(Another) legal duty of candour on public servants and authorities?

According to media reports tomorrow's Kings Speech will include legislation following through on Labour’s manifesto promise of a ‘Hillsborough Law’ which will place a legal duty of candour on public servants and authorities.  This idea originated from the Review of the Hillsborough disaster conducted by Bishop James Jones in 2017, but it is all too easy to overlook the implications of this from just four lines of a manifesto.  

The reasoning behind it is that an enforceable duty of candour on public servants will enhance official investigations into alleged state involvement in deaths, where public authorities may have been responsible but may not be forthcoming about their involvement.  It is argued it will also be relevant to inquests and inquiries which are supposed to be inquisitorial, seeking to establish facts and learn lessons and where openness and transparency is crucial.

We know there can be individual and institutional defensiveness in the face of public scrutiny.  Theresa May in her book “The Abuse of Power” recalls that the original inquests into the Hillsborough tragedy had recorded a verdict of accidental death, and that it was only as a result of the Hillsborough Panel being established that it was found that witness statements had been altered to remove damaging comments about South Yorkshire Police. She notes that obstacle after obstacle was put in the way of families finding the truth and that those with power had abused it to peddle lies – the result of a defensive culture by the public sector generally, which is reluctant to accept mistakes.  Similarly, in the Daniel Morgan case, the Independent Panel set up by Theresa May found that the Metropolitan Police had concealed from the family and the public the role of corrupt officers for the failures of the original investigation.  That Panel recommended a statutory duty of candour on all law enforcement agencies. 

But would a duty of candour have made a difference in these and other cases?  There are already a multitude of obligations on public authorities to be honest and open, for example: a duty to give evidence and provide documents in the Inquiries Act 2005 which contains offences of altering evidence and preventing evidence being given; a duty to make candid disclosure of relevant facts and the reasons for decisions in JR; a duty on the police to cooperate with investigations and inquiries; a statutory duty of candour on the NHS to act openly and transparently; a duty on civil servants under the Civil Service Code to handle information as openly as possible and uphold the administration of justice; a duty on Ministers under the Ministerial Code to protect the integrity of public life and to give accurate and truthful information to Parliament; and a duty of candour provided for in Part 2 of the Victims and Prisoners Act 2024 in the case of public servants discharging their duties in relation to a major incident.

One of the problems with all these duties is that the sanctions are often not effective.  For example, the police and civil servants are mainly subject to internal disciplinary action; a failure to be candid in JR is not an offence; breaches of the Ministerial Code simply result in a public apology or removal of a ministerial salary for a period; and a health Service Body has a defence of acting diligently and with reasonable care. 

Yes, there is the general criminal law but this tends to be inadequate or have too high a threshold.  For example, the Law Commission have said that the archaic offence of misconduct in public office lacks clarity and precision, a charge of perverting the course of justice is only for serious cases of interference with the administration of justice, and perjury is mainly confined to breaches of lawfully sworn testimony in judicial proceedings.

The Joint Committee of Human Rights’ Third Report in May 2024 examined all these issues and concluded it is far from clear that current duties of candour are operating to ensure openness and transparency. They recommended a more focused criminal sanction, effectively enforced and supported by culture change within the public sector. A possible template for this is the Private Members Bill introduced by Andy Burnham in 2017.  If enacted, it would have imposed a duty on public authorities and public servants to act in the public interest with transparency, candour and openness, to assist inquiries and investigations, and make full disclosure of relevant documents, materials and facts. There would have been caveats relating to data protection law, self-incrimination and national security.  But crucially, there would have been criminal sanctions for intentional or reckless failure to discharge these duties, including misleading the public or media. 

In circumstances where there has been so much recent, wholly justified, mistrust of politicians and public officials, it is not surprising the new Government are embracing greater openness.  The challenge will be to ensure that any new Hillsborough Law adds something meaningful to the complicated tapestry of existing obligations, while allowing for appropriate exceptions if the public interest requires that. Depending on how it is enacted and implemented, it may well lead to legal challenges for failure to comply with the new duty and if so, this might help to instil a culture of openness.  The new Hillsborough Law would then have achieved its purpose.