Amendment to Public Office (Accountability) Bill
The amendment to the Public Office (Accountability) Bill, commonly known as The Hillsborough Law Bill would create a legal duty of candour and assistance for public authorities and officials.
The Bill is about more than Hillsborough, but we would not be here today but for the unlawful killings at Hillsborough 37 years ago. It must be enacted without further unnecessary delay, but still with significant scrutiny to help make sure that it achieves its aims.
As I said in our Hillsborough debate last November, it is welcome that the legislation will apply beyond public bodies to private bodies and contractors delivering public functions, but I fear that this principle will be undermined if subcontractors are not also included; nor will it be as effective as it should be if we fail to strengthen the whistleblowing protections so that breaches of the duty of candour cannot be buried. This may require the creation of an independent office of the whistleblower and other measures to ensure statutory protection for those who exercise candour and expose wrongdoing, perhaps among colleagues.
I speak as someone from Liverpool who is mindful of how the deaths of the blameless victims and the lies about them affected my city. It took great courage and determination in the face of establishment cover-ups to finally get the truth to be accepted beyond Merseyside and to bring about this Bill, but it should never have required a change in the law to make police and public officials tell the truth. A change of culture is necessary as well as changes in the law.
My fear now is that the Bill’s promise of accountability may be weakened by fragmented codes and inconsistent enforcement. We will achieve much through establishing the duty of candour, the provision supporting participation in inquiries and investigations and the proposed offences. The Bill requires public authorities to promote ethical conduct, and it permits authority-level codes and disciplinary consequences for employees, but there are therefore risks of ineffectiveness if there are different codes with different wordings and different complaint routes. A citizen’s entitlement to honesty, accurate records, a prompt response and correction of errors should not depend upon which authority is involved, which professional regulator happens to have jurisdiction, or whether the people responsible remain in employment when the issues are finally examined.
The criminal provisions properly require criminal proof, but a criminal investigation cannot be the routine response to every serious ethical failure. There needs to be proper investigation of conduct that is too serious for a merely internal response, but which would not properly be addressed by criminal prosecution. That is why the proposal made by Andrew Devine’s family deserves close attention. Andrew survived for more than 32 years with the catastrophic injuries he suffered at Hillsborough, and he was ultimately recognised as the 97th person unlawfully killed. His family’s experiences extended across decades of interaction with public bodies, healthcare regulators and the legal system. The family have therefore asked for there to be one enforceable code of conduct for all public officials, with significant sanctions, including financial penalties, for non-compliance.
The Bill could include a core statutory code so that no public body should be able to fall below a common minimum standard. The core duties should include honesty, candour, proper record keeping, timely disclosure, correction of known error, co-operation with lawful scrutiny, reasons for material decisions and fair treatment of affected people.
An effective system also requires independent enforcement. An authority implicated in institutional failure should not always remain the sole investigator and judge of its own compliance. A proportionate commission, accountable to Parliament, could triage complaints and refer suitable cases to existing regulators or employers. It could independently determine serious, repeated or systematic breaches. Its purpose would not be to punish every mistake: advice, correction, apology, training or warning may be sufficient in many cases. Public censure, a financial penalty or time-limited disqualification should be reserved for serious or persistent misconduct and imposed only through fair procedure.
Accountability should not disappear merely because a person resigns, retires or transfers before a matter is concluded. We should therefore ensure that the Bill creates not simply a series of codes but one intelligible baseline, with credible consequences for breaching it, and a fair, independent system capable of changing conduct before more families of victims have to spend decades fighting to establish the truth.