This article was first published on Lexis®PSL Public Law analysis on 20 September 2016.
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The Divisional Court quashed the original inquests into the deaths of 95 people in the Hillsborough disaster as there were a number of features of the new evidence which cast new light on the circumstances in which the deceased met their end. Accordingly, fresh inquests were necessary.
Briefly, what prompted the Public Authority Accountability Bill?
What turned Hillsborough from a tragedy into an outrage was that following the disaster, public authorities ignored their responsibility to the public and rather than being honest and open about their failings, instead embarked on a campaign to distort the truth of what had happened and deflect the blame onto others, in this case the fans.
At the recent inquests, institutions such as the South Yorkshire Police (SYP) and the Yorkshire Ambulance Service (YAS) ignored previous apologies they had issued and continued to try to deflect blame onto others rather than acknowledging their own mistakes and shortcomings. This not only added many months to the length of time the inquests took but also it added significantly to the distress caused to the families of the victims of the disaster.
The public authorities let down the public they were there to serve on the day of the disaster and then added insult to injury by their conduct in the aftermath.
What are the key provisions in the Public Authority Accountability Bill?
- Section 1 of the Bill imposes a statutory duty on public authorities, servants and officials to act at all times in the public interest and with transparency, candour and frankness
- Section 2 requires public authorities to assist in court proceedings where their acts or omissions are or may be relevant—this would require them to make full disclosure of relevant documents and provide further information as ordered by a court or inquiry
- Section 8 makes these duties enforceable by court proceedings or by way of judicial review to the High Court
- Section 11 creates criminal offences where a public servant intentionally or recklessly misleads the public or court proceedings or any inquiry or investigation where the duty of candour arises
- Section 12 is intended to rectify the anomaly whereby a former public servant is under no obligation to assist a subsequent inquiry
How was the Bill compiled, and what influences did it draw upon?
The idea came from the families affected by the Hillsborough disaster and the behaviour of public authorities in its aftermath. Our job then was to translate their wishes into draft legislation. Most of the actual drafting was done by Pete Weatherby QC who led the legal team on behalf of 22 families at the Hillsborough inquests. Legal teams representing the other families were also consulted as to the contents of the proposed Bill. The Bill takes account of the duty of candour requirements in the context of healthcare (under regulation 20 of the Health and Social Care Act 2008 (Regulated Activities) Regulations 2014, SI 2014/2936, although our version is written in plain English and we trust therefore easier to understand. The draft takes full account of experience from other inquiries and also from other areas where similar problems appear to have occurred—eg, the Birmingham pub bombings and the police handling of the picketing of Orgreave during the 1984–85 miners’ strike.
What does the Public Authority Accountability Bill aim to achieve?
One of the key lessons that we learnt from the Hillsborough inquests is the importance of holding public authorities to account. There is a problem with a culture of institutional denial on part of public authorities, putting institutional interest before that of the public they are there to serve. The draft Bill aims to ensure that by requiring such authorities to act with transparency that in future we avoid the scandalous behaviour that we saw in the case of Hillsborough. Criminal sanctions will be available to give the Bill real teeth to deal with failure to act in accordance with the requirements laid down by the Bill.
How does the Bill fit in with other developments in this area—for instance, the Law Commission’s consultation on reforming misconduct in public office?
The draft Bill has some overlap with the work of the Law Commission on misconduct but goes much further and is primarily designed to change the culture of public institutions, provide enforcement tools to allow individual victims and bereaved families to obtain truth and justice and empowers the millions of public servants who are decent and honest to stand up and be counted.
What happens next?
We have submitted the draft and explanatory note to the government and it has been referred to the Bishop of Liverpool’s review of lessons from Hillsborough. We hope he will give it a forceful recommendation and then we will call on the government to advance it as part of their legislative programme as soon as possible with cross-party support.
Any other points of interest?
The Bill has its own website where visitors to the site can read the Bill itself together with a detailed explanatory note. There are also interviews with solicitor Elkan Abrahamson from Broudie Jackson Canter, who acted for 22 families and Pete Weatherby QC author of the draft Bill.
Mark George QC acted for 22 families in the recent Hillsborough Inquests alongside Pete Weatherby QC, Kate Stone and Andy Fitzpatrick also of Garden Court North Chambers and Henrietta Hill QC of Doughty Street. They were instructed by Broudie Jackson Canter (for 20 families) along with EAD Solicitors and Butcher & Barlow LLP who represented one family each.
Mark George QC is a highly experienced defence trial advocate and is regularly instructed in cases of murder, manslaughter, rape and other serious sexual offences. Mark undertakes inquests on behalf of bereaved families often following deaths in police or prison custody. He also represents interested parties at high profile inquests following controversial deaths and where substantial cross-examination of police officers is required.