‘Empowering the innocent to stand up to the guilty’

Elkan Abrahamson explains why the ‘Hillsborough Law’ is needed to place a duty of candour on public officials

On 29 March, Andy Burnham MP will be presenting a ‘Hillsborough Law’ to parliament.

At the conclusion of the Hillsborough inquests, the victims’ families and their lawyers discussed what could be done to encourage public officers to tell the truth. Public officers (the police among them) had lied about the events at Hillsborough over the years and during the inquest itself. The lies were deliberately circulated to press and public, and it was only thanks to the efforts of a jury that they were finally disproved.

It was felt that a duty of candour should be introduced into public life. Interestingly, this already exists in the NHS – see regulation 20 of the Health and Social Care Act 2008 (regulated activities) Regulations 2014. Subsection 1 gives a flavour:

‘Registered persons must act in an open and transparent way with relevant persons in relation to care and treatment provided to service users in carrying on a regulated activity.’

We wanted to add a tool to the toolbox which is needed to change the culture prevalent in large public bodies. There is an understandable need to create loyalty in large organisations, especially those (such as the army and the police ) where people are at physical risk. The problem arises when that loyalty encourages people to cover up serious wrongdoing by their colleagues. As a society, we need to persuade people that there comes a point where loyalty become untenable. This requires a massive cultural change and the law can only be a small part of the process.

The bill to be introduced by Andy Burnham, the Public Authority Accountability Bill, will make it a criminal offence for a member of a public body (or a private body acting in a public capacity – for example, G4S running a prison) to cover up wrongdoing within their organisation. It says:

‘A public servant commits an offence if he/she intentionally or recklessly misleads the public, the media, court proceedings, or inquiries or investigations where their acts or omissions may be relevant.’

The bill would codify the current common law which requires public servants to act in the public interest. It would also reinforce and extend this duty.

Public bodies would be required to adopt and publish codes of ethics, there would be duties of cooperation imposed on former public officials.

It is not that we believe public servants cannot be trusted. To the contrary, the vast majority of public servants are honest and understand their duty to society. However, there is often considerable pressure from senior staff – and sometimes from colleagues – not to rock the boat by disclosing wrongdoing. The act would enable someone who was being pressurised to take part in a cover up to push back and say that they are not prepared to risk exposing themselves to criminal liability. It thus empowers the innocent to stand up against the guilty.

The bill has been discussed with the Law Commission, the Home Office, at a symposium of academics at Liverpool University and elsewhere. There has been no opposition to the idea, although plenty of suggestions about amendments.

While we were discussing this, the question of inquest funding – and inquests generally – has also been under review. The former Bishop of Liverpool has been asked to look at the experience of the Hillsborough families and seems to be conducting with the Home Office a wide ranging review of inquests. One of the issues which came up was the disparity in funding between bereaved families and public bodies. The public funding system for families – where it is available – is appalling. It is designed to ensure that lawyers cannot properly prepare for an inquest, especially a large inquest. We are experiencing this with the Birmingham Pub Bombings Inquest where, as an example, a case plan we submitted came back from the Legal Aid Agency with only 4 per cent of the suggested costs approved.

The funding scheme allowed for the Hillsborough Inquest (which was outside the legal aid scheme) allowed proper representation; legal aid funding post-LASPO prevents it.

Andy Burnham has secured a slot under the 10-minute rule and will present the Hillsborough Bill to parliament. At his request we have drafted a Part 2 to the Bill to allow for properly funded legal representation.

The bill will be read next Wednesday. As a rule such bills do not get very far but we hope it will serve as a marker. When the bishop’s review concludes, he will report to parliament. We expect this to be between spring and late summer this year – and we will then take up the argument again.

A Hillsborough Law would help to reinforce a process of cultural change which is needed in the public sector and would be a fitting legacy for the 96 who died at Hillsborough.

The bill, commentary and statements in support, can be found at www.thehillsboroughlaw.com. We welcome expressions of support which can be added via the website.

 

 

About Elkan Abrahamson

Elkan is a partner at Broudie Jackson Canter in Liverpool and represented 20 families at the Hillsborough inquest

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