The long-awaited 'Hillsborough Law' Bill - officially entitled the Public Office (Accountability) Bill 2025 - is now here, but - if it becomes law - what will it mean in practice for public authorities (and private entities carrying out public functions) and those who work for them?
The headline changes proposed by the Bill are:
- A new 'duty of candour and assistance' in relation to inquiries and inquests, backed by criminal sanctions
- A new duty on public authorities to promote ethical conduct by their staff, including candour
- Abolishing the common law offence of misconduct in public office to be replaced with two statutory offences
- Expansion of legal aid for representation at coroners' inquests
In this briefing, we look in more detail at what is being proposed and what to expect next.
What is the Bill proposing?
The Bill seeks to give effect to the commitment in the Labour Party's 2024 manifesto 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". It aims to impose a duty on public authorities and those working within them to act with candour, transparency and frankness and to make provision for the enforcement of that duty.
The proposed legislation will apply to a broad range of public authorities (including NHS bodies, schools, the police and local authorities) and those working within them (including agency workers). It will also apply to bodies whose functions are of a public nature, or include functions of a public nature. There will no doubt be debate in the Administrative Court as to whether a private entity is considered to have functions of a public nature if the Bill is enacted as currently drafted.
It is notable that the Bill is silent on how it may impact other 'duties of candour', for example the existing duty of candour on health and social care providers under Regulation 20 of the Health and Social Care Act 2008 (Regulated Activities) Regulations 2014. In the absence of any specific reference to it, we consider at this preliminary stage that the proposed legislation will be in addition to pre-existing duties, rather than instead of them.
The Bill as currently drafted proposes the following five key changes:
1. Duty of candour and assistance in relation to inquiries and inquests
The Bill creates a legal duty of candour and assistance on public authorities and public officials in relation to inquiries, inquests and other investigations. Under this duty, public bodies and officials will be required to assist inquiries, inquests and other investigations to achieve their objectives with candour - promptly and proactively, with full disclosure of evidence - and without favour to their own, or any other person's, position. There would be criminal sanctions in cases of non-compliance, up to a maximum of 2 years' imprisonment and/or a fine where an authority or official has failed to comply with the duty with the intention to impede the inquiry or investigation (or reckless as to whether they would do so). This mirrors the existing law in relation to coroners' inquests, where there are already criminal offences for withholding relevant information from the coroner.
Importantly, there would be a requirement for public authorities and those working for them to proactively come forward with any information relevant to an inquiry or inquest, rather than waiting to be asked for it.
The duty is in two stages:
- First, that authorities/individuals should notify an inquiry or investigation if they think information they hold might be relevant for the inquiry or investigation (such notification to be given as soon as reasonably practicable after the authority or public official becomes aware of the establishment of the inquiry or investigation).
- Secondly, that authorities/individuals must provide whatever information and assistance is required by the inquiry or investigation according to their direction. This is triggered when the investigating authority directs the body/person to do so.
A public authority and public official must also provide all such assistance as they can reasonably give to assist an inquiry or investigation to meet its objectives. The 'official in charge' of the authority (the Chief Executive, or person carrying out functions corresponding to a Chief Executive) must take all reasonable steps to secure that the authority complies with those obligations.
2. Duty to promote ethical conduct
Public authorities will be expected to produce a code of ethics relevant to their organisation with duties relating to candour. Those working for the authority should be aware of the code, and there should be consequences for non-compliance. This section puts the Seven Principles of Public Life on statutory footing. The code must include (among other things):
- Expectations that those working for the authority should act in accordance with a duty of candour in matters relating to their work, and
- Provision for those working within the authority to make protected disclosures where they believe a colleague has failed to act in accordance with the code
The appropriate national authority (being the Secretary of State in England and Wales) would publish national guidance in respect codes of ethics, which an authority must have regard to.
3. Misleading the public
A public authority or public official will commit an offence if, in their professional capacity, they act with the intention of misleading the public (or are reckless as to whether their act will do so) and they know (or ought to know) that their act is seriously improper. Failure to comply can lead to a maximum of 2 years' prison sentence and/or a fine. There is a defence to misleading the public - where it was necessary by the armed forces/intelligence services, or where there was a 'reasonable excuse for the act' (and there is sufficient evidence to support that excuse beyond reasonable doubt).
This offence is broad, and will apply to public authorities (including NHS bodies, schools or further education providers and other bodies carrying out functions of a public nature) and those working within them.
4. Misconduct in public office offences
Replacing the common law offence of misconduct in public office are two statutory offences - 'breach of duty to prevent death or serious injury' and 'seriously improper conduct'. This will apply to a broad range of public officials - including ministers and MPs, civil servants, local government workforce and a person who is a member of a body or who works for a body that is established by virtue of His Majesty's prerogative or by enactment, and who exercises functions of a public nature. We consider this would cover the large majority of the public sector workforce, including those working in the NHS.
5. Parity at inquiries and inquests (including legal aid expansion for inquests)
In order to address the 'power imbalance' which sometimes exists between public authorities and bereaved families in inquiries and investigations, the Bill seeks to bring parity of representation. This includes a requirement that public authorities engage legal representatives to act for them at inquiries/inquests only if they consider this necessary and proportionate, having regard to:
- The comparative position of affected persons in respect of their means to engage legal representatives
- The nature and extent of the obligations of public authorities to assist in respect of disclosure and other matters, and
- The importance of the issues under investigation and the need for those issues to be investigated fairly, proportionately, expeditiously and cost-effectively
The provisions of the Bill also enable concerns to be raised over the conduct of a public authority or its appointed legal representative in an inquiry or inquest, including requiring a response to any such concerns raised.
To achieve the aim of parity of representation, the Bill proposes an expansion of non-means-tested legal aid to bereaved families for inquests in England and Wales where a public authority is an interested person. If this becomes law, it will help families to access legal representation, which in turn should assist the coroner. The economic impact assessment of the Bill unveils that this change is likely to cost between £65m - £108m per annum and the current policy intention is that these costs will be met by the sponsoring department for the relevant public authority.
What next?
The Bill has now begun its journey through Parliament, but is likely to be some way off becoming law.
It will now undergo various stages of scrutiny in the House of Commons and then the House of Lords and may well be subject to amendments along the way, although any perceived 'watering down' of its provisions is likely to be strongly resisted by those who have long campaigned for these changes.
We will be closely tracking the Bill's progress through Parliament and will continue to keep our clients updated on all key developments.
