The statutory duty of candour will be familiar to health and social care providers, but until now, this duty has not extended to public authorities and officials. This will change with the enactment of the Public Office (Accountability) Bill, which is currently progressing through parliament and is expected to become law in 2026.
The Bill introduces a statutory duty of candour and assistance for public authorities, public officials and others with public responsibilities in their dealings with both statutory and non-statutory inquiries and coronial investigations. The duty requires public authorities and officials to act with candour, transparency and frankness in all dealings with inquiries, inquests and investigations. It also places a legal obligation on public bodies and their staff to provide information and evidence proactively, not only when compelled, but as a matter of course and without favouring their own position. Public bodies must also embed a professional duty of candour within their codes of ethics.
The duty also extends to organisations who provide public services under contract to public authorities, as well as private bodies with relevant health and safety responsibilities. The Bill therefore represents a significant expansion of the duty into the private sector.
New criminal offences
Failure to comply with the Bill will become a criminal offence, carrying sanctions including imprisonment. The Bill also introduces a new criminal offence of seriously improper, intentional or reckless misleading of the public. This offence is aimed at preventing the deliberate provision of false or misleading narratives to the press.
The common law offence of misconduct in public office will be replaced with two new offences that apply to public office holders:
- “Seriously Improper Acts” applies to public office holders who use their position to obtain a benefit or cause a detriment knowing their behaviour is seriously improper.
- “Breach of Duty to Prevent Death or Serious Injury” applies to public office holders with a duty to prevent harm, who intentionally or recklessly breach that duty, causing or risking critical harm. It will be a defence to show that there was a reasonable excuse for the act that led to the risk of critical harm. However, the decision-making process of authorities and public officials is going to be under great scrutiny.
Both offences carry significant periods of imprisonment.
Inquests and inquiries
The conduct of public authorities and their legal teams at inquests and inquiries will be governed by new statutory guidance, with clear routes for raising concerns about behaviour. The Bill extends public funding for legal representation for bereaved family members balanced by a requirement for public authorities to ensure that their own legal representation is necessary and proportionate. This measure aims to ensure greater parity in legal representation, so families are not shut out due to expense whilst authorities deploy legal teams at public expense.
Response
Organisations should now review their guidance, governance and investigation processes to ensure they are compliant in advance of the law coming into effect, before any critical incident occurs Organisations must also address the risk of internal conflict and the temptation for senior leaders to shift responsibility to avoid liability.
Giving you the full picture
At Tees, our regulatory experts can assist you should you require any advice on how the Hillsborough Law may affect your organisation. Contact us for help you reviewing your governance framework and preparing for compliance.
