The Government’s proposed ‘Hillsborough Law’ –…

Introduction

In UK legal and political circles, the thunder of discontent about public body engagement in investigative processes has been rolling for some time.[2] Two contextual factors have come to frame the issue. The first is the increased frequency with which the duty of candour in judicial review proceedings has featured in litigation. The courts have, on a number of occasions in recent years, criticised central government for failures to provide the candid explanation for its actions which the law requires, with substantial development and renewed focus on the concept as a result. The second is the increase in the same period in calls for, and the establishment of, public inquiries into matters and events of real public interest and controversy. In the first of those areas, judicial review, it has long been recognised that “It is not discreditable to get it wrong. What is discreditable is a reluctance to explain fully what has occurred and why”.[3] But there have been a number of recent examples in the second area, public inquiries, where the approach of public authorities and those who work for them has been perceived to be far more defensive; and inappropriately so.

Against that backdrop, the new Labour Government has now confirmed that it will introduce legislation for a Hillsborough Law. It indicated an intention to do so in its manifesto for the 2024 election,[4] where the proposal was framed by reference to a grim catalogue of modern British disasters, tragedies and historical injustices: Orgreave, Windrush, the infected blood scandal, Grenfell and Covid-19, as well, of course, as Hillsborough. The proposal was confirmed in the King’s Speech on 17 July 2024. The aim was said to be to “introduce a duty of candour for public servants [and authorities]” to “address the unacceptable defensive culture prevalent across too much of the public sector”, as highlighted in recent reports such as that of Bishop James Jones into the experience of the families of victims of the Hillsborough disaster.[5] It was further stated that the Bill would improve “transparency and accountability where failure in the provision and delivery of public services is the subject of public investigation and scrutiny”.[6] Finally, and most recently, the Prime Minister confirmed in his keynote speech at the 2024 Labour Party annual conference in Liverpool on 24 September 2024 that legislation will be introduced in Parliament before the next anniversary of the Hillsborough disaster on 15 April 2025. He described it as “a law for Liverpool, a law for the 97”. As such, the proposals have a particular prominence and significance in the new Government’s legislative programme of change.

But while the reference to Bishop James Jones’ report[7] gave some indication as to the background of this proposal, and the Prime Minister’s speech confirmed the imposition of a legislative duty of candour on public authorities and officials backed by criminal sanctions, neither the conference speech nor the briefing note to the King’s Speech identified that references to a “Hillsborough Law” have, since 2017, referred to a specific Bill proposal drafted and promoted by (among others) lawyers involved in the public investigations following the Hillsborough disaster.[8] The proposal in that draft Bill seeks to achieve very wide legal reform. In the absence of the Labour Government’s own draft Bill,[9] what can the history of this term – the Hillsborough Law – and the existing draft Bill tell us about the Government’s own plans and potential issues for debate when those plans are finally put before Parliament?

The errors of the past

In his report (commissioned in April 2016 by then Home Secretary, the Rt Hon Theresa May MP), Bishop James Jones reflected on the experiences of the families of victims of the Hillsborough disaster, including in the various inquests, inquiries and other investigations which followed it,[10] to identify lessons to be learned. One of the key lessons arose from the failure (or refusal) of public bodies involved in those investigations to disclose information and documents to investigators and the victims’ families. Bishop James described this as “a cultural condition, a mindset which defines how organisations and people within them behave and which can act as an unwritten, even unspoken, connection between individuals in organisations. One of its core features is an instinctive prioritisation of the reputation of an organisation over the citizen’s right to expect people to be held to account for their actions. This represents a barrier to real accountability.”[11]

To change this “cultural condition”, Bishop James proposed two potential solutions. The first was that public bodies should sign his Charter for Families Bereaved through Public Tragedy (the ‘Charter’), which set out a number of high-level commitments directed at promoting transparency and acting in the public interest. These would then be given effect within individual public bodies by the introduction of sector-specific measures. It included, as Commitment 3, a promise to:

“Approach forms of public scrutiny – including public inquiries and inquests – with candour, in an open, honest and transparent way, making full disclosure of relevant documents, material and facts. Our objective is to assist the search for the truth.”

