Legal spotlight

The government’s recently published Public Office (Accountability) Bill imposes a legal duty on public authorities and public officials to act with candour, transparency and frankness. Reckless or intentional failure to do so will be a criminal offence, as will the most serious instances of misleading the public. 

The Bill comes after the experiences of the families of those killed and injured at the 1989 tragedy at Hillsborough Stadium in Sheffield, when 97 Liverpool fans lost their lives. It was originally proposed as part of the Reverend James Jones’ report in 2017 into those experiences to address the “culture of institutional defensiveness” uncovered, with South Yorkshire police found to have engaged in an attempt to cover up their negligence.  

The new legal duty of candour, known as the "duty of candour and assistance", will require public authorities and public officials to make full disclosure of all relevant information relating to an incident, highlighting anything which might be of particular significance to an inquiry or investigation from the outset and throughout. The public authority must act without favour to their own position and ensure the correction of information previously given where errors are later identified. 

While primarily focused on the public sector, the new duty of candour and assistance will also extend to anyone (including an organisation in the private sector) with “relevant public responsibility”. That means anyone delivering public functions; those with relevant health and safety responsibility as well as relevant public sector contractors. They will be relevant where their activities are carried out under a contract with the public authority and had a "significant impact on members of the public". The challenge will be to see how this impact is determined. 

Reckless or intentional failure to comply with the duty of candour and assistance will be a criminal offence punishable by an unlimited fine and/or up to two years imprisonment. 

The Bill also introduces a new offence where a public authority or public official intentionally or recklessly misleads the public, with criminal liability for the most egregious breaches. 

The current common law offence of misconduct in public office will also be replaced by two new statutory offences. These new offences are intended to provide greater certainty as to who is a “public office holder” for the purposes of the offences and what type of conduct is captured, “ensuring that those who abuse their position or fall short of the behaviour expected of those who hold public office will continue to face serious sanctions”, including imprisonment. They do not widen or significantly change the scope of the current common law offence, or the type of conduct it captures.

The Bill also aims to ensure equality of arms at inquests and inquiries by placing a duty on public authorities to ensure their legal spend is always proportionate, engaging legal representation only where necessary in the circumstances, as well as providing legal aid for bereaved families at inquests. New guidance will be issued setting out "clear expectations .... on how state bodies and their representatives should participate at inquests….(to)… ensure the state conducts itself with openness and honesty and acts with the sole purpose of helping the coroner establish the facts of the case to deliver answers for victims and their families."

Whilst the aims of the new legislation are to be applauded, questions remain, including how the obligations in the Bill will sit with existing obligations in other legislation, as well as the steps to be taken to uncover relevant materials. The new guidance anticipated by the Bill is intended “to guide the conduct and behaviour of public authorities and their legal representatives at inquests and inquiries”.  That guidance will be awaited with interest.

Kevin Bridges is a partner and head of health and safety at Pinsent Masons. For more information, visit www.pinsentmasons.com