Posted by Nick Henderson-Mayo, head of compliance at Legal Futures Associate VinciWorks [1]
Henderson-Mayo: Duty of candour changes calculation for solicitors
Now that Andy Burnham has become prime minister, the Public Office (Accountability) Bill [2], otherwise known as the Hillsborough Law, will receive a real boost of political capital.
For Andy Burnham, imposing a duty of candour during inquests and inquiries is one of the defining threads of his political career. For solicitors, the law could massively complicate working with public sector clients and potentially throw privilege under a burning media glare.
The bill passed through the House of Commons last week as one of Sir Keir Starmer’s final acts and Andy Burnham gave a speech describing it as “some legacy” for the man he was replacing. It now heads to the House of Lords in September.
In 2009, as then culture secretary under Gordon Brown, Andy Burnham was heckled and jeered at the 20th anniversary of the 1989 Hillsborough disaster.
That began his commitment to the Justice for the 96 [3] campaign and the Hillsborough Independent Panel was announced by the government later that year. When the report was finally released in 2012, Prime Minister David Cameron singled out Mr Burnham’s role [4] in ensuring nearly half a million pages of evidence were released to the public.
As shadow home secretary, he called for legislative reform and, as mayor of Manchester, he warned against watering down the duty of candour [5], a core part of the law and backed by criminal sanction.
It’s without question that victims of Hillsborough and their families were horrendously let down through a catalogue of public-sector wrongdoing. The Hillsborough Law will apply broadly, all across the public sector.
As Britain says goodbye to the lawyerly Keir Starmer, it’s worth considering how the wider legal profession may be impacted by a law likely to be cast as a defining legacy of both men.
What does the Hillsborough Law do?
The Public Office (Accountability) Bill will directly impact legal teams that advise public bodies, represent them at inquests, conduct internal investigations, assert privilege, manage disclosure and shape institutional responses after serious failures.
At the core is a new duty of candour and assistance. Public authorities and officials would be expected to act truthfully, accurately and helpfully when engaging with inquiries, inquests and external investigations.
The duty is intended to be proactive. Organisations would be expected to identify and disclose relevant information themselves, rather than waiting for a coroner, inquiry chair or family representative to prise it out of them.
The bill also changes the dynamics of inquests. Bereaved families would have wider access to non-means-tested legal aid when a public authority is an interested person. Public authorities would need to justify that their own legal representation is necessary and proportionate.
For solicitors, the uncomfortable question is whether traditional legal risk management will still be acceptable where it appears to frustrate candour. When disaster or tragedy strikes, those questions may need to be considered under a harsh public and political spotlight.
The privilege problem
Understandly so, the political mood behind the Hillsborough Law is hostile to institutional defensiveness. It deliberately seeks to frustrate evasiveness and pressure public bodies spending public money on legal strategies that appear designed to limit accountability.
That doesn’t stop a client at the heart of a future inquiry asserting privilege or require public bodies and their representatives to waive their right to legal counsel. Nothing in the text of the legislation does that.
But the statutory duty of candour changes the environment in which privilege is asserted.
The exercise of that right could come under serious scrutiny itself and be much harder to treat as routine.
Imagine a university is involved in an inquest following a student death. Its lawyers are instructed immediately. An internal review is commissioned. Staff emails, welfare records, safeguarding notes and missed escalation warnings are gathered and analysed.
Under the old instinctive approach, the institution might try to contain the disclosure exercise, keep the internal review privileged, disclose only what is formally requested and avoid creating unnecessary admissions or broader implications.
It’s a delicate but ultimately legitimate balance to find the facts of an incident whilst considering the wider reputational impact. Institutions do not shut down when there is an incident or failure.
But under a Hillsborough Law duty of candour, that standard approach could become a risk in itself.
The university may be expected to identify relevant material proactively, explain what it has searched for, justify what it has withheld and demonstrate that privilege has not been used to suppress facts, regardless of the wider circumstances or other duties to act within the best interests of the institution.
That is where solicitors face the hard question. Is the firm helping the client comply with candour, represent the best interests of the client, or stage manage a potential media circus?
We’ve seen these kinds of difficult situations arise before. In the Infected Blood Inquiry, the Department of Health and the Medicines and Healthcare products Regulatory Agency waived legal professional privilege for documents requested by the inquiry.
Chair Sir Brian Langstaff welcomed the decision [6] and said other public bodies should carefully consider doing the same. Those that did not, he warned, would be “conspicuous”.
Similarly, fallout from the Post Office Horizon scandal has seen the Solicitors Regulation Authority warn firms against [7] the improper application of privilege to protect communications from disclosure.
Whilst privilege faces scrutiny, it is also the foundational principle of fair legal representation and fundamental to a fair hearing for all parties.
Public inquiries and national scandals are already some of the most difficult tests law firms face in modern Britain, and the proposed Hillsborough Law raises legitimate concerns around how justice is administered within such contexts.
Bereaved families deserve honest answers from responsible parties and appropriate legal sanction if things were not done right. That’s exactly what solicitors on all sides of these situations seek to achieve.
Yet no one is served if an inquiry or inquest becomes a media circus, least of all the families affected. Andy Burnham might not be a lawyer, but he should heed the concerns of the profession.