably perhaps in judicial review; but, for almost as long, there have been corresponding doubts about compliance with those duties, and the facility for effective enforcement in cases of breach. The Hillsborough Law answer to the enforceability issue is to back the duty of candour with a threat of criminal sanction.

Recent history, however, cautions against a simple assumption that this threat will drive compliance. The NHS provides perhaps the starkest example of this when, despite the possibility of criminal prosecution for failure to discharge the statutory duty of candour applicable to health and care professionals, in 2023 the Parliamentary and Health Service Ombudsman recorded serious concerns about non-compliance, lack of transparency and defensiveness by NHS Trusts.

Public funding

The new law will also ensure victims of disasters or state-related deaths are entitled to parity of legal representation during inquests and inquiries. Just as public money is currently used to support government and public authority lawyers, bereaved families will be entitled to public funding to cover their legal costs too.

Practical considerations

The decision to implement the Hillsborough Law is significant but, the practicalities remain to be seen as I can’t imagine any material departure from the key elements described above.

First, there is potential for conflict with the right to stay silent and not to self-incriminate, guaranteed by Article 6 of the ECHR. The Hillsborough Law took that risk into account, providing that there would be no offence of failure to comply with the duty of candour when the individual concerned asserted the privilege against self-incrimination. The new law will surely do the same.

Secondly, I anticipate that the new regime will extend beyond the public sector to include private entities and individuals who have a contractual relationship with a public authority; and in any event, I would expect public bodies to introduce contractual obligations requiring their private sector partners to adopt a corresponding duty of candour.

Thirdly, the new law seems certain to increase the burden on already stretched public services – especially during an inquiry, inquest or investigation. The requirement, for example, to provide early position statements will demand a much clearer, and comprehensive, understanding of a public body’s case at the outset of the matter than at present which will impact tasks like policing, housing homeless people, and provision of social care. Public bodies will likely want in the future to identify and ring-fence internal teams to meet the requirements of the Hillsborough Law, and perhaps consider buying in external support.

Public body transparency

The decision to implement the Hillsborough Law is welcome. We must wait and see, though, how it works on the ground and whether it will stand as a fitting memorial to the victims of the disaster and the bereaved.