The second was the establishment of a specific duty of candour. While Bishop James mainly limited this to police officers in his report, he also expressly endorsed what was then known as the Hillsborough Law or, more formally, the Public Authority (Accountability) Bill,[12] which had been drafted by lawyers who had acted for Hillsborough families and had been laid before the House of Commons in March 2017 as a private members’ bill by Andy Burnham (at that time a Labour MP).[13] Bishop James described the Bill as designed “to set out in statute the existing public law duty of public authorities and public servants to tell the truth and act with candour, both generally and specifically with respect to court proceedings, inquiries and investigations”, drawing on the establishment in 2014 of a statutory duty of candour for those working in the National Health Service (‘NHS’).[14]

Bishop James identified the Bill as having inspired the provisions of the Charter but notably stated that promoters of the Bill realised that: “Legislation isn’t the answer to creating a culture of honesty and candour – but it is part of the answer.”[15]

So what did the Bill, which – despite falling when it failed to be passed into law before the dissolution of Parliament in advance of the 2017 General Election and the seven years which have passed since Bishop James’ report – remains as drafted when Bishop James considered it,[16] actually propose by way of solution?

Materials of future wisdom?

The Bill: Purpose

The purpose of the Bill was explained by Andy Burnham on 29 March 2017[17] as being to empower victims “to secure disclosure of crucial information and prevent public authorities from lying to them or hiding the truth by making that an imprisonable offence. It empowers decent police officers and public servants to stand up to seniors trying to make them stick to a misleading corporate line…”. Its aim was to “rebalance [the] legal system in favour of ordinary people”.

The Bill: Provisions

The Bill – now referred to as the Public Advocate and Accountability Bill – proposes the introduction of a general duty on “public authorities and public servants and officials…at all times to act within their powers – (a) in the public interest, and (b) with transparency, candour and frankness”.[18] It also introduces the following specific duty:[19]

“Public authorities and public servants and officials have a duty to assist court proceedings, official inquiries and investigations—

(a) relating to their own activities, or

(b) where their acts or omissions are or may be relevant.”

“Court proceeding” for the purposes of the Bill means (emphasis added): “all proceedings in criminal, civil or coronial courts, or tribunals set up pursuant to statute, with jurisdiction anywhere in the United Kingdom, or international courts or tribunals to which the United Kingdom government has given effect by statute or treaty.”[20] “Inquiry” includes statutory[21] or ad hoc, non-statutory inquiries.

This scope of application of the duty is immediately interesting in so far as it would apply to both statutory and non-statutory inquiries. At the moment, witnesses to public inquiries can only be compelled to give evidence if the inquiry is statutory, established under the Inquiries Act 2005, and this is a key reason why non-statutory inquiries are often unpopular with interested parties, especially where an inquiry is designed to fulfil the adjectival investigative obligation under Article 2 of the European Convention on Human Rights (the ‘ECHR’). In that context, it is often argued that the Article 2 obligation cannot be met without the inquiry being a statutory one. That is a powerful – and often decisive – counterbalance to arguments in favour of the flexibility (and consequent speed) of process offered by the non-statutory route. If, however, public officials are subject to a statutory duty to assist the inquiry in any event, then, at least where the principal witnesses are likely to be such public officials, it may be that arguments in favour of statutory inquiries become less compelling; an example, perhaps, of unintended benefits for the Government of the day in these proposals given the prevailing culture of public inquiries outlined above.

“Investigation” is similarly widely defined to include any police or other investigation set up by a public or regulatory body to: detect and prosecute criminal and disciplinary offences; ensure compliance with professional standards; or, the adequacy of the provision and delivery of public services and exercise of public functions, including under the Coroners and Justice Act 2009.

