The “Hillsborough Law”: grounds for optimism?
September 18, 2025
By Louis Browne KC and David Illingworth
On 16 September, the Public Office (Accountability) Bill was introduced in the House of Commons. In our view, the Bill – if passed – has the potential to affect the way in which the state engages with the process of inquests and inquiries in three significant ways. It would impose a new duty of candour and assistance to the inquiry/inquest, backed with criminal sanctions. It would put the common law offence of misconduct in public office onto a statutory footing. And, of greatest practical significance, it will effectively remove the current financial barriers to families securing legal representation at inquests by providing legal aid without a means test.
The problem
As the Government’s fact sheet accompanying the Bill explains, the origins of this draft legislation are the Hillsborough disaster and the long journey undergone by survivors of that disaster to get the answers they deserved. The fact sheet calls out the following as examples of what went wrong during the 25 years it took “for an inquest to reach the right conclusion”:
“Police officers lying and changing witness statements to protect reputations;
Families bereaved by a major disaster facing an inquest process with no funding for legal representation – while public bodies were free to appoint multiple legal teams to protect their own interests;
Investigations undermined by a lack of a duty of candour.”
The solution
As clause 1(2) of the Bill explains, it has three main purposes which are reflected in the three primary Parts of the Bill:
1. Performance of public functions (Part 2):
a. A new “duty of candour and assistance” is imposed on public authorities and public officials. This requires officials to proactively engage with an inquiry or investigation (which includes an inquest, clause 8(1)) in line with a duty of candour set out in clause 2. In public inquiries, there is a presumption that the chair will ensure compliance with the duty of candour by ordering the provision of a position statement (clause 3), setting out the public body’s position on matters relevant to the inquiry (clause 8(1)). Position statements may also be ordered in inquests.
b. Failure to comply with the duty of candour and assistance will be a criminal offence (clause 5). It will also be an offence intentionally or recklessly to mislead the public by an act which the official knows, or ought to know, is “seriously improper” (this term is defined in detail at clause 11 but in summary it requires significant and repeated dishonesty, a significant departure from the professional standards to be expected and a likelihood of causing harm).
c. Every public authority shall be required to adopt a “code of ethical conduct” for its officials, to include ways in which the duty of candour and assistance will be complied with (clause 9). As the fact sheet makes clear, these statutory codes of ethics will be modelled on the well-established Nolan Principles.
2. Misconduct in public office (Part 3): the common law offence of misconduct in public office will be abolished (clause 16) and replaced by two statutory offences:
a. Seriously improper acts: this arises where an official uses the officer to obtain a benefit or to cause another person to suffer a detriment where they know, or ought to know, that doing so is “seriously improper” (clause 12). Whether the official’s conduct is seriously improper is an objective test, guided by statutory factors set out at clause 12(3).
b. Breach of duty to prevent death or serious injury: this offence is committed where an official commits an intentional or reckless breach of a duty to prevent, or prevent a risk of, another person suffering death or serious injury (clause 13). The breach must fall far below would could reasonably be expected of the person in the circumstances. Some of the statutory language mirrors the test which applies to institutions in the offence of corporate manslaughter.
3. Parity in inquiries and investigations (Part 4): buried in Schedule 6 is a provision which could have very significant positive implications for bereaved families and survivors. Where a public authority is an interested person in an inquest, bereaved family members will be eligible for legal aid, without a means test: clause 18(1)(e), Schedule 6 Part 4. Equally, public bodies will be under a duty to only instruct legal representatives at an inquest or inquiry insofar as necessary and proportionate to the issues involved, the extent of the public body’s obligations in the inquest or inquiry process, and the position of families in respect of their legal representation.
Comment
How the Bill will fare on its passage through Parliament remains to be seen. If passed, the Bill would put onto a firm statutory footing a range of duties and sanctions which have taken more nebulous form to date, identifiable only through a mix of common law offences, professional and regulatory obligations, guidance on best practice, rules of court and so on.
From a practical point of view, and based on our own experience of acting for bereaved families in inquests, the changes to the legal aid regime should deal, finally, with the significant inequality of arms between private individuals and the state at inquests. To date, it has been almost impossible for a bereaved family to secure legal aid at inquests other that in the most exceptional cases engaging Article 2, and recovery of inquest costs on a private basis through civil litigation has always been uncertain.
Even if some of the Bill’s more ambitious elements are pruned out at the Committee stage, it is to be hoped that the provision of the (relatively modest) funding required to help families engage fully in an inquest into the death of their loved one will be delivered once the Bill becomes an Act.
