The Hillsborough Law: Candour in inquests and inquiries

The Public Office (Accountability) Bill (along with its explanatory notes and multiple impact statements) - otherwise known as the Hillsborough Law – was introduced to Parliament on 16 September and places a new legal duty on public servants to act with candour, transparency and frankness, and fully assist with inquiries, inquests and other investigations into the state where the conduct of public authorities may be in issue.

This Bill is the culmination of decades long campaigning by bereaved families coming more than 36 years after the tragedy at the Hillsborough football stadium in which 97 people died. It also follows other public inquiries as seen in the Post Office Horizon and the Infected Blood scandals.

We look at the Bill’s implications for the health and care sector.

What does the Bill include?

• A new legal duty of candour
• Criminal sanctions for non-compliance
• Funding for bereaved families at inquests where the state is represented

Who will the Bill apply to?

The Bill will apply to public authorities and public officials who are defined as:

A ‘public authority’ means ministers and government departments, the armed forces, police forces, local authorities, NHS bodies, education providers, and any other body with functions of a public nature.

A ‘public official’ refers to an individual who is employed by a public authority, holds a position within a public authority, or holds a relevant public office.

It will also apply to service providers who had a contract with a public authority and to bodies with a health and safety responsibility in connection with the incident.

Duty of candour and assistance

The new duty mandates that a public authority or official must at all times act with candour, transparency and frankness when interacting with inquiries and investigations. It also imposes a proactive duty on public authorities and officials to inform the person leading an inquiry or investigation whenever they have reason to believe their actions may be relevant, or if they hold information likely to assist the process.

Duty to disclose information

The Bill also creates new duties to proactively inform an inquiry or investigation of relevant information to help meet its objectives – and must:

• Provide information that is likely to be relevant
• Draw attention to information that is likely to be of particular significance
• Correct errors or omissions in information previously provided
• Public authorities to provide a position statement
• Provide further information or clarification or comply with other requirements where requested by the person leading the inquiry or investigation

In complying with the new disclosure obligations authorities or officials must act ‘expeditiously’ and ‘without favour to their own, or another person’s, position’.

The person leading the inquiry or investigation can also require a public authority or public official to provide information by oral evidence or written evidence.

Criminal sanctions

The Bill provides that failure to act with candour, promptly and proactively, with full disclosure of evidence would give rise to criminal sanctions, including a two-year custodial sentence or fine.

There is a separate criminal offence where a public authority or official acts with the intention of misleading the public or are reckless as to doing so and they know, or ought to know, that their act is seriously improper.

Expanding legal aid for bereaved families

Bereaved families will benefit from legal aid, providing non means tested legal help and representation at an inquest where a public authority is an interested person. There is also a new duty on public authorities to ensure any spend on legal advice and representation at an inquest is necessary and proportionate. The duty will also guide the conduct of lawyers at the coroner court ensuring families are always treated with sensitivity and respect.

Shifting to a proactive approach

The newly proposed legal duties mark a significant shift in how public authorities and officials must respond to statutory inquiries, inquests, and ministerial investigations. Rather than waiting to be asked, they will be required to adopt a proactive approach - voluntarily disclosing relevant information and actively assisting in the investigative process.

For healthcare organisations, this means moving beyond reactive compliance and shifting to a proactive process. While many in the sector are already familiar with what is required during an inquest or investigation, the introduction of the Hillsborough Law raises the stakes considerably. Non-compliance will no longer be a matter of professional criticism alone - it could lead to criminal sanctions.

A new inquest approach

The new duties will require healthcare providers to actively engage with coroners early in the process of document disclosure, including a responsibility to correct any errors or omissions in the information they provide. A key development is the introduction of a requirement to submit a position statement during an inquest which represents a notable shift in policy given the traditionally non-adversarial nature of coroner proceedings. This obligation may be waived by the person leading the inquiry or investigation, but only where providing a statement would undermine the efficient and effective conduct of the inquiry.

Next steps

The Bill has only reached its second reading in the House of Commons, with the date yet to be confirmed. It will be interesting to see how the Bill progresses and if and when it becomes law – although the ‘Hillsborough Law’ was in the Labour Party’s manifesto and the King’s Speech and it is likely that the current government will be invested in taking it forward.

Comment

The Bill imposes stricter duties on NHS organisations with the risk of criminal sanctions if these are breached. While there is already a power in the public inquiries and coroner’s investigations to call for documents and evidence, the Bill goes further than that, imposing positive duties to assist such inquires and investigations.

The introduction of the duty of candour reflects the broader aims of the Bill to bring about culture change to be more open, transparent and avoid a repeat of patient safety incidents.

In healthcare, the NHS has had its own statutory duty of candour requiring openness and transparency with patients when things go wrong. But multiple reviews have found variability in its application reflecting that candour depends not just on the statutory context but on culture, inconsistency in understanding and applying the duty of candour and training issues (around the lack of it and the need for it). It will therefore be interesting to see how successful this legislation will be in achieving its aim.

We will keep readers updated as the Bill progresses through Parliament.