In discharging this specific duty of candour, relevant bodies and individuals shall: act with proper expedition; act with transparency, candour and frankness; act without favour to their own position; make full disclosure of relevant documents, material and facts; set out their position on the relevant matters at the outset of the proceedings, inquiry or investigation; and, provide further information and clarification as ordered by a court or inquiry.[22]

When considering disclosure, they shall also “have regard to the pleadings, allegations, terms of reference and parameters of the relevant proceedings, inquiry or investigation but shall not be limited by them, in particular where they hold information which might change the ambit of the said proceedings, inquiry or investigation.”[23]

Both the general and the specific duty would be subject to the following exemptions:

They would be read subject to existing laws relating to privacy, data protection and national security;[24]
They would apply in a qualified way with respect “to private law and non-public functions”, with the effect that where a relevant body or individual acts in a private law matter or non-public function the duties would apply except where to do so “might significantly and disproportionately damage the public interest”.[25] In such cases, including where the issue is one of commercial sensitivity, the head of the public authority would have to give express reasons in writing in support of exemption.

The duties would apply equally to a private entity[26] or individual where they were engaged in a relevant activity which was “delegated or contracted” from a public body or where the private entity or individual “owes a health and safety responsibility to the public or a section of it”.[27] In this way, the proposals would achieve a degree of horizontal application to hybrid public authorities.

The duties would be enforceable by application “to the relevant court or inquiry chairperson” or, where there are no extant court or inquiry proceedings, by way of judicial review in the High Court by any person affected by the alleged breach, or by the court or inquiry acting of its own motion.[28] The limitation of the availability of judicial review in this way means that there is no interference with the principle that judicial review is a remedy of last resort.

Where any court or inquiry is required to consider proportionality for the purpose of any provision of the Bill, it must give “high importance” to the proposed statutory duties.[29] This would, if enacted, be an interesting example of the imposition by a form of structured proportionality review, where a particular factor in the proportionality balance is given enhanced weight by Parliament.

To support the implementation of these duties, the Bill further provides for the introduction of codes of ethics by all public authorities[30] and the introduction of criminal offences for – in broad terms – intentional or reckless breaches or impeding of the discharge of the duties by head of public bodies, public servants and officials (as well as for misleading courts, inquiries or investigations), including those who held positions historically.[31] The Bill identifies that no offence shall have been committed by a person to the extent they “reasonably assert” the privilege against self-incrimination and that (by way of necessary corollary) the duties do not apply to a person who is the subject of a criminal investigation.[32]

The Bill: Status

In terms of its reception, the Bill did not proceed further than its first reading in the House of Commons so no amendments were proposed to it back in 2017. Further, the Conservative Government did not mention it in their response to Bishop James’ report when they made a statement following their signing of the Charter on 6 December 2023.[33] Since the Government emphasised, when signing the Charter that it did not change existing duties in relation to disclosure and other general principles applicable to the discharge of public office[34], it is clear that the approach in the Bill was not supported.

However, the Joint Committee on Human Rights (the ‘JCHR’), was invited to review the matter by the Rt Hon Ian Byrne MP, chair of the All-Party Parliamentary Group on Public Accountability, on 15 March 2023, specifically “to consider holding an Inquiry into the merits of a ‘Hillsborough Law’ and how this would elevate, entrench, and safeguard those duties set out in the European Convention on Human Rights”.[35] It did so, heard oral evidence on 19 July 2023 and published its report on 15 May 2024.

Having identified the same ‘defensive culture’ issue as Bishop James in his report but in relation to a wider range of public inquiries and inquests (including the Manchester Arena Inquiry[36]), the JCHR endorsed the Bill’s proposals as an effective way to ensure that the UK meets its obligations under Articles 2 and 3 of the ECHR. In broad terms, these rights oblige the State to conduct effective investigations into incidents where life-threatening injuries have been sustained or lives have been lost in suspicious circumstances or where a person has suffered inhuman and degrading treatment, particularly where the State appears to bear some responsibility. This obligation also requires the State to ensure the effective involvement of victims and families in such investigations and, as far as Article 2 ECHR is concerned, is most commonly given effect in the UK via the inquest process.[37]

