The Hillsborough Law is not being scrutinised enough
3 min read
The Public Office (Accountability) Bill, more commonly known as the “Hillsborough Law”, has its origins in the tragedy at Hillsborough in 1989 and the scandal of the police cover-up.
The 2024 Labour manifesto promised to "introduce a “Hillsborough Law” which will place a duty of candour on public servants and authorities". The Bill is now before the House of Lords.
Like Keir Starmer before him, Prime Minister Andy Burnham is personally committed to this legislation. Thus far, he has been pushing at an open door, with the Bill making its way through Parliament with very little debate or challenge.
This is unfortunate because, if, or more likely when, Parliament enacts this legislation, it will bring significant changes to how we are governed.
Parliamentarians have a duty to evaluate these changes soberly and openly, considering whether the government’s legislative proposals are well crafted.
In a new paper for Policy Exchange, Sir Stephen Laws, Conor Casey and I argue that the Bill threatens to undermine effective government, to hamstring ministerial control over the public service, and to criminalise politics – and to politicise the application of the criminal law.
Lord Butler, the former cabinet secretary, shares our misgivings, writing in a preface that “the government and the public should be aware of the damage which many with experience of the law and government believe that the Bill is likely to do.”
Lord Faulks KC, former justice minister, agrees, noting that “when a particular tragedy or scandal gives its name to a piece of legislation, there is a danger that there will not be the same level of parliamentary scrutiny that a potentially far-reaching change in the law deserves.” The Bill’s passage through Parliament thus far illustrates the problem.
The Bill goes much further than Labour's 2024 manifesto, creating a new offence of misleading the public, an offence which would apply to almost everyone in the public sector, including ministers and civil servants. The offence does not require proof of intention to mislead; recklessness will suffice, provided that the official knows or “ought to know” that his or her act is seriously improper.
Parliament should not enact a criminal offence that is cast in such broad and uncertain terms, which may criminalise ordinary politics, and which is almost certain to result in politicised application. Extending the criminal law in this way will distort the proper constitutional relationship between ministers and civil servants, equipping the latter to defy the former.
As for the new duty of candour, it is worryingly broad in scope.
It is no small thing to require everyone in the public sector to come forward unprompted to a public inquiry with information that might be relevant, especially in view of how many open-ended inquiries the UK now runs. Reinforcing this obligation with criminal liability, for reckless rather than intentional action, is again ill-advised, and is very likely to distort how government operates. The result might well be less candour, not more, much as with the Freedom of Information Act 2000.
The House of Lords will not oppose legislation that gives effect to a manifesto commitment. But only part of the Bill follows from the 2024 manifesto and thus comes within the Salisbury Convention. And even in relation to this part of the Bill, the manifesto said nothing about the scope of the duty of candour or about criminal liability for its breach, which peers may reasonably question. In relation to other parts of the Bill, peers are entirely free to remove the offence of misleading the public and other clauses that threaten to do much harm.
Richard Ekins KC is Head of Policy Exchange’s Judicial Power Project and Professor of Law and Constitutional Government at the University of Oxford
