Analysis of Bill
Executive Summary
The Government has introduced the Public Office (Accountability) Bill, commonly known as the "Hillsborough Law", representing the most significant reform to public accountability and transparency in decades. This legislation directly addresses the systemic failures identified following major public disasters including Hillsborough, Grenfell Tower, the infected blood scandal, and the Horizon scandal.
The Bill introduces three fundamental pillars of reform:
- Duty of Candour and Assistance
- Parity of Arms
- New criminal offences for misleading the public.
These measures will have far-reaching implications for public authorities, their officials, and private organisations delivering public functions.
The Hillsborough Law: A New Era of Public Accountability
The Government's introduction of the Public Office (Accountability) Bill, commonly known as the "Hillsborough Law", marks a defining moment in the relationship between the state and the general public. This legislation represents the most comprehensive reform of public accountability in decades, fundamentally altering how public authorities operate and respond to crises. Born from the devastating failures exposed at Hillsborough, and reinforced by subsequent tragedies at Grenfell Tower and scandals involving infected blood and the Horizon system, the Bill creates a legal framework where transparency is not merely aspirational but mandatory.
The Foundation of Change: Duty of Candour
At the heart of this transformation lies a revolutionary concept for British public administration: a statutory duty of candour backed by criminal sanctions. The provision emerges directly from the shocking revelations of the Hillsborough Independent Panel, which found that over 100 police statements had been deliberately amended to remove or alter comments unfavourable to South Yorkshire Police. Lord Justice Taylor's condemnation of senior officers' "defensive and evasive" evidence serves as a stark reminder of what happens when institutional self-preservation takes precedence over truth.
The new duty applies comprehensively across statutory inquiries, coroner's investigations, and for the first time, non-statutory inquiries. This extension to non-statutory processes is particularly significant, as it grants inquiry chairs formal powers they have never possessed before. The legislation recognises that truth-seeking cannot be confined to formal legal proceedings alone – it must permeate every aspect of how public authorities engage with investigations into their conduct.
The scope extends beyond traditional public bodies to encompass private organisations delivering public functions and those with relevant health and safety responsibilities. This inclusion reflects the modern reality of public service delivery, where the boundaries between public and private sector provision have become increasingly blurred. The Horizon scandal, where the Post Office's pursuit of prosecutions despite knowing of system flaws, exemplifies why this broader application is essential.
Perhaps most significantly, the duty is underpinned by criminal sanctions including imprisonment. This represents a fundamental shift from the traditional British approach of administrative remedies and reputational consequences to one where individual officials face personal criminal liability for failures to cooperate with investigations. The message is unambiguous: protecting institutional reputation at the expense of truth is no longer merely unethical – it is criminal.
Cultural Transformation Through Professional Duties
At the heart of this transformation lies a revolutionary concept for British public administration: a statutory duty of candour backed by criminal sanctions. The provision emerges directly from the shocking revelations of the Hillsborough Independent Panel, which found that over 100 police statements had been deliberately amended to remove or alter comments unfavourable to South Yorkshire Police. Lord Justice Taylor's condemnation of senior officers' "defensive and evasive" evidence serves as a stark reminder of what happens when institutional self-preservation takes precedence over truth.
The new duty applies comprehensively across statutory inquiries, coroner's investigations, and for the first time, non-statutory inquiries. This extension to non-statutory processes is particularly significant, as it grants inquiry chairs formal powers they have never possessed before. The legislation recognises that truth-seeking cannot be confined to formal legal proceedings alone – it must permeate every aspect of how public authorities engage with investigations into their conduct.
The scope extends beyond traditional public bodies to encompass private organisations delivering public functions and those with relevant health and safety responsibilities. This inclusion reflects the modern reality of public service delivery, where the boundaries between public and private sector provision have become increasingly blurred. The Horizon scandal, where the Post Office's pursuit of prosecutions despite knowing of system flaws, exemplifies why this broader application is essential.
Perhaps most significantly, the duty is underpinned by criminal sanctions including imprisonment. This represents a fundamental shift from the traditional British approach of administrative remedies and reputational consequences to one where individual officials face personal criminal liability for failures to cooperate with investigations. The message is unambiguous: protecting institutional reputation at the expense of truth is no longer merely unethical – it is criminal.
Confronting Deliberate Deception
The creation of a new criminal offence for misleading the public addresses one of the most egregious aspects of the Hillsborough aftermath: the deliberate dissemination of false information about the disaster's causes. When police immediately blamed Liverpool fans for breaking into the stadium, they established a false narrative that persisted for decades. This initial lie became the foundation for a 25-year fight for truth, demonstrating how early deception can poison entire investigation processes.
The offence is carefully constructed to target only the most serious instances of misconduct. It requires intention to mislead or recklessness as to that possibility, combined with knowledge that the act is seriously improper. The legislation establishes specific criteria that must be satisfied: significant or repeated dishonesty on matters of public concern, causing or potentially causing harm, and significant departure from proper public functions.
This formulation strikes a balance between accountability and operational effectiveness. It does not criminalise honest mistakes or differences of interpretation, but it creates severe consequences for deliberate attempts to mislead the public during crises. For communications teams and senior officials, this represents a fundamental shift in how they must approach public statements during investigations.
