Hillsborough Law Demands Culture of Candour

In a landmark move shaped by decades of campaigning by the families of the 97 people unlawfully killed at the Hillsborough Football Disaster in 1989, the government has introduced the Public Office (Accountability) Law, better known as Hillsborough Law,  to Parliament on Tuesday 16 September. It is not yet enacted and will need to go through the various stages of scrutiny and voting in both houses of parliament before it becomes law. However, if as expected it remains largely unchanged, it will usher in the need for something of a culture change for emanations of state by introducing a statutory duty of candour, requiring state agencies and public officials to tell the truth and fully cooperate with investigations. For the first time, it will also guarantee that all bereaved families have access to non-means tested legal aid at all inquests where the state is involved ensuring "parity of arms" and a fair process. This funding covers the costs of legal representation from the outset, unlike the previous limited "Legal Help" scheme.  This is therefore a major upheaval requiring not only policy changes for state institutions which of course include local authorities, but also a complete culture change away from any protectionist and defensive attitudes and interventions, especially when there is a major incident  to be investigated.

It is this pledge to bring forward a duty of candour on public bodies that has attracted most attention. It is not only the Hillsborough tragedy that has led to this Act but also more recent public concern of potential cover ups involving the Grenfell Tower fire , the infected  blood scandal and most recently the Post Office Horizon affair. Justice secretary David Lammy said: ‘The changes we’re making will ensure truth and justice are never concealed again and brave families never again left fighting endlessly for the truth – and anyone caught trying to do so will face the full force of the law.’

Let us consider in more detail what is actually in the bill and what this is likely to mean for our local authority clients in particular.

There are three key obligations that will directly impact local authority operations:

1. The statutory duty of candour requires local authorities to provide information with complete honesty during investigations, inquiries, and inquests. This isn't just limited to major incidents; it applies across all local authority activities from housing decisions to social services interventions.

2. A local authority must establish professional duties of candour for all staff, embedded within comprehensive codes of ethics based on “the Nolan Principles”. ( Selflessness, Integrity, Objectivity, Accountability, Openness, Honesty, and Leadership). These must carry legal weight with disciplinary consequences right up to gross misconduct for non-compliance.

3. A new criminal offence targets officials who mislead the public, carrying potential prison sentences for those who intentionally provide false information or act recklessly when making public statements. So this is serious stuff.

A wide range of local authority operations will be affected such as:

• Housing services including management of social housing and response to safety concerns;

• Social services decisions affecting vulnerable children and adults will be subject to new transparency requirements;

• Environmental health and public safety incidents will require immediate, honest disclosure rather than defensive responses;

• Planning decisions will face additional scrutiny where public safety is involved;

• Emergency response coordination during major incidents will require unprecedented levels of candour and cooperation with investigating authorities.

• Investigations and preparation of inquests which involve the local authority will need to be thorough and open. Families are now more likely to be legally represented.

It is not known exactly when the bill will become law but local authorities should not wait until then to plan for its introduction.  They should start to make the necessary changes as soon as possible to ensure they are ready to comply. Many current policies focus on preventing wrongdoing rather than promoting positive transparency. An immediate review of existing codes of conduct and ethics policies against the new legal standards would be an excellent first step. Senior leadership teams need comprehensive training on the new obligations, particularly understanding that the duty of candour applies personally to individual officials.

Authorities need to reassess their approach to investigations and complaints, ensuring systems support, rather than hinder, truth-finding. This includes reviewing how information is gathered, stored, and disclosed during internal investigations.

Staff at all levels must understand that protecting the local authority’s  reputation cannot come at the expense of honesty and transparency. This message will have to come from the top and will involve investment  in training and a commitment from leadership to accept the new culture.

Since many more bereaved families are likely to be legally represented at inquests due to the expansion of non-means tested legal aid, it will be even more important for local authorities to ensure they are also legally represented by lawyers experienced in the coroners court. This  is also likely to apply to persons called to give evidence before national enquiries such as the forthcoming enquiry into Child Sexual Exploitation. (CSE).

Forbes Comment:

Hillsborough Law represents a fundamental change to public accountability. Those organisations  that act now to embed transparency and candour into their operations will be ahead of the game.  The consequences of not acting could result in reputational damage and even to personal criminal liability. It is widely accepted that those who tried to cover up the major mistakes that led to 97 deaths at a football match somewhat unfairly escaped accountability.  Had this new legislation already been in place the outcomes for those responsible would almost certainly have been prison sentences.

A culture change will be required both for local authorities and those who advise them. It would be wise to begin that process now.