Public Accountability and the Duty of Candour

The Public Authority (Accountability) Bill (163 2016-17) [1], is potentially an important new law, as it aims:   

1. to set a requirement on public institutions, public servants and officials to act in the public interest and with candour and frankness.
2. to define the public law duty on them to assist courts, official inquiries and investigations. 
3. to create criminal offences for the breach of certain duties. 
4. to enable victims to enforce such duties. 
5. to provide public funding [2] for victims and their relatives in certain proceedings before the courts and at official inquiries and investigations.

It is hoped by campaigners that the bill, commonly referred to as Hillsborough Law, becomes a statute to:

1. create a new legal duty of candour on public authorities and officials to tell the truth and proactively cooperate with official investigations and inquiries and 
2. ensure victims of disasters or state-related deaths are entitled to parity of legal representation during inquests and inquiries [3], so that bereaved families [4] can obtain public funding, just as public money is used to support Government and public authority lawyers; a levelling up of representation to ensure proper participation of bereaved families at inquests and inquiries. This is important to get to the truth of events and provide an opportunity for lessons to be learned to prevent future tragedies and loss of life.

As the Bishop James Jones Report 2017 [5] observes: 

A duty of candour in inquiries and inquests is particularly significant in human rights terms because these are the processes by which the UK generally meets its obligation to investigate deaths under Article 2 ECHR. A duty of candour is also particularly appropriate in inquests and inquiries because they are different to court proceedings, in that they are inquisitorial rather than adversarial processes. An adversarial court process pits two parties against each other, with the court essentially establishing criminal or civil liability by deciding which party is the winner and which is the loser. Each party is entitled to defend itself rigorously against that liability. In an inquisitorial process, the aim is generally to establish what happened, sometimes so that lessons can be learned, with participants in the inquest or inquiry there to assist in achieving this aim. For this reason, participants in inquests and inquiries have particular reason to be open and forthcoming

There is a need to tackle the culture of institutional defensiveness in inquests and inquiries, as demonstrated at Hillsborough inquest, the Bloody Sunday Inquiry, the Mid Staffordshire NHS Inquiry, the Anthony Grainger Inquiry, the Manchester Arena Inquiry and the Grenfell Inquiry.

Likewise in a 2020 report from JUSTICE, When Things Go Wrong, found that in both inquests and inquiries, “lack of candour and institutional defensiveness on the part of State and corporate interested persons and core participants are invariably cited as a cause of further suffering and a barrier to accountability”.

Further in her 2017 review of deaths and serious incidents in custody, Dame Elish Angiolini concluded: “it is clear that the default position whenever there is a death or serious incident involving the police, tends to be one of defensiveness on the part of state bodies”.

It is interesting to note that the limit on the duty of candour proposed in the “Hillsborough Law” would inevitably allow some witnesses to avoid volunteering information or answering questions going to criminal responsibility. However, it is a necessary provision to protect the privilege against self-incrimination and the guarantees of Article 6 ECHR.

The new law in itself will not be enough. The use and application of the law will need to be accompanied by a recognition that there is a deeply embedded cultural problem of secrecy and lack of transparency and candour. 

The use of the new law will have to overcome deep seated systemic and cultural problems which have led to injustices suffered by many over a long period of time, by state officials misbehaving in a wide range of situations affecting the Windrush generation, during industrial disputes such as the Miners’ Strike and Wapping, undercover police operations and more recently the Post Office Horizon scandal.

There is a real need to make British governance more open and democratic.

The public need to be heard to avoid future injustices, and the need for books such as “Why Can’t You Hear Me”.[6] to highlight state failings in dealing with bereaved families.

In the words of the author Andy McCulloch:

Colette’s death was, the coroner said in his conclusions, ‘an avoidable tragedy’. There were multiple failings on the part of the NHS trust, the private clinic caring for her and the AMHP service.’ Yet 8 years later there’s no evidence anything has changed. 3 years ago, Sir Bob Neil’s Justice committee made recommendations to ensure that coroner’s conclusions were acted on. Justice secretary Raab ignored his report. Nothing was done. Implementation of Andy Burnham’s Hillsborough Law will prevent these injustices continuing.”

Bishop Jones said in 2017: "What is needed is a change in attitude, culture, heart and mind. To bring this about, I first ask that those in positions of leadership listen seriously to the experiences of the Hillsborough families described in this (Jones) report.”

The bishop said the response of South Yorkshire Police to criticism over Hillsborough showed "institutional defensiveness" and recommended training for senior officers to ensure an "open and transparent approach" to inquiries.

No longer should bereaved families face obstruction and contempt at the hands of state officials.

In the words of Andy Burnham - the Bill’s sponsor:

“From Peterloo 200 years ago to Grenfell today, ordinary bereaved families continue to be treated in a cruel and dismissive way by a justice system which favours the powerful and the connected. It is a pattern that keeps on repeating itself and it is time to break it.”

There is also the need to consider the part played by the media in such injustices. It should not be forgot that  much of the popular media portrayed the Hillsborough disaster as the fault of the fans and criticised their behaviour in the immediate aftermath, causing additional pain for the anguished survivors and families of the deceased.3  A point recognised by Andy Burnham in his contribution to the Jones report:

The lack of a duty of candour in the first instance allows public authorities to create false narratives and to shift blame on to victims. That is what happens and is still happening. In particular, when those false narratives are amplified through the media, as was the case with the Hillsborough disaster, they become extremely hard to shift”.

It will be instructive to chart the progress of this Bill, and it remains to be seen whether the calls for greater public accountability and candour will be met.

[1] Currently in the House of Commons 2nd Reading stage

[2] By amending the The Legal Aid, Sentencing and Punishment of Offenders Act 2012 

[3] Such as The Manchester Arena attack

[4] covering a wide range of issues and groups such as COVID-19 Bereaved Families for Justice, LABRATS International (Nuclear Testing victims), Grenfell United, Factor 8, Association for Children Damaged by Hormone Pregnancy Tests, Truth About Zane, Post Office Horizon victims.

[5] The patronising disposition of unaccountable power’: A report to ensure the pain and suffering of the Hillsborough families is not repeated ‘published 2017.

[6] Written by Andy and Amanda McCulloch 2021 Jessica Kingsley Publications about the life and untimely death of their daughter Colette McCulloch  a woman of exceptional and singular creativity