The Hillsborough Law Bill: implications for public bodies

In a recent Landmark Chambers webinar, Fiona Scolding KC, Chris Jacobs, Natasha Jackson and Claudia Hyde provided an overview of the Public Office (Accountability) Bill, a significant piece of legislation which proposes to introduce a new duty on public authorities and public officials to act with candour, transparency and frankness, as well as wide-ranging enforcement mechanisms.

The Public Office (Accountability) Bill does more than simply introduce, reintroduce, establish, or strengthen provisions relating to candour. It also provides for a number of other changes to the way public bodies operate, or rather, codifies practices that should be embedded within existing policies, structures and frameworks.

Statutory enforcement of the Nolan Principles

The Bill proposes to place the Nolan Principles on a statutory footing. Clause 9 of the Bill will require all public bodies to have a code of practice aligned with the Nolan Principles, and to adopt a formal code that sets out the required standards.

The Nolan Principles of Public Life, which will already be familiar to those working in public bodies, apply to all public office-holders and lay down seven ethical standards for the conduct of public life: selflessness, integrity, objectivity, accountability, openness, honesty and leadership. They have not to-date, however, been enforced through statutory obligations, with the exception of the Civil Service Code.

For those working in local government, the current proposals also align with suggested reforms aimed at strengthening councillors’ codes of conduct. These include the possible reintroduction of a national oversight body to address misconduct and a new national code of practice for councillors. This framework will likely connect with the provisions in the Bill, though the Bill goes further in that the framework applies to all public authorities, including health and social care bodies, educational institutions and police forces. All of these organisations will be required to adopt and maintain formal codes of conduct.

This will inevitably involve a considerable amount of drafting over the coming years. The government has already indicated that the Bill will include guidance on how public bodies should approach public inquiries, and it is likely that additional guidance will be issued on drafting codes of ethical practice. Much of this material already exists across public bodies, but it will now be consolidated under Clause 9 of the Bill.

To ensure compliance with Clause 9, public bodies will need to consider, at a minimum, the following:

Sub-contracting arrangements. The wide ambit of Clause 9 gives rise to an important question as to the obligations of private contractors delivering public services. Where private companies perform public functions, it appears likely that they will also need to comply with the relevant codes of ethical conduct. This raises practical considerations about whether these obligations should be embedded within procurement processes and contractual terms.
Employment and training. Although public employees are usually introduced to the Nolan Principles when they are first appointed, often during recruitment or induction, and may even sign contracts confirming compliance with them, there will likely need to be “refresher” training, particularly as guidance and case law on compliance with Clause 9 develops. Such training should focus not only on the principles themselves but also on how they operate in practice, and public bodies will need to ensure that systems are in place for monitoring the completion of training.
Protected disclosures. Where there is a belief that the code has been breached, public bodies will need to ensure that mechanisms are in place for the making of protected disclosures in relation to alleged breaches of the code of conduct. This means whistleblowing leads within organisations will need to include breaches of the code within the matters they handle.

Duties of those with “public responsibilities”

Clause 4 of the Bill extends the new statutory duty of candour to those with relevant public responsibilities, including health and safety responsibilities and service providers to public authorities.

However, the Bill currently applies only to service providers with a direct contractual relationship with a public authority, not subcontractors. This creates practical questions about how responsibility will be allocated across complex supply chains and the delivery of public services in practice. Public authorities will need to consider whether their existing contracts with suppliers make provision for compliance with the duty of candour, such as contractual routes of enforcement against contractors if their services become the focus of a public inquiry. If not, contractual terms may need to be updated to ensure that suppliers provide documents, records and other key information where required.

Further difficulties arise in relation to international companies providing services in the UK. Many public services are delivered by multinational corporations whose officers may reside outside the UK. While the Bill has extraterritorial effect in many circumstances, practical issues will arise as to the enforcement of those obligations when a company is based overseas. Procurement processes may also need to include new pre-contract questions, such as whether a contractor has ever been investigated or prosecuted under the Act. This will likely require additional training for contractors and service providers.

