As part of the King's Speech, the new Government has committed to "take steps to help rebuild trust and foster respect". To achieve this, legislation will be brought forward to introduce a statutory 'duty of candour' on all public bodies and public servants.
In this briefing, we take a look at what is being proposed.
Duty of Candour
Currently, a statutory duty of candour applies to NHS providers, and there is a legal duty of candour that applies to parties in judicial review proceedings1. However there is no general legal duty of candour operating across the public sector (although there is no doubt an expectation derived from practice and principle that public bodies and public servants should be open and transparent in their work to ensure accountability).
Reports of recent public inquiries (namely the Bishop James Jones' report "The Patronising Disposition of Unaccountable Power" and Sir Brian Langstaff's report on the Infected Blood Inquiry) have exposed a need for greater transparency and accountability in public life.
Hillsborough Law
The new legislation, currently dubbed the "Hillsborough Law" after the investigations into the experiences of families affected by the Hillsborough disaster, will "address the unacceptable defensive culture prevalent across too much of the public sector" and ensure that "lack of candour uncovered in recent reports is not repeated".
In addition to the core aims of the legislation, the Briefing Note to the King's Speech indicates that the Government will "take action to improve assistance for bereaved persons and core participants at inquests and public inquiries". Of interest, the Government has also stated that the legislation will provide the "ability to enforce the right behaviours when things have gone wrong". It is not yet clear what enforcement mechanisms the Government intends to introduce.
More of the same?
For those public bodies and servants who are already providing full and frank disclosure in judicial review proceedings, it is unlikely that the statutory iteration of the duty of candour will impact disclosure requirements significantly. However, unlike other legislative priorities laid down in the King's Speech, the Hillsborough Law appears to be in its infancy, with no corresponding Bill published by Government. One key example is that there has been no indication by Government as to whether the codified duty will apply to public bodies, or personally to the civil servants working within them.
It is also unclear how a codified duty of candour will operate alongside the existing statutory duty of candour on NHS bodies, the duty of candour in disclosure in judicial review proceedings, as well as those broader values already expected of public servants such as the Civil Service Code and the Seven Principles of Public Life. Although the legislation as currently described appears to be an umbrella obligation, applying to the public sector at all times, it is difficult to envisage effective mechanisms to enforce such a duty.
[1] In judicial review proceedings, evidence is to be provided by defendant public bodies in accordance with the duty of candour, and requires public bodies and public servants to draw the court's attention to all information relevant to the issues in the case. The duty is important in the context of judicial review proceedings, as it negates the need to follow the ordinary Civil Procedure Rules requirements of standard disclosure. Instead, the court expects "frank disclosure" from a public body during proceedings.
The consequences of failing to comply with the duty of candour in public law proceedings are imposed at the court's discretion, and include adverse costs consequences, the grant of a disclosure order, the drawing of adverse inferences and (in particularly egregious failures) proceedings for contempt of court.
