The problem with the Hillsborough Law

The Public Office (Accountability) Bill, popularly known as the “Hillsborough Law”, was introduced by the Labour government following years of campaigning by the families of the Hillsborough tragedy and other scandals involving egregiously dishonest and unlawful behaviour by public officials. The justification for the Bill is that it is a necessary corrective to grave failings of candour and honesty in the British state. The Bill has received near unanimous cross-party support. It cleared the Commons on 14 July without a division and is now in committee in the House of Lords.

Yet in a new paper for Policy Exchange, Professor Richard Ekins, Sir Stephen Laws and I argue that the maxim that “hard cases make bad law” unfortunately applies to much of the Bill. As Lord Butler, former Cabinet Secretary, says in his preface to our paper, “the Bill will not achieve what its well-intentioned proponents hope for.” Instead, if it is not amended, the Hillsborough Law is likely to damage the internal workings of government, increase the defensiveness of the civil service, chill democratic debate, and may well perversely reduce the level of candour in the state.

Some parts of the Bill deliver Labour’s 2024 manifesto promise by providing for a statutory duty of candour owed by public bodies and officials to inquiries and inquests and with legal aid for bereaved families. The Bill adds a duty to come forward unprompted with relevant information, backed by criminal liability for failing to do so. The criminal offence aspect was not mentioned in the manifesto. Other parts of the Bill have neither any connection to inquiries nor the government’s manifesto commitments. They include a new obligation on every public authority to adopt an ethical code, a new offence of misleading the public, and two new statutory offences to replace the common law offence of misconduct in public office.

The most objectionable part of the Bill is clause 12, which creates an offence of misleading the public and carries a penalty of up to two years imprisonment. The crime turns on concepts such as “obfuscation”, “seriously improper”, and can be committed by someone who “ought to know” their conduct was seriously improper. “Misleading” itself is undefined. If this clause becomes law, it will do considerable damage to our democracy.

The Director of Public Prosecutions (the DPP) will be deluged with requests by political partisans and pressure groups for consent to prosecute ministers they dislike for “misleading” the public over their favoured issue, whether it be migration figures, NHS waiting lists, or economic forecasts, on the basis that ministers were cherry picking facts, selective and tendentious in their use of evidence, or failed to address the real cost or impact of policies.

Even if the DPP seldom consents, the chilling effect on ordinary democratic politics will be real. Lords Faulks KC, a former Justice Minister and Chair of the Independent Review of Administrative Law, writes in his foreword to the paper that

… the vagueness of the ingredients of the offence and the width of the definition of a public official give very little assistance to a prosecuting authority, or the DPP, as to when to prosecute. Such decisions may have an unwelcome political component and run the risk of inhibiting free speech.

The government accepts that what is said by ministers in Parliament itself should be protected, but if their concern is about protecting democratic speech there is no reason this protection should stop abruptly outside the Palace of Westminster.

This part of the legislation would also seriously change the relationship between ministers and civil servants. If a civil servant thinks a minister is at risk of issuing a “misleading” or “obfuscating” statement, perhaps because they disagree with the minister’s assessment of the underlying policy, then this gives them a reason to decline instructions, not least since they might otherwise be culpable for aiding and abetting a crime. 

The duty on public bodies to issue a new ethical code will introduce new grounds for legal challenge, with claimants inviting the High Court to decide, at great cost in time and resources, what the code means and then to hold that the public authority has departed from it unreasonably. 

Neither the offence of misleading the public nor the duty to issue ethical codes appeared in the Labour manifesto, so the Salisbury Convention, under which the House of Lords does not block manifesto commitments, does not apply. Parliament should reconsider these parts of the Bill — removing the former in its entirety and making the latter explicitly immune from judicial review.

The reason to be concerned about the new duty of candour is not that the British state is above criticism, but that this Bill takes the wrong approach. The Inquiries Act 2005 already lets a chair compel evidence and makes it a crime to suppress or destroy documents. What the new duty of candour does is to require officials to come forward unprompted with information that might be relevant, under pain of criminal liability for failing to do so. The test for breaching the duty is not intending to do so, but recklessness, which means an official can be liable if they misjudge whether they should have contacted the inquiry.

This duty would make sense if it were confined to narrow, tightly framed inquiries, where the terms of reference left no one in doubt as to the scope of what was being looked at. It is less defensible in the context of the inquiries the British state now runs with greater frequency, which are expansive and years long audits of whole swathes of government activity. This new duty of candour amounts to a standing instruction to every official to document defensively and also write fewer sensitive things down, which means inquiries will wade through far greater volumes of information that is less candid and useful. This will add to the delay and cost of inquiries.

Peers will not of course block the implementation of a manifesto commitment. They could, however, press the government hard on how it can achieve its aims in a less damaging way. They also enjoy full constitutional freedom to challenge and remove the worst parts of the bill which are not in the manifesto.