Introduction of the Hillsborough Law: What would the Public Office (Accountability) Bill mean for public inquiries?

The Government has now laid before Parliament the Public Office (Accountability) Bill, well known informally as the Hillsborough law. This comes more than 36 years after the disaster at the Hillsborough football stadium on 15 April 1989 in which 97 people lost their lives. 

A version of the Public Office (Accountability) Bill was first drafted in 2017 by the families bereaved by the Hillsborough disaster. This came after decades of investigations in which the families struggled to establish what happened to their loved ones and why. The public bodies involved in the Hillsborough disaster were accused of a lack of cooperation with investigations, having a culture of institutional defensiveness and a deliberate obfuscation of the truth. 

What duties would the legislation introduce?

One of the central aims of the Public Office (Accountability) Bill is to alter the way in which inquiries and investigations into major incidents are approached and conducted. Here we consider what the introduction of the legislation could mean for public inquiries. 

Duty of candour and assistance 

The legislation would introduce a legal duty of candour and assistance requiring public authorities and public officials to at all times act with candour, transparency and frankness in their dealings with inquiries and investigations.

In the context of a public inquiry, the duty of candour and assistance would require a public authority to: 

• notify the person leading an inquiry whether they have grounds to believe that their acts are or may be relevant to the inquiry, or they otherwise have information likely to be relevant to the scope of the investigation;
• provide all such assistance they can reasonably give to assist an inquiry to meet its objectives and must: 
  • provide all relevant information likely to be relevant to the inquiry; 
  • draw the inquiry’s attention to any such information of particular significance;
  • correct any errors or omissions if discovered in any information previously provided; 
  • in the case of a public authority, provide a position statement; 
  • provide further information, clarification or comply with other requirements as requested, so far as reasonably practicable; 
• act expeditiously and without favour to their own, or another’s person’s position. 

The public official who is in charge of a public authority must take reasonable steps to ensure that the authority complies with the obligations above. 

Criminal Offence – The legislation would introduce a criminal offence if a person fails to comply with the duty of candour and assistance in respect of an inquiry or investigation which means that public officials could in certain circumstances face a fine and/ or up to two years imprisonment. 

What might the introduction of these duties mean for public inquiries? 

We consider that the introduction of these statutory duties could have the effect of: 

Greater cooperation – the requirement to proactively engage with an inquiry should lead to better engagement by public bodies and officials and greater cooperation with an Inquiry’s requests for information. 

Narrowing the scope of an investigation - ensuring that public bodies and officials set out their position at the outset of an inquiry should allow inquiry chairs to establish the accepted facts and issues and to narrow focus of the investigation at an early stage.

Reduce wait time for answers – the requirement to act expeditiously should support a prompt response to requests for evidence, reduce wait time for answers and shorten the overall length of an inquiry. 

Encouraging greater transparency – the requirement to provide full and complete disclosure of relevant material should have the effect of ensuring that a full and frank response is provided to the inquiry. 

Strengthen the effectiveness of non-statutory inquiries - the duties owed would apply in the context of both statutory and non-statutory public inquiries. Currently non-statutory inquiries do not have the same powers as statutory inquiries to compel witnesses to participate or provide evidence.  Under the new legislation, failure to comply with the duty of candour and assistance could be a criminal offence in all investigations. This could support greater cooperation in non-statutory inquiries.

Culture change and prevention of incidents - the introduction of the duty of candour reflects the broader aim of the legislation to bring about a culture change within public bodies to be more open, transparent and ultimately discourage the occurrence of major incidents in the first instance.

Overall, it is hoped that the legislation would help to increase the overall efficiency of an inquiry’s investigation. However, it is unclear the extent to which the duties would apply to those who are no longer in a public official role but who were at the time of the relevant incident. It also remains to be seen how the legislation might play out in public inquiries involving both public officials and private entities, who may owe different duties to the same inquiry. 

If you are involved in a public inquiry and would like to discuss what the Public Office (Accountability) Bill might mean for you, please contact Gemma Ludgate, Charlotte Whitaker, Rachael Davis or any other member in our Public Inquiry team.