The Public Office (Accountability) Bill: A new era for inquests, inquiries and public accountability

The Public Office (Accountability) Bill introduces important reforms to public sector accountability, establishing comprehensive duties of candour, criminal sanctions, and "parity of arms" provisions that will change how NHS bodies and local authorities operate during inquiries, inquests and investigations. 

Overview

The Bill gives effect to the Labour party’s 2024 manifesto promise to introduce a “Hillsborough Law”, aimed at preventing a repeat of the post-Hillsborough disaster injustices – referred to in the Explanatory Notes to the Bill as being the denigration of the deceased, the state’s failure to protect the victims of the disaster, the indefensible wait for the truth and the inequality of arms between the families of victims and public bodies. 

The Bill creates a legal duty of candour and assistance on public authorities and officials, requiring them to act with candour, transparency and frankness in their dealings with inquiries, inquests and other investigations. There are criminal sanctions for non-compliance. It introduces a new offence of misleading the public, and two further new offences relating to conduct whilst in public office. 

Perhaps most crucially, the Bill ensures that bereaved families are entitled to non-means tested legal aid at all inquests where a public authority is an interested person. It also places responsibilities upon public authorities to ensure their legal representation at inquests and inquiries is necessary and proportionate. We’ve explored these provisions in more detail below.

If you have any questions about the Bill or about inquiries and inquests in general, our Inquest and Public Law Partners, Charlotte Harpin and Ed Pollard, would be happy to help.

A new duty of candour and assistance

The Bill states that public authorities and public officials must at all times act with candour, transparency and frankness in their dealings with inquiries and investigations. An inquiry means either a statutory inquiry under the Inquiries Act 2005 or a non-statutory inquiry, and an investigation includes a coroner's inquest.

This "always on" duty operates through a two-stage process: 

1. Firstly, there is a proactive duty on a public authority or public official to notify an inquiry or investigation if they think their acts, or the information they hold, might be relevant.
2. Secondly, a public authority or official must provide all the assistance that they can reasonably give to help an inquiry or investigation meet its objectives, including providing relevant information, highlighting any information that is likely to be of particular significance, correcting any errors or omissions in information previously provided, providing a position statement and providing further information or clarification when requested. This obligation applies if and when a public authority or official is given a “compliance direction” by the person leading the inquiry or investigation.

When complying with the duty of candour and assistance, the public authority or official must act expeditiously and without favour to their own or another person's position

Where a public authority is subject to the duty of candour and assistance, the public official in charge of the authority (typically the Chief Executive) must take all reasonable steps to ensure the authority complies with the obligations. 

Who does the duty of candour and assistance apply to?

The duty of candour and assistance applies to “public authorities” and “public officials”. NHS bodies, which includes NHS England, integrated care boards, NHS trusts, NHS foundation trusts and local health boards, are specifically classified as "public authorities" under the Bill, as are local authorities. 

The duty extends to bodies that have or include functions of a public nature. Therefore, private healthcare organisations will be covered if they are providing care under NHS contracts. However, only the public functions will be in scope of the duty, and a private organisation could not be required to provide information about its private functions.

All employees of “public authorities” (which includes all NHS and local authority personnel) will be classified as "public officials" and the duty of candour and assistance will apply to them, including those who formerly, but no longer, hold such positions. 

The Bill extends the duty of candour and assistance to bodies or individuals who are not public authorities or officials but who had a "relevant public responsibility" in connection with an incident that is subject to an inquiry or investigation. Such a responsibility arises when a person had a health and safety responsibility in relation to the incident, or was a service provider to a public authority and provided a service that had a significant impact on the public.

For example, in a healthcare context, this could apply to contracted private companies that supply faulty medical devices or diagnostic equipment resulting in multiple patient injuries or deaths, or outsourced pathology services that make systemic errors. 

The Bill is silent on how, and if, the newly created duty of candour will interact with the existing duty of candour already imposed upon health and social care providers under the Health and Social Care Act 2008 (Regulated Activities) Regulations 2014.

