Legislation will ‘introduce a duty of candour for public servants’, the government announced in the king’s speech on Wednesday. What’s proposed is an innovative attempt to make people in authority speak honestly about things that have gone wrong.
That should hardly be necessary. But remember the tragedy at Hillsborough stadium on 15 April 1989. Not only did senior officers from South Yorkshire police take decisions that led to the deaths of 97 Liverpool football fans in a crush from which there was no means of escape. After the event, witness statements were altered to shift blame from the police to the fans. One young constable was made to write a statement that bore no relation to facts she had recorded in her notebook.
Why did the police do this? That was the question Theresa May sought to answer in her book The Abuse of Power, published last year. ‘Being in a position of power,’ the former prime minister wrote, ‘led people to think they could exercise their power in the way they saw fit, in what they considered to be the overwhelming priority – in this case, protection of the institutions of the state. For this, of course, we can also read protection of themselves.’
May was home secretary when the truth about Hillsborough came to light 23 years later. In 2016, she commissioned the Bishop of Liverpool, James Jones, to produce a report on the experiences of families affected by the tragedy. One of his recommendations was ‘the establishment of a duty of candour for police officers’.
Andy Burnham, who had been the cabinet minister responsible for sport in the previous Labour government, then proposed a private member’s bill that would have required public authorities and public servants to act ‘with transparency, candour and frankness’. A public servant who ‘intentionally or recklessly misleads the general public or media’ would have committed an imprisonable offence.
Something along these lines is now on the legislative agenda – but we are not sure exactly what. Although 38 bills were identified by their formal names in background notes issued by the government on Wednesday, this measure was listed only by its working title, ‘Hillsborough law’. Its territorial extent and application have not yet been decided. I suspect that drafting is still at an early stage.
The government promises that its bill will be ‘the catalyst for a changed culture in the public sector by improving transparency and accountability’. It will reduce the ‘culture of defensiveness in the public sector’ and help ensure that the lack of candour uncovered in recent reports is not repeated.
But how can you enforce a measure such as this? That was one of the questions I posed this week at a panel discussion arranged by the Bingham Centre for the Rule of Law and supported by the Jones Day Foundation.
Pete Weatherby KC, who helped draft Burnham’s bill, envisaged that public authorities would have to provide inquiries with a clear account of the events under scrutiny, explaining the part they took in whatever went wrong. Position statements such as these would allow inquiry teams to make detailed supplementary requests for evidence, speeding up the process and saving public funds.
The proposed duty of candour could be enforceable in court through judicial review. It could also be backed up by criminal sanctions. As so often, though, it’s the exceptions that matter. That’s why we need to see the bill.
Meanwhile, the government is pressing ahead with changes to home ownership. The Leasehold and Freehold Reform Act 2024 – which, subject to exceptions, requires new homes to be sold as freeholds rather than leaseholds – was rushed through parliament just before the election. The new government will now bring it into effect. The act also makes it cheaper and easier for existing leaseholders to extend their leases or buy their freeholds.
Another bill, to be published in draft, would enact remaining Law Commission proposals on enfranchisement and the right of homeowners to manage a building they part-own. And commonhold, which never got off the ground over the past 20 years, will be reinvigorated.
So far, I have been talking about long-term reforms. In the short term, a Victims, Courts and Public Protection Bill aims to reduce delays in the criminal courts by allowing associate prosecutors to handle less serious cases. The bill will also provide support for victims of crime or anti-social behaviour. And it will reintroduce measures from the last government’s failed Criminal Justice Bill that might best be forgotten, such as making offenders attend court for sentencing.
Finally, another win for the Law Commission: the Arbitration Bill that it recommended in 2022 will – says the government – support more efficient dispute resolution, attract international legal business and promote UK economic growth.
Plenty to keep all those new Labour MPs out of mischief, then.
joshua@rozenberg.net
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