As previously recommended by the Law Commission, the common law offence of Misconduct in a Public Office (MiPO) is to be replaced by two new offences: Seriously improper acts and Breach of duty to prevent death or serious injury. This step is intended to bring certainty and clarity to who is caught by the offences and the type of conduct caught, which would be welcomed, without significantly changing the scope of the offence. Public bodies and officials may welcome the requirement for the Director of Public Prosecutions to consent to any prosecution of these offences; a safeguard introduced to prevent vexatious private prosecutions.
The Bill does not change the availability of privilege against self-incrimination, which entitles a person not to answer questions where to do so might incriminate them of an offence. Indeed, where answers may open individuals up to the new offences introduced by the Bill, individuals could become more, rather than less, reluctant to engage with proceedings in a non-adversarial way.
Levelling the Playing Field: Parity of Arms
The expansion of legal aid represents perhaps the most practically significant change for bereaved families and affected individuals. The stark inequality of the original Hillsborough inquests, where families received no funding while senior police officers were represented by five separate legal teams, epitomised the systemic disadvantage faced by those seeking truth about state failures.
The removal of means testing for bereaved families where public authorities are interested persons eliminates the financial barriers that have traditionally prevented effective participation in inquests. More importantly, the automatic eligibility removes the bureaucratic obstacles that have often proved as insurmountable as financial ones. The current Exceptional Case Funding process, with its complex application procedures and uncertain outcomes, has too often compounded the trauma of bereavement with additional stress and delay.
However, the legislation carefully balances enhanced representation rights with the need to maintain the inquisitorial character of proceedings. The limitation of one legal aid funded advocate per family recognises that inquests must remain investigative processes rather than adversarial contests. This provision acknowledges legitimate concerns that unlimited representation could transform proceedings into courtroom battles rather than truth-seeking exercises.
Reshaping State Conduct at Inquests and Inquiries
The Bill's provisions on public authority conduct represent a comprehensive response to decades of defensive legal strategies that prioritised institutional protection over truth-finding.
The requirement that legal representation must be necessary and proportionate, considered in light of bereaved families' comparative position, fundamentally alters the calculation public authorities must make when engaging legal teams.
The introduction of statutory guidance will provide a framework for consistent standards across different types of proceedings. This guidance will build upon existing non-statutory principles that have achieved some success in government departments, extending these standards across the entire public sector. The requirement that public authorities ensure their legal representatives conduct themselves consistently with this guidance creates organisational responsibility for advocate behaviour.
The new powers for coroners and inquiry chairs to raise concerns about legal representative conduct provide enforcement mechanisms that have been notably absent from previous arrangements. This formal route for addressing problematic behaviour recognises that cultural change requires both clear standards and effective enforcement.
Implications Across Sectors
The duty of candour is already a well-established public law principle across public inquiries and judicial review proceedings, as well as within certain sectors. Previously Chairs of inquiries and those charged with conducting investigations, including Coroners, would expect public bodies to engage fully and openly with the relevant proceedings without the need to exercise their statutory powers. The teeth to this new legislation is the introduction of the new offences, albeit how the duty is to be enforced whilst proceeding are ongoing remains to be seen. The legislation's impact will vary significantly across different sectors of public administration.
Healthcare bodies, already subject to existing candour obligations through NHS frameworks, will find these enhanced and extended. The integration of new requirements with existing clinical governance structures presents both opportunities for improved patient safety and challenges in managing overlapping obligations.
Police forces face perhaps the most direct reckoning with the legislation's origins. The failures at Hillsborough have cast a long shadow over police accountability, and the new framework will require fundamental changes in how forces approach major incident investigations and public communications. The emphasis on immediate disclosure obligations during investigations represents a complete reversal of traditional approaches that prioritised controlling information flow.
Local authorities confront particular challenges given the breadth of their public functions. From housing and social services to public safety and emergency response, councils will find few areas of their operations untouched by the new transparency requirements. The integration of candour obligations with existing complaint procedures and regulatory frameworks will require careful coordination.
For private sector organisations delivering public functions, the legislation creates new categories of legal obligation that may not align comfortably with commercial practices. This will capture Registered Providers of Social Housing.
Health and safety responsibilities that trigger the candour duty may conflict with commercial confidentiality concerns or competitive positioning. Contract terms and insurance arrangements may require significant revision to address these new liabilities.
The Challenge of Implementation and Enforcement
The success of the Hillsborough Law will ultimately depend not on its legal architecture but on the cultural transformation it can achieve within public institutions. Technical compliance with new procedures will be insufficient if the underlying attitudes that produced the original failures remain unchanged. The legislation creates legal obligations, but it cannot directly mandate the shift from defensive to collaborative mindsets that genuine transparency requires. It also remains to be seen how the legal duty of candour will be enforced and what impact issues around non-compliance may have on the running of proceedings.
Training programmes, policy revisions, and compliance systems are necessary but not sufficient conditions for success. The real test will come during the first major incident investigation conducted under the new framework. Will public authorities genuinely embrace their candour obligations, or will they seek to comply with the letter while evading the spirit of the legislation?
The criminal sanctions for individual officials represent the strongest incentive for behavioural change, but they also create risks of defensive over-compliance that could paradoxically hinder truth-finding. If officials become so concerned about personal liability that they retreat into legalistic formalities or exercise their privilege against self-incrimination, the legislation's objectives could be undermined.
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This advisory is based on the current provisions of the Public Office (Accountability) Bill and associated guidance. Clients should seek specific legal advice on how these provisions may apply to their particular circumstances.