Hillsborough law and the shifting paradigm of candour

The Public Office (Accountability) Bill or “Hillsborough Law” was introduced to Parliament in September 2025 and is currently at the report stage.  It’s journey through Parliament thus far has not been an easy one.  There has been criticism that the Bill does not go far enough. 

The Bill fundamentally aims to achieve three things:

• The introduction of a duty of candour
• To provide parity of arms in legal funding for bereaved families involved in inquests and public inquiries
• To introduce a new statutory offence of misconduct in public office

Why Introduce a Hillsborough law?

The “Hillsborough Law” seeks to prevent future miscarriages of justice such as that seen in the aftermath of the 1989 Hillsborough Disaster.  The disaster itself resulted in 97 people tragically losing their lives when attending a football match.  However, it was the protracted injustice that followed the tragedy that led the current Government to make a commitment to legislate for change as an election manifesto pledge.  A public inquiry, inquests and criminal investigations failed to uncover the truth of what occurred in 1989.   In 2012, a report from the Hillsborough Independent Panel prompted an apology from the Prime Minister, following findings of a “double injustice” suffered by the families of the deceased. In 2016, a second series of inquests concluded that the deaths amounted to ‘unlawful killing’ due to the gross negligence of South Yorkshire Police and the South Yorkshire Metropolitan Ambulance Service.  

The 2016 inquest conclusions were in stark contrast to the verdict in the original inquests, where state agencies implicated the fans themselves as culpable for the events that unfolded.  Critically the second inquests also concluded that police officers had lied and altered witness statements to change the narrative as to what had occurred.   The long and tireless fight for justice resulted in campaigners calling for the changes in the law that form part of the Bill.   

Who does the Bill apply to?

The Bill is wider in its application than might be first thought. It will automatically apply to:

• Government departments
• Public authorities
• NHS bodies
• Schools and further education institutions

In addition, the Bill is also intended to apply to those private sector organisations who discharge a public health and safety function.  It will be applicable to public sector contractors.

The Bill in its current form will not apply to the activities of Parliament, the courts or the security services. This is a matter which has drawn criticism from some of the bereaved families of the Manchester Arena attack, who complained of a lack of candour from the security services in the aftermath of the attack, and which has resulted in the present pause of the Bill in Parliament.

Duty of candour – a demand for active cooperation

The duty of candour is not a novel concept, having existed in the clinical context for over a decade. Since 2014, healthcare providers subject to regulation from the Care Quality Commission (CQC), are obliged to adhere to a statutory duty of candour and must “act in an open and transparent way with people receiving care or treatment from them”. The duty of candour introduced by the Public Office (Accountability) Bill has notable similarities, particularly concerning its “always on” character.  

The new duty of candour imposes two compelling obligations and is fundamentally based upon the Nolan Principles. Also known as the “Seven Principles of Public Life”, the Nolan Principles are a set of ethical standards which offer guidance to public officeholders, focusing on the need for integrity, accountability and selflessness. 

Firstly, the Bill emphasises the need for proactivity through a reporting provision. Public authorities must notify the head of an investigation (including inquiries and inquests) if they believe that their acts, or information they possess, are relevant to the investigation. Public authorities must have transparency at the forefront of their minds as such a broad requirement means it is vital to prioritise the search for truth over the prevention of reputational harm.

The second element of the duty requires public authorities to ‘provide all such assistance as they can reasonably give to assist an inquiry to meet its objectives’. This provision builds from the reporting requirement and extends the need for proactivity and frankness, ensuring public authorities act promptly and decisively.

Parity of arms

Parity of arms is more than just providing funding for bereaved families at Inquests and Inquiries.   It also challenges public sector organisations to justify their own representation and expenditure.   Crucially, the Bill requires that: 

“Public authorities engage legal representatives to act for them at inquiries and investigations only if necessary and proportionate.” 

Public authorities must have regard to the comparative position of affected persons, the nature and extent of their obligations and the importance of issues under investigation. 

In reality, funding for victims is widely available in public inquiries, albeit the application of funding has hitherto been at the discretion of the chair of the inquiry.  However, the objective of the Bill is to prevent public sector organisations from outspending other parties and gaining an advantage in the inquiry process.

The Bill seeks to substantially expand the availability of legal aid at inquests. Currently, legal aid is only available in exceptional circumstances, either when the right to life under Article 2 ECHR is engaged or the provision of legal support would be in the wider public interest. The Bill will automatically provide access to non-means tested legal aid (meaning no financial assessment of the individual is undertaken) if a public authority is formally involved in proceedings. 

The availability of non-means tested funding has the potential to result in more complex, potentially adversarial and lengthy inquests in the future.  Subsequently, this may amplify the need for expert evidence and disclosure scrutiny, resulting in an evolution of inquests away from their inquisitorial nature. On account of the proposed funding changes, it is essential that public authorities resist the urge to “lawyer up” and continue to assess each case on its individual merits. 

Misconduct in Public Office and new criminal offences

Investigations of misconduct in public office have dominated recent media headlines.  Misconduct is a common law offence (therefore not set out in a written statute) which carries a maximum sentence of life imprisonment.  The Bill proposes to replace the existing common law offence with two specific statutory offences:

1. Wilful Misconduct 
2. Wilful Neglect 

Wilful Misconduct creates an offence for a person to use public office to obtain a benefit for themselves, or another, or to cause another person to suffer a detriment.  It is a requirement of the offence that the offender must know that their behaviour is seriously improper.  

Benefits and detriments are expected to have wide definition beyond mere financial matters to include reputation etc.  The offence will include acts protecting others who are culpable.  

The offence of Wilful Neglect will only be applicable to public officeholders whose roles require that they protect others from critical harm.  The offence is committed where a person deliberately or recklessly breaches that duty, causing a significant risk of critical harm to others.

It might be said that the Wilful Neglect offence is incompatible with the statutory obligations imposed on police, fire and rescue services. Emergency services are not presently compelled to respond to incidents, even in circumstances where the foreseeable risk of serious or critical harm may arise. 

Conclusions

At the time of writing, the Bill is at the committee stage of the parliamentary process. Those potentially impacted by the Bill need to be mindful that it its provisions go beyond present duties of accountability and candour.  New criminal offences will need to be evaluated and balanced against the risk-based operational nature of the emergency services, including the role of foreseeability in determining liability.  Whilst it is undoubtedly important to set high expectations of public sector organisations, it is vital that we ensure we do not legislate to create obligations which are incompatible with other existing powers and duties, or inhibit the performance and freedom of action of the emergency services. 

The journey for this Bill, and the debates around it, are far from over and we will continue to advise on its progress and the wider implications.