The new duty of candour

The new Labour Government is committed to introducing a new ‘Hillsborough Law’ to “help rebuild trust and foster respect” by the introduction of a statutory duty of candour on public servants and authorities, as referenced in the Labour Manifesto and the Kings Speech. Although we await the Bill, this article explores what the new legislation could mean for local authorities and council officers.

A brief history 

The idea of a Hillsborough Law, which in its original form was a piece of draft legislation entitled ‘The Public Authority Accountability Bill’, was developed by lawyers representing bereaved families in the 2014-2016 inquests. In 2016 the inquest jury found that the 97 people who died in the disaster were unlawfully killed (thereby overturning the previous verdict of accidental death reached at the original inquest in 1991). 

One of the objectives of the Hillsborough Law was to create a new legal duty of candour on public authorities and officials 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.  Importantly, an intentional or reckless failure to discharge these duties, including misleading the public or media, would carry criminal sanctions.  

In his 2017 report entitled ‘The Patronising Disposition of Unaccountable Power: a report to ensure the pain and suffering of the Hillsborough families is not repeated’, Bishop James Jones included an explanation from proponents of the Bill as to why they thought it necessary:

“Public authorities and servants should tell the truth and act with candour – the sad fact is that they generally don’t. Institutional defensiveness and a culture of denial are endemic amongst public institutions as has been demonstrated not only by the Hillsborough cover up but countless other examples. Scandal after scandal, such as Plebgate and the child sex abuse investigation failures, have increased public distrust in the police. But the police are by no means the only public institution where such a culture prevails.”

Bishop Jones agreed with the aims of the Bill and shared the proponents’ view that whilst legislation isn’t the answer to creating a culture of honesty and candour, it is part of the answer since the Hillsborough Law “will encourage public authorities to tell the truth and will empower individuals employed by these authorities to come forward and do the right thing”. 
 
The Bill was originally put forward by Andy Burnham in 2017, but had not been passed into law by the 2017 General Election. In its delayed response to Bishop James Jones’ report in December 2023, the Sunak Conservative Government opposed the introduction of the Hillsborough Law. This was on the basis that other duties and obligations created since the Hillsborough disaster, together with other actions to be taken in response to Bishop James Jones’ report (including a new duty of candour in policing), broadly achieve the aims of the Hillsborough Law.

However, the Joint Committee of Human Rights’ Third Report in May 2024 disagreed. It examined these issues and concluded that it is not clear that the ‘patchwork’ of current duties are operating to ensure openness and transparency. The Report recommended introducing a statutory duty of candour extending to all public authorities, and criminal sanctions and culture change within the public sector to ensure compliance.

Will the Hillsborough Law bring change for local authorities and council officers? 

The short answer is ‘yes’. Although it is correct that a number of duties already exist that require public authorities to be honest and open, some are authority specific and not relevant to local authorities. For instance, since 2014 NHS trusts have been subject to a statutory duty of candour following Sir Robert Francis’ inquiry into Mid-Staffordshire NHS Foundation Trust, pursuant to which medical professionals have a duty to be open, honest and transparent with ‘service users’. Also, as touched on above there is a new duty of candour in policing set out in the Code of Practice for Ethical Policing. 

In terms of existing duties of candour relevant to local authorities and/or council officers, these are limited to specific scenarios. For example, if challenged by way of judicial review, local authorities are required to co-operate and make candid disclosure of the relevant facts and the reasoning behind the impugned decision. However, a failure to comply with this duty is not an offence, the main risk being criticism by the court. Also, if a local authority is participating in a statutory inquiry, under the Inquiries Act 2005 the chair can require witnesses to give evidence and provide documents, but again this is a very restricted application of the duty of candour. 

Also relevant are the Nolan Principles (which include principles of selflessness, integrity, objectivity, accountability, openness, honesty and leadership) which apply generally to anyone who works as a public office-holder. These are very much aligned with a duty of candour, but they are not law or legally enforceable. Local authorities will have codes of conduct in place that make it clear that both councillors and officers are required to uphold the Nolan Principles, but these codes are not law. A failure to comply may result in internal disciplinary action, but that is unlikely to assist victims of disasters or state-related deaths obtain answers to their questions.    

Some criminal sanctions already exist, predominantly ‘misconduct in public office’, a common law indictable offence concerning serious wilful abuse or neglect of the power or responsibilities of the public office held. For local authorities, examples of convictions include an officer improperly arranging for contractors to carry out work at their partner’s home, accessing information to pass on to a criminal, and a councillor seeking to influence a decision on the route of a new bypass to divert it through their own land to increase its value. 

Although misconduct in public office covers a wide range of possible actions or omissions, in its December 2020 review the Law Commission noted “the offence is widely considered to be ill-defined and has been subject to recent criticism by the Government, the Court of Appeal, the press and legal academics.” Unsuccessful attempts to use the offence include those associated with the Hillsborough disaster. 

In our view, therefore, the introduction of a general duty of candour that carries criminal sanctions is likely to be very relevant to local authorities, councillors and officers. 

The briefing issued alongside the King’s Speech said that the Bill “will be the catalyst for a changed culture in the public sector" by:

• Improving transparency and accountability where failure in the provision and delivery of public services is the subject of public investigation and scrutiny
• Reducing the culture of defensiveness
• Helping ensure that the lack of candour uncovered in recent reports is not repeated, such as in the case of the Hillsborough and Infected Blood Inquiries

Whether the new duty will achieve that objective will be part of the discussions to come. The knowledge that individuals may be subject to criminal sanctions should they fail to comply with the duty should help to drive up standards.

Also topical will be what changes are required to ensure compliance with the duty. Inevitably, there will be an (ongoing) focus on good governance and culture, sound decision making and good record keeping. These discussions will overlap with discussions around other duties, particularly the best value duty and the need to demonstrate continuous improvement, as many of the same issues around the importance of leadership, culture and governance are in play. 

This will include what protections are required for those seeking to do the right thing up-front, and speak truth unto power in the face of, as the manifesto pledge put it, “the unacceptable defensive culture prevalent across too much of the public sector” or the perceived automatic response, as Infected Blood Inquiry chair Sir Brian Langstaff put it, where civil servants and ministers (or local authority officers and cabinet members) adopt "lines to take" with insufficient thought.