‘Hillsborough Law’ to instil duty of candour on UK public bodies in investigations

The Public Authority (Accountability) Bill was published as part of the Reverend James Jones’ report in 2017 into the experience of the Hillsborough families.The draft legislation is set to introduce a legal duty of candour on public officials and public bodies, and make misleading or obstructing investigations a criminal offence.

Katherine Metcalfe, health and safety expert at Pinsent Masons, said that the ‘Hillsborough Law’ will introduce a wide-ranging duty on public authorities, public services and officials to act at all times in the public interest with transparency, candour and frankness.

“The law will have a significant impact on how public authorities approach police and regulatory investigations, inquests and public inquiries. They will be obliged to make full disclosure of relevant documents, materials and factors, to set out their position at the outset of the proceedings, inquiry or investigation and to act without favour to their own position. This will require a shift in mindset towards making early and full disclosure of failings, or potential failings,” she said.

Public authorities, public servants and officials who fail to discharge their duty to assist these proceedings, inquires and investigations could face up to two years of imprisonment or a fine, under the Bill as currently drafted.

The impact of this new law is likely to be felt far beyond the public sector. The Bill also intends to extend these duties to private entities and individuals who are contractors of a public authority or those owe a health and safety responsibility to the public or a section of it, such as organisers of sporting, leisure, and entertainment events, and providers of public transport systems, utilities and retail facilities.

“Our expectation is that public authorities will also introduce contractual obligations to adopt the same duty of candour for all private sector organisations providing goods and services to public authorities. This will become an important factor driving the legal strategy in the aftermath of serious incidents,” said Metcalfe.

However, several important details still need to be worked through as the Bill goes through the legislative process, according to David Thorneloe, public law and legislation expert at Pinsent Masons.

“There are some complex issues around how the new legislation would fit with existing legal rights and obligations, and how the new duty should interact with them,” he said.

One example, he pointed out, is that public inquiries already have extensive powers to require cooperation from witnesses. But these are qualified by Article 6 of the European Convention on Human Rights (ECHR), which guarantees a witness’s right to freedom from self-incrimination.

“These details will need to be worked through to produce the new legislation. The government can be expected to review and revise substantially the draft Bill published in the inquiry report, as it usually does when it agrees to take forward new legislation proposed by others. The end result is likely to be a qualified improvement of the transparency of public bodies, rather than the sweeping absolute duties suggested by some,” said Thorneloe.