The JCHR endorsed the Bill’s proposal for a broad, universal statutory duty of candour which “would go further than existing duties, requiring transparency and openness that could help the search for truth and tackle institutional defensiveness.”[38] Further, the intention behind the Bill was that “it would not only require public authorities and corporations responsible for public safety to tell the truth, it would require them to proactively assist the process from the outset.”[39] Notably, the JCHR emphasised that the existence of a duty of candour was particularly significant in the inquest and inquiry context because there was no legal framework governing disclosure in that context and these were “inquisitorial, not adversarial processes” which were about establishing facts and not apportioning liability. In more detail, the JCHR held that:

“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.”[40]

In practical terms, the JCHR valued the duty of candour proposal in the inquest and inquiry context because it would mean those involved would have a better understanding of the issues in dispute, thereby resulting in a swifter process better delivering the UK’s Article 2 obligations (i.e., that an investigation must be prompt and progress with reasonable expedition).[41] As an example of the effectiveness of this approach, the JCHR highlighted the example of the independent review into the events of the UEFA Champions League Final in Paris on 28 May 2022[42] in which those involved were directed to “provide all relevant material and information in their possession, and indicate any material, or any part of any material produced to the Review which should not be published and indicate why”.[43]

The JCHR also endorsed the creation of a supportive framework of criminal offences because a key question for any duty of candour is how well it can be enforced.[44] The JCHR had heard evidence that potential criminal liability might offer protection to (often junior) public servants trying to comply with the duty of candour obligation.[45] It was recognised, however, that the risk of prosecution could lead public authorities “to be overzealous in their approach to disclosure, creating a disproportionate administrative burden”, and even be the impetus for future “cover up[s]”.[46] Further, it was open to serious question whether the existence of criminal sanctions for the breach of the NHS duty of candour introduced in 2014 (referred to above) had made a difference to rates of compliance. Indeed, the JCHR noted that compliance rates were believed to be so low that a Government review of the NHS regime had been announced in December 2023, alongside the signing of the Charter.[47]

While its focus was (understandably) on the inquest and inquiry context, the JCHR did consider the duty of candour principle as applied in judicial review proceedings, noting that it was a self-policing regime and lacked the “enforcement mechanisms” (i.e. criminal liability and enforcement through the courts) proposed in the Bill and that this had been identified by legal commentators as leaving space for public authorities to avoid disclosing important information.[48] Like Bishop James in his report, the JCHR also considered steps taken to introduce a “type of duty of candour” for the police in the Criminal Justice Bill[49], which would have required the introduction of an ethics code for chief officers. This proposal does not appear to have found favour with the JCHR who identified key lacunae as the lack of an enforcement mechanism and lack of clarity about how it would apply to individual officers.[50]

Reflections on the Hillsborough Law

There is no doubt that the sharing of information held by public authorities in a timely and proportionate manner is a vital element of ensuring that their decisions, acts and omissions are subjected to appropriate scrutiny, whether by a judge in judicial review proceedings or by a coroner or jury, by the head of an inquiry or (as placed front and centre in the reports of Bishop James and the JCHR) those most closely affected by such matters, like the victims of the Hillsborough disaster and their families. How that vitally important objective can best be given effect is a complex question, involving considerations not just of law, but also of policy, with which the Government will have to grapple if proposed legislation in this area is to make its way out of draft and into the real world. In the following paragraphs, we set out some thoughts – and some unanswered questions – as barristers who advise both public authorities and members of the public who wish to challenge public authority decisions.

Question 1: What should be the scope of reform?

The duty of candour as it currently exists is a judicial review concept, designed to avoid what would otherwise be the application of the disclosure regime set out in the Civil Procedure Rules (‘CPR’), which applies (in various forms) to all other civil proceedings. There are separate rules governing disclosure in the criminal context. The Bill as presently drafted seeks to establish a specific duty of candour which would apply to all court proceedings, regardless of whether they are adversarial in nature and have their own extant regimes which reflect that reality.

