What is a duty of candour? And why should introducing one be so expensive?
Those thoughts are prompted by a news report earlier this week that the government’s proposed ‘Hillsborough law’ has been held up by the Treasury. That has been denied, and there is likely more to the story than meets the eye. But what is beyond dispute is that Sir Keir Starmer promised legislation when he spoke at the Labour party conferences in 2022 and 2024.
There were also pledges last year in his party’s election manifesto and the King’s speech. Indeed, the prime minister undertook to introduce a bill before 15 April this year, the anniversary of the disaster at the Hillsborough football stadium in 1989 that killed 97 Liverpool supporters. But nothing has yet been published.
Why the delay? Lord Ponsonby, the justice minister, told peers on 22 April that the government was committed to bringing in legislation ‘at pace’ but more time was needed. The prime minister added on 2 July that he just wanted to take the time to get it right.
What, though, would ‘it’ involve? There will be ‘a legal duty of candour for public servants – and criminal sanctions for those who refuse to comply’, Starmer promised MPs. He denied suggestions that the commitment had been watered down.
But according to Ian Byrne (pictured), who attended the fateful match in 1989 as a teenager and who now represents a Liverpool constituency as a Labour MP, that is exactly what the government is seeking to do.
In March, he said, a version of the government’s planned bill was shown to Pete Weatherby KC and solicitor Elkan Abrahamson. They had drafted a bill for Andy Burnham MP to table in 2017.
The two lawyers said unequivocally that the government bill ‘fell far short’, Byrne told MPs on 2 July, ‘because it had no legally binding duty of candour, no provision for equal legal funding during inquests and inquiries, and loopholes allowing public bodies to avoid disclosure’.
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Campaigners were outraged, he continued, and the bill was shelved. ‘But we understand that a new replacement bill, still without the key provisions of the Hillsborough law, could be imminent,’ Byrne said. ‘This time, it will not be shared with the families or campaigners in advance. What does that say about the lessons learned?’
Byrne retabled the 2017 Public Authorities (Accountability) Bill earlier this month. Though it has no chance of becoming law, it will provide a useful point of comparison with the government’s legislation – whenever that appears.
The backbencher’s bill says that ‘public authorities and public servants and officials have a duty at all times to act within their powers in the public interest, and with transparency, candour and frankness’. They also have a duty ‘to assist court proceedings, official inquiries and investigations relating to their own activities, or where their acts or omissions are or may be relevant’.
These duties would be enforceable by the courts but ‘subject to existing laws relating to privacy, data protection and national security’.
A chief executive of a public authority who intentionally or recklessly fails to assist an investigation would face up to two years’ imprisonment. So would a public servant or official who ‘intentionally or recklessly misleads the general public or media’. But defendants could rely on the privilege against self-incrimination.
You can see why this might require further thought. According to the bill, ‘public servants and officials’ means ‘all those who work for, or hold office under, a public authority’. And ‘public authority’ includes any ‘organisation, institution or agency engaged in functions of a public nature’.
Does that include MPs? Ministers? Judges? All could be accused of misleading the public or media from time to time, if only by withholding information that, perfectly properly, they cannot disclose. How candid would the law require them to be?
And then, of course, there is the question of money. Under the bill, ‘interested persons’ at inquests and ‘core participants’ at public inquiries would be entitled to publicly funded legal advice and representation if conditions are met.
Detailed provisions in the bill are intended to ensure that funding for the bereaved and injured is ‘the same or in proportion to provision made for the relevant public authority’. That is said by ministers to cost ‘roughly £1bn a year’. Unsurprisingly, the government has given no public commitment to public funding on this scale.
Parliament’s joint committee on human rights reported last year that the existing NHS duty of candour, backed by potential criminal sanctions, was not being met. Fear of sanctions could create a perverse incentive to cover up, the committee observed.
It would be wonderful if people began admitting their failings because parliament had told them to or because a lawyer had asked them the right questions. Sadly, though, life’s not like that.
joshua@rozenberg.net
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