The enactment of the Public Office (Accountability) Bill, more commonly known as the Hillsborough law, is set to make a major change in our framework of government. Intended to keep government honest, this new legislation is much more likely to make it hapless. The obvious comparison is with the Freedom of Information Act 2000, which Tony Blair came bitterly to regret.
The 2024 Labour manifesto promised to ‘introduce a “Hillsborough law” which will place a legal duty of candour on public servants and authorities, and provide legal aid for victims of disasters or state-related deaths’. The legislation thus has its origins in the tragic disaster at Hillsborough stadium in 1989 and the scandal of the subsequent police cover-up. The families who were lied to were clearly wronged and nobody should ever be treated in that way again.
Hillsborough was a grave scandal, as were the Horizon postmaster and infected blood scandals. The gravity of these scandals does not mean that whatever legislation the government proposes in response should be enacted without amendment or debate. It is parliament’s duty to consider carefully how the proposed legislation will operate and to ask whether it will have damaging, unintended consequences.
This legislation will change the relationship between ministers and civil servants
In a new paper for Policy Exchange, Sir Stephen Laws, Conor Casey and I argue that the Hillsborough law legislation is poorly framed and should be reconsidered. It is likely to damage the way in which government functions, much as the Freedom of Information Act has made frank discussion within government harder while doing little to make the state more transparent in any sense that matters.
The Hillsborough law will do two quite different things. The first is to create a new duty of candour owed by public authorities and officials to inquiries and investigations, breach of which will be a criminal offence. This is what was promised in the 2024 Labour manifesto, although it did not mention criminal liability. The second is to introduce a new set of duties and offences that have nothing to do with inquiries, including a duty on every public authority to promulgate an ethical code and a new offence of misleading the public. None of this was promised in the manifesto.
The new offence of misleading the public is the most objectionable clause in the Bill. It should be removed. It is framed in open-textured moral language and cannot be reconciled with the rule of law requirements of clarity and predictability. The new offence applies across the public sector, from ministers to schoolteachers. It will inhibit open political debate and be used as a weapon of political complaint. It may well politicise the application of the criminal law.
The duty to promulgate a new ethical code may seem harmless but in fact is likely to introduce new grounds for legal challenge, with claimants inviting the High Court to decide what the code means and then to hold that the public authority has departed from it unreasonably. Parliament should remove this clause or at least amend it to rule out judicial review.
It is already an offence to obstruct a statutory inquiry or to suppress or destroy documents – and the chair of an inquiry can already compel evidence. The new duty of candour which this legislation creates will require officials to come forward unprompted with information that might be relevant, under pain of criminal liability for failing to come forward. The test is recklessness – not intention – which means that an official, however junior, may commit an offence not because he intends to cover up wrongdoing but because he misjudges whether he should have contacted the inquiry.
Maybe this would make sense in relation to a narrow, tightly framed inquiry, when officials were clearly on notice for what was required of them. It makes much less sense in the context of the sprawling, never-ending inquiries that the British state now seems to run almost as a matter of course. The new duty of candour amounts to a standing instruction to every official to document defensively. There must be a risk that this in fact results in inquiries that are slower, less focused and less well-informed than would otherwise be the case.
This legislation will change the relationship between ministers and civil servants. Officials may do less and refuse more. If ministers are at risk of being prosecuted, this gives officials a cast-iron legal reason to decline instructions, not least since they might otherwise be culpable for aiding and abetting a crime. It is not at all clear that the government has thought this through.
The Bill is now before the House of Lords. It has received little challenge from parliamentarians thus far, who may understandably not want to be thought indifferent to the gravity of the Hillsborough scandal. But the risks with this legislation are very significant indeed. Lord Butler, cabinet secretary from 1988 to 1998, agrees, writing in a preface to Policy Exchange’s new paper that:
The Bill is likely to make public servants more secretive, not less. It will slow down and add greater bureaucracy to the processes of government when the reverse is necessary.
The House of Lords cannot legitimately reject legislation that gives effect to a manifesto commitment. But even in relation to those parts of the Bill that do give effect to the 2024 manifesto, peers can and should test the government’s case, asking whether the legislation can be recast less damagingly. In relation to those parts of the Bill that were never promised in the manifesto, peers can challenge them robustly without going beyond the limits of their constitutional role.
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