The breadth of this scope is striking in circumstances where, as the JCHR identifies, parties in adversarial proceedings are entitled to defend their positions robustly. This is as opposed to proceedings in which a duty of candour is currently considered appropriate, which are inquisitorial in nature (i.e. inquests and inquiries) or which involve the scrutiny of public law decisions by the courts to give effect to the rule of law (i.e. judicial review proceedings) where defensiveness – as identified by Bishop James and the JCHR – is inappropriate. Traditionally, the Courts have recognised the distinction between public and private law proceedings as justifying the different approach under the duty of candour in judicial review. As Singh LJ held in the long-running Chagos Islanders litigation:

“This is because the underlying principle is that public authorities are not engaged in ordinary litigation, trying to defend their own private interests. Rather, they are engaged in a common enterprise with the court to fulfil the public interest in upholding the rule of law.”[51]

How would a duty of candour operate in the very different circumstances where a public authority is, for example, seeking to prosecute an individual in the criminal courts for breaches of planning control? Or where a public authority is a claimant in civil proceedings against a former employee for fraud? Or a defendant in a tort claim? Further, each of those scenarios takes place in a context where existing disclosure regimes operate to ensure that each party has access to relevant material which supports their case or undermines that of their opponent and where non-compliance is penalised (for example, contempt of court proceedings for signing statements of truth to disclosure lists or witness statements knowing the contents to be untrue). Recent experience of obstruction and buck-passing in the public inquiry context demonstrates that here is clearly a very powerful argument for the introduction of a wide-ranging duty of candour on those who exercise public powers.[52] The argument plainly has a weighty moral aspect, as reflected in the recent re-emphasis on the duty of service and the responsibility that comes with it. But the argument is also an intensely practical one: the price of failure is often high. Nonetheless, real care needs to be taken in evaluating, identifying and articulating what it is precisely that the duty will add to those existing duties, if it is to be a duty with real impact which avoids the risk of confusion with those same duties.

If limited to the areas of public law where the duty of a party in terms of disclosing information and documents is at present unclear - which was the assessment of inquests and inquiries reached by both Bishop James and the JCHR, and which has been said of the operation of the existing duty of candour in judicial review – the benefits are perhaps clearer. However, if the new statutory duty is to take anything from the stop-start common law development of the judicial review duty of candour, any proposed legislative framework would have to descend into much more detail to avoid the fate of the NHS duty of candour, where implementation is poor. Alternatively, it would have to be accompanied by a procedural framework equivalent to the civil disclosure model[53] which identifies a clear test to identify information or documents subject to the duty, explains how that duty impacts on different types of evidence which might be produced (e.g. expert witness evidence), the time when the duty is engaged, the identity of the person who is responsible for its implementation and how compliance is to be reviewed (and, in the event of a breach, enforced). It is only with the provision of such details that the parties involved will know what their responsibilities are and what may happen if they do not discharge them. Reliance, as the JCHR was aware, on criminal sanctions will not be sufficient to bring this about.

Question 2: Who should be the subject of the duty?

The Bill as currently drafted imposes the specific and the general duty on both public bodies (or their private body delegatees) and the individuals who work in them, with each being liable to criminal sanction for breaching them. The rationale for this is clear from considering issues raised in the context of the Hillsborough disaster where individuals in public bodies were found to have taken decisions to hold back relevant information or not to volunteer information which might have changed the scope of investigations. But will the imposition of both duty and criminal sanction on individuals have the desired effect of empowering junior officials and public servants “to stand up to seniors trying to make them stick to a misleading corporate line” as envisaged by Andy Burnham when he laid the Bill before the House of Commons in 2017?