Offence of misleading the public

Clause 11 creates the new offence of misleading the public, by which a public authority or public official commits an offence if “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”. The new offence reflects aspects of the existing offence of misconduct in public office, particularly the element of intentional or reckless misconduct.

Determining what constitutes seriously improper behaviour will be assessed objectively, taking into account all relevant circumstances. Litigation of the new offence is likely to generate significant case law around issues such as repeated or significant falsehoods, the concealment of information and obfuscation. While egregious examples will be obvious, many cases may involve more nuanced debates about what constitutes unacceptable conduct. A key issue will be defining what constitutes a significant departure from acceptable conduct, particularly in cases involving alleged obfuscation.

While prosecutions of this offence will require the consent of the Director of Public Prosecutions, hopefully reducing the risk of frivolous private prosecutions, public bodies will still need to ensure that systems are in place for monitoring, preventing and scrutinising conduct that may have “departed significantly from what is to be expected in the proper exercise of the person’s functions”. At a minimum, training of public officials will be required, as will clear protocols for public communications issued by authorities.

Misconduct in public office

Clause 12 follows the publication of the Law Commission’s 2020 report, in which it recommended the replacement of the common law offence of misconduct in public office with new statutory offences. The offence of committing “seriously improper acts” in public office will apply broadly to public officials, and the definition of misconduct extends beyond financial gain, to include situations where a public official obtains a benefit, or causes another person to suffer a detriment, while knowing that their conduct is seriously improper.

The offence in clause 12 covers not only the obtaining of a benefit by a public official, but also the obtaining of a benefit for another person or causing another person to suffer a detriment. “Benefit” and “detriment” are both defined broadly, and can include financial gains or losses, reputational enhancement or harm, as well as “a benefit or detriment of a physical or sexual nature”. The offence thus covers a broad range of behaviours by which a person may abuse their position of power.

The breadth of the offence will likely require existing codes of conduct, employee policies, protocols and training materials to be revised. Anti-corruption measures will be familiar in many public bodies, but may not aptly capture the full range of behaviours that will be criminalised by clause 12.

The duty to prevent death

Clause 13 introduces a further offence in the form of a breach of the duty to prevent death. The offence in clause 13 is the most serious in the Bill, punishable by up to 14 years in prison.

This is in effect an “active bystander” test. A person commits the offence if:

By virtue of their office, they have a duty to prevent the risk of critical harm (defined as death or grievous bodily harm);
They know, or ought to know, that they are under the duty;
They intentionally or recklessly cause, or create a significant risk of causing, another person to suffer critical harm; and
In so doing, their conduct falls far below what could reasonably be expected of the person in the circumstances.

It is particularly notable that the offence does not require that someone actually dies or suffers grievous bodily harm: it requires only that a significant risk was created. This could apply to anyone responsible for systems that affect safety, including hospital staff, health and safety managers, police forces, local authorities, or construction and housing regulators. At an organisational level, such bodies may already be prosecuted under corporate manslaughter offences. However, such offences have proven notoriously difficult to prosecute. Clause 13 may provide a more practical route for holding public officials accountable in these circumstances.

Conclusion

The Bill’s provisions have broad implications for all public office holders, including individuals in voluntary or non-executive roles, such as school governors. All organisations will need to consider the training requirements, codes of conduct, governance frameworks, policies and protocols that will need to be updated or created afresh in order to ensure compliance.

While much of the legislation effectively codifies the behaviours and standards already expected of public office holders, the Bill must be interpreted in its relevant context. The responses not only to the Hillsborough disaster itself, but also to subsequent tragedies such as the Grenfell Tower disaster and the infected blood scandal, led to serious concerns over a lack of criminal accountability in circumstances where serious failures have been linked to losses of life. The ambition of the Bill is to prevent such circumstances from occurring again. The force of the new duties mirrors that ambition.

Fiona Scolding KC is a barrister at Landmark Chambers.

You can watch the full webinar recording here.