Criminal offences

The Bill introduces several new criminal offences. A person will commit an offence if they fail to comply with the duty of candour and assistance in respect of an inquiry or investigation, and either intend to impede the inquiry or investigation or are reckless as to whether they will do so. Such an offence carries a maximum of a 2-year prison sentence and/or a fine.

The Bill introduces the offence of misleading the public, which applies where public authorities or officials act with intention to mislead the public (or are reckless as to that possibility) and they know, or ought to know, that their act is seriously improper. The offence does not apply to individual interactions and is not intended to apply to instances of an accidental or inadvertent misleading nature. Such an offence carries a maximum of a 2-year prison sentence and/or a fine.

The Bill also abolishes the common law offence of “misconduct in public office” and replaces it with two new statutory offences:

1. Seriously improper acts, and
2. Breach of duty to prevent death or serious injury.

Fundamental changes to legal representation at inquests and inquiries

The necessary and proportionate test

The “parity of arms” provisions represent perhaps the most significant operational change for NHS bodies and local authorities. The Bill imposes a duty on public authorities, who are subject to the duty of assistance in respect of an inquest, and who have been designated as an "interested person", to engage legal representatives only if necessary and proportionate. In determining this, the public authority should have particular regard to: 

1. The affected persons' means to engage legal representation;
2. The nature and extent of the authority's disclosure obligations; and
3. The importance of the issues under investigation and the need for those issues to be investigated fairly, proportionately, expeditiously and cost-effectively.

Similar provisions apply in respect of inquiries.

We are frequently instructed by NHS bodies, private organisations performing public functions and local authorities to represent them at inquests. We understand that our clients already carefully consider the need for legal representation in the context of the particular circumstances of each case.

What the Bill does is codify this consideration and imposes a statutory obligation to evaluate the necessity and proportionality of such representation, by reference to three specific criteria. Should this provision be implemented, it would be wise for in-house legal teams to formally document their assessment of the three statutory factors mentioned above when considering the issue of legal representation.

Expansion of legal aid for bereaved families

Presently, bereaved families must fund their own legal advocacy/representation at inquests, and legal aid is only available in specific situations – typically when Article 2 of the European Convention on Human Rights is engaged in an inquest. The Bill expands non-means tested legal aid for bereaved families and provides for such funding to be available in every inquest where a public authority is named an "interested person".

This expansion will have some practical implications for how public authorities approach the question of legal representation. If families have automatic access to legal aid once a public authority is an interested person, authorities may be more likely to conclude that instructing their own representation is "necessary and proportionate" in order to ensure balanced proceedings.

It will be important for public authorities to continue assessing each case on its individual merits, rather than defaulting to legal representation simply because families are legally represented, to ensure the Bill's objectives around proportionate use of legal resources are achieved.

Conduct at inquests and inquiries

The Bill also introduces a duty on the public authority to ensure that their legal representatives are complying with expected standards of conduct at inquiries and inquests. Further, the Bill enables a senior coroner or the chair of an inquiry to raise concerns over the conduct of a public authority or its legal representatives during an inquest or inquiry, with any person or organisation that is subject to such a report required to make a written response to it.

New ethical conduct requirements

The Bill places an obligation on public authorities to promote and maintain high standards of ethical conduct by people who work for the authority. Public authorities will be required to adopt a code of ethical conduct, which will need to be published, and must ensure staff are aware of the code and the consequences for failing to act in accordance with it.

The code must set expectations for candour, explain practical ways in which the standards in the code can be met, outline disciplinary consequences for failing to act in accordance with the code, and promote ethical conduct, candour, transparency and frankness throughout the organisation.

Timescales and preparing for change

The Bill has had its first reading in Parliament, but it still faces several stages and possible amendments before becoming law. However, given the Bill was included in the Labour party's manifesto, the government will likely aim to advance it quickly. 

For NHS Trusts and local authorities that regularly participate in inquests, the Bill in its current form would introduce significant formal requirements on processes that may already be governed internally by established organisational policies or ‘standard operating procedures’.

The combination of an "always on" duty of candour, codification of considerations regarding legal representation, and automatic legal aid for families will require thoughtful adaptation or formalisation of current practices. Equally, the emphasis throughout the Bill on transparency and candour reflects principles that align with the values that should already be embedded into health and social care practice.