In public law, it is relatively unusual for mandatory statutory duties to be imposed at the individual level, not least because in the context of judicial review – one of the enforcement mechanisms included in the Bill - they give rise to strict civil liability in the case of breach and ‘best endeavours’ arguments go only to the remedy to be granted where a breach is established; they are not a defence.[54] In circumstances where “public servants and officials” are defined for the purposes of the Bill as “all those who work for or hold office under a public authority” and the phrase is to be interpreted “inclusively” in case of any dispute, there may be a risk of junior officials in public authorities being made to take the blame for wider systemic failings in the organisations, since it may be easier to target more junior individuals with direct involvement in decision-making rather than establishing wide-ranging organisational failure. While there are clear benefits in the public interest of directing sanctions for breaches at senior office holders, with whom the decision-making buck stops (and who are remunerated and trained on that basis), the potential exposure of more junior officials in this way may well give rise to discontent. In a different context, it is notable that central Government pressed hard (but unsuccessfully) to try to maintain a general approach of redacting junior civil servants’ names in material disclosed pursuant to the duty of candour for very similar reasons.[55] A duty of candour as wide-ranging as that proposed in the Bill may sit uneasily with that approach.

Question 3: What cost progress?

Throughout both the Bishop James and JCHR reports there is a second theme which runs alongside and ranks in equal importance to the ability to access information and documents: the ability to pay for lawyers to help obtain such material and, if it is not forthcoming, to help fight to enforce the obligation to disclose it. It is for this reason that the Bill includes, alongside the introduction of the statutory duties, provision for automatic access to publicly-funded legal assistance and representation at the same level or in proportion to the resources provided to the public authority.[56]

It is not clear from either the King’s Speech or the Prime Minister’s conference speech whether such extensive provision is intended in the new proposals. What is stated in the Background Notes to the King’s Speech is that (emphasis added): “Alongside legislation, we will take action to improve assistance for bereaved persons and core participants at inquests…[including] delivering the Government’s manifesto commitment to provide legal aid for victims of disasters or state-related death”. There are already mechanisms for securing legal aid in Article 2 inquest cases and inquiries which are not subject to ordinary means testing.[57] Again, there are powerful arguments for extending provision more widely, given the context. But as with debates about public funding, there are difficult (and often impossible) competing demands on the public purse which must be balanced. The new Government has regularly referred to the £22 billion ‘black hole’ in the public finances.[58] Plainly, there will be difficult questions of policy to consider that stretch far beyond the legal questions to which the proposed duty gives rise.

What can certainly be said is that any legislative regime which relies on enforcement through the courts, particularly by way of making an application, is limited in benefits for those who do not have access to adequate legal advice. Those people are frequently amongst the most vulnerable in our society, as the debate over the need for a Hillsborough law recognises. Without such support, future families and inquiry participants are likely to find themselves unsure about how to approach public authorities for information or documents covered by the statutory duty or how to enforce that duty when no response is forthcoming. This is evident in existing information access regimes, such as under the Freedom of Information Act 2000 and the Environmental Information Regulations 2004, which continue to be the subject of disagreement and litigation as between the public bodies who hold the information and the members of the public who want to access it.

Conclusion

The moral impetus for a Hillsborough law is clear and weighty. Recent experience has sadly demonstrated that the problems faced by the families of those who lost their lives in the Hillsborough disaster in seeking justice and truth were not unique. They have been repeated time and again since that tragedy, and against a backdrop of very considerable (and generally socially progressive) development elsewhere in public law. But the issues with which the legislative proposals will have to grapple are very far from straightforward. The existing Bill offers an interesting model and perspective, receiving, as it already has, considerable attention and scrutiny from the JCHR. It remains unclear to what extent it may or may not influence the proposals to be introduced to Parliament in due course. But once those measures are introduced, it may provide a useful touchstone to measure the extent of the Government’s intentions and ambitions on this issue.

This blog was written by David Blundell KC and Katharine Elliot.

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[1] Adapted from Edmund Burke, Reflections on the Revolution in France, 1790: “In history, a great volume is unrolled for our instruction, drawing the materials for future wisdom from the past errors and infirmities of mankind.”

[2] See Thomas Wyatt, Innocentia Veritas Viat Fides Circumdederunt me inimici mei, 1546: “For sure, circa Regna tonat” (“For sure, thunder rolls around the throne”).

