Currently, a statutory duty of candour applies to NHS providers, and there is a legal duty of candour that applies to parties in judicial review proceedings. However there is no general legal duty of candour operating across the public sector (although there is no doubt an expectation derived from practice and principle that public bodies and public servants should be open and transparent in their work to ensure accountability).
Reports of recent public inquiries (namely the Bishop James Jones' report "The Patronising Disposition of Unaccountable Power" and Sir Brian Langstaff's report on the Infected Blood Inquiry) have called for greater transparency and accountability in public life. In this briefing, we consider how the Government's proposed duty of candour in public life will impact public bodies and public officials, and consider how any new overarching duty of candour might interact or conflict with pre-existing statutory and procedural duties of candour.
Hillsborough Law
Proposed new legislation, currently dubbed the "Hillsborough Law" after the investigations into the experiences of families affected by the Hillsborough disaster, will "address the unacceptable defensive culture prevalent across too much of the public sector" and ensure that "lack of candour uncovered in recent reports is not repeated".
In addition to the core aims of the legislation, the Briefing Note to the King's Speech on 17 July 2024 indicated that the Government will "take action to improve assistance for bereaved persons and core participants at inquests and public inquiries". The Government has also stated that the legislation will provide the "ability to enforce the right behaviours when things have gone wrong". It is not yet clear what enforcement mechanisms the Government intends to introduce.
Unlike other proposals in the King's Speech, there is not yet a draft bill for the Hillsborough Law, though it may resemble the Public Authority (Accountability) Bill introduced by Andy Burnham under the Ten Minute Rule in 2017. That Bill sought to introduce a duty of candour on public authorities, public servants and officials - and required them to act with proper expedition, in the public interest and with transparency, candour and frankness. It also imposed criminal sanctions for intentionally or recklessly misleading the general public or media. The Bill did not progress further than second reading.
In preparation for a codified duty of candour, it is an opportune moment for public bodies to remind themselves of the essential elements of transparency and defensible decision-making.
Existing duties
Existing legal duties oblige public bodies and servants to provide full and frank disclosure in judicial review proceedings. Evidence is to be provided by defendant public bodies in accordance with the duty of candour, and requires public bodies and public servants to draw the court's attention to all information relevant to the issues in the case. The duty is important in the context of judicial review proceedings, as it negates the need to follow the ordinary Civil Procedure Rules requirements of standard disclosure. Instead, the court expects "frank disclosure" from a public body during proceedings.
The consequences of failing to comply with the duty of candour in public law proceedings are imposed at the court's discretion, and include adverse costs consequences, the grant of a disclosure order, the drawing of adverse inferences and (in particularly egregious failures) proceedings for contempt of court.
There are also existing laws covering failure to act candidly in wider circumstances. Where such a failure is so egregious that it amounts to misconduct in public office, some criminal and civil sanctions could bite, for example under the common law offence of misconduct in public office. As an aside, there are also proposals in play for reform of that law: the Law Commission recommended in 2020 (Government response awaited) that it be replaced with two statutory offences:
- Corruption in public office - where the public office holder, in using the position or power of the role, has knowingly engaged in "seriously improper" conduct with the purpose of achieving a benefit or detriment, and cannot prove that their conduct was in the public interest, and
- Breach of duty in public office - where the public office holder has a specific duty to prevent death or serious injury, is aware of that fact, and breaches the duty, causing or risking death or serious injury, while being at least reckless as to whether that would result (Law Commission, Misconduct in Public Office, (2020, Law Com No 397)).
There is also a duty of candour on healthcare professionals which requires them to act in an open and transparent manner and disclose "notifiable safety incidents".
How will the proposed duty of candour impact pre-existing duties?
It is unlikely that any proposed overarching duty of candour will displace existing duties of candour in healthcare settings and in judicial review proceedings. However, it is likely to impact public officials and public sector bodies in their day-to-day work. Until a Bill is drafted, it is unclear how the duty will operate in practice, and what oversight and enforcement mechanisms may be needed to implement the duty.
All change?
The proposed duty of candour is part of a broader move within Government to have a more transparent public sector. For example:
- The recent case of R (IAB and others) v Secretary of State for the Home Department and Secretary of State for Levelling Up, Housing and Communities [2024] EWCA Civ 66 rejected the practice by public bodies of redacting junior civil servants' names as the default in judicial review proceedings.
- Reports of public inquiries, such as the Grenfell Tower Inquiry Report and the Infected Blood Inquiry report also demonstrate an increasing willingness to name individual public officials in the public domain.
- In practice we are seeing significant growth in the breadth of disclosure requests in judicial review, and increasing willingness of the courts to entertain broad disclosure requests from claimants. This shines a light (if it were needed) on the vital importance of record keeping during decision-making, and has resource implications for public bodies defending a judicial review challenge.
To summarise - although it is not yet clear how an umbrella codified duty of candour will operate alongside the existing statutory and procedural duties of candour, there is clear intent within Government to impose a higher onus on those in the public sector to act with transparency and fairness.
If you would like to discuss how the proposed duty of candour may impact your public sector organisation, please contact our public law team.
