Rethinking duty of candour under the Hillsborough Law 

Most public bodies may feel that they are already familiar with the obligation of a duty of candour, through the judicial review process. However, the Public Office (Accountability) Bill, more commonly referred to as the “Hillsborough Law”, if enacted would create something which is fundamentally different in both the scope and nature of the obligation. This is by introducing a broader statutory duty on public bodies and public officials to act with candour, transparency and frankness with criminal sanctions for breaches. 

A familiar concept in Judicial Review  

The common law duty of candour has been a longstanding feature of judicial review claims. As public bodies will hold much of the evidence, they are expected to assist the court by ensuring that relevant facts and documents are disclosed and evidence is presented fairly and accurately. The emphasis has been an “all the cards face upwards on the table” approach, discouraging a modus operandi of withholding documents or advancing a selective or misleading account of events. 

In practice, most public bodies have developed governance and litigation processes with this duty in mind. The focus ultimately being to assist the court to reach the correct legal outcome in determining whether a decision was lawful or not. 

The introduction of the Hillsborough Law may initially appear to be an extension of those existing obligations rather than a fundamental change; however, it would be a mistake to think this is the case. 

The Hillsborough Law goes much further

The Hillsborough Law was developed in response to concerns arising from Hillsborough, the Infected Blood Inquiry, the Post Office Horizon scandal and other public failures where institutions were perceived to have prioritised their reputation over transparency and accountability. The central aim of the Hillsborough Law is to embed a culture of openness and accountability throughout public administration. 

The proposed statutory duty requires public authorities and public officials to act with candour, transparency and frankness in their dealings with inquiries, investigations and inquests, and to actively assist those processes in establishing the relevant facts. Importantly, the duty of candour is no longer confined to just litigation before a court but extends to a much wider range of circumstances in which the actions of public bodies are examined. In particular, inquiries are likely to require public bodies to take a more proactive approach to identifying, preserving and disclosing relevant material, therefore making it more far-reaching than its judicial review counterpart. 

Crucially, the extension of the duty also catches non-public authorities contracted to provide public services on behalf of public bodies and local authorities. Our corporate, commercial and third sector clients should take note of this and review their existing arrangements, policies, procedures and practices. 

Proactive not reactive  

An important distinction from the more familiar concept of the duty of candour, is that the Hillsborough Law introduces an express duty to assist by proactively identifying key and relevant information to reach the truth, rather than a reactive obligation, as is more usual in judicial review. Effective compliance is likely to depend on robust governance and record-keeping processes. 

Criminal sanctions for non-compliance  

Another important difference is the potential for personal and organisational accountability. Breaching the common law duty of candour in judicial review proceedings can lead to judicial criticism, adverse costs consequences and reputational damage. However, failing to comply with the Hillsborough Law duty may give rise to criminal sanctions and disciplinary consequences, particularly where conduct involves deliberate concealment or misleading behaviour. It therefore requires public bodies to further embed duties of candour within their ethical and governance frameworks. Senior leaders are also likely to face increased scrutiny regarding organisational culture, decision making and disclosure practices. 

Conclusion  

In summary, whilst familiarity with the judicial review duty of candour provides a useful foundation for public bodies, the proposed legislation would, if enacted, require a more fundamental and embedded commitment to openness, accountability, assistance and cultural change to achieve this.  

The Hillsborough Law is still progressing through Parliament, with expectations that it could become law later in 2026.  

For further detail and specific legal advice as to Judicial Reviews and Public Inquiries please contact Claire Wiles on [email protected] or 01245 211285 and Daniel Irving [email protected] or 0203 941 2083.