[3] R v. Lancashire CC, ex parte Huddleston [1986] 2 All ER 941, per Sir John Donaldson MR at p.945.

[4] See the Labour Party Manifesto, at p.77: https:// labour.org.uk/wp-content/uploads/2024/06/Change-Labour-Party-Manifesto-2024-large-print.pdf, last accessed 27 September 2024.

[5] Background Briefing Note to the King’s Speech 2024. The Hillsborough disaster occurred on 15 April 1989 and resulted in the deaths of 97 people as a result of injuries suffered during a crush following the admission of a large number of supporters through exit gates at the FA CUP semi-final at the Hillsborough Stadium in Sheffield. Following a report by the Hillsborough Independent Panel, chaired by Bishop James Jones, in September 2012, the verdicts reached in the original inquests into the deaths held between April 1990 and March 1991 (of accidental death) were quashed and new inquests (held between March 2014 and April 2016) set in train which resulted in jury verdicts of unlawful killing.

[6] Ibid.

[7] ‘The patronising disposition of unaccountable power’: A report to ensure the pain and suffering of the Hillsborough families is not repeated, Right Reverend James Jones KBE (November 2017) (the ‘BJJ Report’).

[8] At the present time, represented principally by the Hillsborough Law Now group.

[9] As at the date of drafting this article (27 September 2024).

[10] The judicial inquiry led by Lord Justice Peter Taylor (1989 - 1990), which focussed on crowd control and safety at sports events, the scrutiny led by Lord Justice Stuart-Smith (1997-1998) to look at whether fresh evidence had come to light about the disaster which had not previously been considered, and the Hillsborough Independent Panel (2009 – 2012), which again looked at the question of fresh evidence this time with the benefit of the “maximum possible disclosure” of documents from relevant public bodies. It was identified that both the Taylor inquiry and the Stuart-Smith scrutiny had not had the benefit of full disclosure of relevant documents. There were also civil legal claims, criminal and disciplinary investigations, judicial reviews and unsuccessful private prosecutions of the two most senior police officers in command on the day of the disaster.

[11] BJJ Report, Executive Summary, para 4.

[12] Bill 163, 56/2.

[13] BJJ Report, paras 2.101 – 2.107 and Point of Learning 13.

[14] As set out in reg.20 of the Health and Social Care Act (Regulated Activities) Regs 2014. This provides that all health service bodies have a duty to ‘act in an open and transparent way with relevant persons in relation to care and treatment provided to service users’ with specific obligations to notify patients and provide a factual account and apology arising after a notifiable safety incident occurs. It operates alongside professional duties contained in regulatory guidance (e.g., Nursing and Midwifery Council Guidance).

[15] BJJ Report, para 2.105.

[16] Save that it has now been combined with elements of a private members’ bill proposed by the Rt Hon Maria Eagle MP in 2022 (the Public Advocate (No.2) Bill). That too fell on the prorogation of Parliament in 2023. It provided for the creation of the role of Independent Public Advocate to represent the interests of victims of public disasters and their families. This was a further reform advocated by Bishop James in the BJJ Report.

[17] Hansard, HC Deb, 29 March 2017, vol. 624, col. 304

[18] Clause 6(1).

[19] Clause 6(2).

[20] Clause 10.

[21] Per the Inquiries Act 2005.

[22] Clause 6(3)

[23] Clause 6(4)

[24] Clause 6(5)(a)

[25] Clause 6(5)(b), 6(6) and 6(7)

[26] Any corporation, partnership, business, or professional or sole practitioner, or voluntary or charitable organisation.

