Hillsborough Law – the case for reform of Public Inquiries and Inquests
The Hillsborough disaster in 1989 is a defining moment in British history not only because of the tragic loss of 97 lives but also because of the monumental legal and ethical failures that followed. The long battle for justice on behalf of the families of those who died revealed chronic and systemic failures of accountability, transparency, and care for those affected by tragedy. Government responses include a proposed "Hillsborough Law" and the establishment of a statutory duty of candour to reshape the landscape of public inquiries and investigations. Keir Starmer has recently confirmed that a “Hillsborough Law” will be introduced before the next anniversary of the tragedy.
Understanding the Hillsborough Law and the Duty of Candour
The Hillsborough Law, inspired by the failings exposed during the Hillsborough inquests, seeks accountability and greater transparency in public bodies. At the heart of the proposed legislation is a statutory duty of candour: a requirement for public authorities and officials to be open, honest, and transparent in investigations, inquests, and inquiries. It would mean individual professionals and institutions must disclose information actively rather than concealing or distorting facts.
The proposed Hillsborough Law would make availability of legal aid for bereaved families easier to access which, in turn, removes barriers that are currently faced by ordinary people who attempt to challenge the might of a public institution. It would also introduce criminalisation of cover-ups and deliberate misinformation by public officials. Together, these elements are designed to avoid the repetition of a miscarriage of justice like those which have happened after Hillsborough.
Effects on Ongoing Inquiries
A statutory duty of candour would have immediate implications for ongoing public inquiries. Such inquiries have ranged from investigations into institutional abuses, systemic discrimination, environmental disasters, and failures in healthcare or policing. The following benefits are likely to follow the introduction of Hillsborough law:
1. Increased Accountability: with the duty of candour, public bodies will be obliged to disclose fully all relevant information, even if this shows that mistakes or wrongdoing have occurred. This would help reduce the risk of deliberate muddying, such as that seen in the Hillsborough case, where the police and others manipulated evidence and created a false narrative to shift blame. In the case of ongoing inquiries, such as those into the response to the COVID-19 pandemic or historical abuse, the duty of candour would ensure that those responsible are held to account in a timely and transparent manner.
2. Levelling the Playing Field for Bereaved Families: Hillsborough Law would balance the scales in the relationship between the state's institutions and bereaved families by allowing legal representation, thereby mitigating many of the obstacles, such as financial and procedural difficulties which bereaved families regularly face when attempting to access the justice system.
3. Cultural Change Within Institutions: The statutory duty of candour would provide assurance of cultural change within the public bodies themselves through encouraging an ethos of openness and accountability. Institutions involved in ongoing inquiries would be encouraged to be proactive about the disclosure of information, thereby increasing the credibility of their contributions and decreasing public cynicism.
4. Less Delays, Less Cost: Early complete disclosure as duty of candour could help minimise inquiry processes; reduce delays and resultant costs associated with prolonged battles to disclose evidence in many instances, which otherwise take several years, thereby facilitating a much faster approach towards arriving at conclusions of several inquiries presently running, relating to police conduct or healthcare failing.
Implications for Future Inquiries
Hillsborough Law and duty of candour could dramatically change the way public investigations are carried out and perceived by the public. If the law is given its full effect the likely benefits that will follow includes:
1. Increased Public Trust: Many inquiries are convened to help restore trust in institutions, which may be partly lost due to perceptions of cover-ups or resistance to accountability. The duty of candour would set a minimum threshold of honesty to show that the institution is committed to truth and fairness. Future inquiries would, therefore, have a better chance of fulfilling their intended purpose: to deal with systemic failures and restore public confidence.
2. Higher Standards of Evidence: With a statutory requirement for candour, future inquiries could rely on higher standards of evidence. This would support more robust findings and recommendations to ensure that lessons are genuinely learned and implemented. The duty of candour would discourage the submission of incomplete or manipulated evidence, fostering more accurate assessments of institutional failings.
3. Criminal Deterrence Against Misconduct: Making cover-ups criminal would amount to a meaningful deterrent against the misconduct of public officials. The fact that a cover-up might mean legal consequences should ensure in any future inquiry that the players involved act honestly. This will minimise institutional self-protection at the expense of truth.
4. Better Support for Victims and Their Families: Legal aid provisions, along with the expectation of greater transparency, will help future inquiries be more victim centred. This will make sure that the bereaved families are treated with dignity and respect and will prevent re-traumatisation that usually results from adversarial procedures.
Challenges and Considerations
While the Hillsborough Law and duty of candour hold out the prospect of significant gains, there are potential difficulties in implementation. Public institutions may be resistant to cultural change, and the duty of candour may be difficult to enforce without robust oversight mechanisms. There is also a risk of "defensive practice," whereby institutions overcompensate by disclosing excessive amounts of irrelevant information to avoid potential legal repercussions. A balance will need to be struck between transparency and efficiency.
The success of such reforms, however, depends upon the full commitment of governments and public bodies to making the reforms work in practice. Unless subject to consistent enforcement and clear guidance, the hoped-for benefits might not materialise.