[27] Clause 6(8)

[28] Clause 6(9)

[29] Clause 10(2)

[30] Clause 7

[31] Clause 8

[32] Clause 8(4) – 8(6)

[33] Written Ministerial Statement by Oliver Dowden MP (then Deputy Prime Minister), Hansard, vol. 742

[34] It was expressly stated that: “In signing the charter, the Government are not intending to widen the disclosure obligations which currently apply or to narrow the well-established exceptions to those obligations.” It was further stated that: “The Government do not understand the charter to expand or alter such obligations whether in judicial review proceedings, inquiries or inquests—or any other proceedings—as defined in the Civil Procedure Rules, the Inquiries Act 2005 and settled case law. The Government will continue to comply with their existing duties in relation to candour and disclosure. Similarly, the Government do not understand the existing duties in respect of the provision of information directly to the public to be expanded or altered by the signing of the charter. This is subject to extensive regulation in, for example, the provisions—including public interest considerations—of the Freedom of Information Act 2000 and the Environmental Information Regulations, as well as the Inquiries Act 2005.” By way of example of those obligations, reference was made in particular to the seven Nolan principles of public life and the Civil Service Code.

[35] Human rights and the proposal for a ‘Hillsborough Law’, Third Report of Session 2023-24 (15 May 2024) (‘JCHR Report’), at para. 19.

[36] A statutory inquiry established in 2019 to investigate the deaths of the victims of the attack on the Arena on 22 May 2017, in which 22 people were killed.

[37] Although the obligation may also be fulfilled through other mechanisms, for example public inquiries. For a recent (and on-going) example, see the Cranston Inquiry, established to investigate “the events of 24 November 2021, when at least 27 people lost their lives crossing the Channel”: https://cranston.independent-i....

[38] JCHR Report, paras 68 - 71

[39] JCHR Report, para. 32

[40] JCHR Report, para. 36

[41] See, e.g., Jordan v UK (2003) 37 EHRR 2

[42] An incident in which Liverpool fans were exposed to a risk of crushing due to poor crowd control by authorities in charge of arrangements in and around the Stade de France and were then pepper sprayed by French police.

[43] JCHR Report, para 40

[44] JCHR Report, para 46

[45] JCHR Report, para 47

[46] JCHR Report, para 48

[47] JCHR Report, paras 49. As at the date of writing, this review is still underway.

[48] Tom Hickman KC: Candour Inside-Out: Disclosure in Judicial Review, UK Constitutional Law Association, 16 October 2023, https://ukconstitutionallaw.org/2023/10/16/tom-hickman-kc-candour-inside-out-disclosure-in-judicial-review/#:~:text=Thirdly%2C%20the%20duty%20of%20candour,civil%20litigation%20to%20regulate%20disclosure; now also published in Judicial Review volume 28, 2023, issue 4.

[49] Another proposed law which fell because of the dissolution of Parliament, this time ahead of the 2024 General Election.

[50] JCHR Report, paras 64 - 65

[51] R (Hoareau & Bancoult) v. Secretary of State for the Foreign and Commonwealth Office [2018] EWHC 1508 (Admin), per Singh LJ giving the judgment of the Divisional Court, with Carr J, at [20]. This was a passage emphasising the nature of the duty of candour as a duty of explanation, by which it was inappropriate simply to provide huge volumes of documentation and leave the claimant to find the needle in the haystack without explanation; it was a duty to identify “the good, the bad and the ugly”.

[52] One example would be the Grenfell Inquiry Report, which identified serial buck-passing and blame avoidance amongst many of those who had given evidence to the inquiry: see, for example, Phase 2, Vol. 1, paras 10.11 and 10.48.

[53] Enshrined in particular in CPR Pts 18 and 31.

[54] See R (Imam) v Croydon LBC [2023] UKSC 45 at [93]

[55] See R (IAB) v. Secretary of State for the Home Department [2024] EWCA Civ 66, [2024] 1 WLR 1916.

[56] Clause 9

[57] Exceptional Case Funding as provided for in s.10(3), Legal Aid, Sentencing and Punishment of Offenders Act 2012 (i.e. where the lack of legal aid would result in a breach of the person’s ECHR rights).

[58] See, for example, BBC News, “Is there a £22bn ‘black hole’ in the UK’s public finances?”, https://www.bbc.co.uk/news/articles/cx2e12j4gz0o, last accessed 27 September 2024.