Third Report - Human rights and the proposal for a “Hillsborough Law”

We welcome the Government’s signing of the Hillsborough Charter and its commitment to honesty and transparency in the public sector, features that can only benefit the protection of human rights. (Paragraph 17) A Duty of Candour

“Institutional defensiveness” appears to remain a problem for public authorities, particularly when they are involved in public inquiries and inquests. This hinders efforts to establish the truth when things go wrong and stands in the way of fulfilling the State’s investigative obligations under Article 2 and Article 3 ECHR.

Introducing criminal sanctions for breach of a duty of candour may increase the prospect of the duty being taken seriously, offering greater external mechanisms to pursue public institutions that fail to comply. However, including criminal offences on the statute book is not alone sufficient to ensure compliance. Effective enforcement in practice, together with wider efforts to support culture change within the public sector, are also needed if the transparency and openness sought by the Hillsborough Law is to be established.

Given the importance of transparency, including criminal sanctions in any statutory duty of candour appears justified, but the right not to self-incriminate, protected at common law and under Article 6 ECHR, must also be respected.

While taking a step in the right direction, the current provisions of the Criminal Justice Bill do not offer the same opportunity for change as would a general statutory duty of candour. By focusing on the police alone and appearing to rely on internal disciplinary processes for enforcement, the Criminal Justice Bill would not meet the calls of the Hillsborough Law Now campaign.

A general statutory duty of candour would help to ensure that the priority for public bodies is to establish what has gone wrong and needs to be changed in order to prevent future deaths, rather than protecting individuals and institutions from censure. It would also help inquiries become more effective and less protracted, benefiting the bereaved and survivors, and thus fulfilling the UK’s obligations under Articles 2 and 3 ECHR.

A variety of existing laws and guidance require openness from public authorities and cooperation with official investigations and inquiries. This patchwork demonstrates longstanding recognition that openness and transparency from public authorities is of real importance. Yet from the evidence we have received, it is far from clear that existing duties of candour are operating to ensure this openness and transparency.

The Government should consider introducing a statutory duty of candour and extend it to all public authorities, as called for in the Hillsborough Law. (Paragraph 71) Human rights and the proposal for a “Hillsborough Law” 29 Legal Representation and the inequality of arms

The Joint Committee on Human Rights has previously called for families involved in inquisitorial inquests to be “given non-means tested funding for legal representation at inquests where the state has separate representation for one or more interested persons”. We welcome the removal of means testing for ECF and legal help at inquests and recent statutory inquiries providing non-means tested funding to families. However, the evidence we have considered indicates that there remains a real risk of inequality of arms in terms of access to legal advice and representation between the public bodies and officials appearing before an inquest or inquiry and bereaved families.

Inequality between the State and bereaved families hinders the effective involvement of families in the inquest process, as may be required by Article 2 ECHR. By leaving the process unequal, it may also damage the ability of inquests to get to the truth of events and provide an opportunity for lessons to be learned to prevent future tragedies and loss of life.

We urge the Government to take steps to ensure that families receive proportionate legal representation at inquests and inquiries whenever the state has its own representation. If a consultation on the extension of legal aid in inquests that follow public disasters is considered necessary, it should be launched at the earliest opportunity. While seeking to reduce the spending of public authorities on legal representation inquest may be appropriate, Government must be careful not to simply reduce the quality of representation overall, as this risks damaging the ability of inquests to serve their statutory and Article 2 ECHR purpose. (Paragraph 90) Independent Public Advocate

We welcome the creation of the roles of the standing and incident specific advocates for victims of major incidents. If implemented correctly, the advocates who fulfil those roles will provide crucial help to victims navigating the often daunting maze of rules and procedures that follow major incidents.

We are particularly pleased that the Government has recognised the importance of a speedy response to any major incident and amended the Victims and Prisoners Bill to include a standing advocate. We consider it crucial that the appointment of a standing advocate is not delayed once the Victims and Prisoners Bill becomes law. The Minister should provide an explanation to the Joint Committee on Human Rights and the Justice Select Committee if no standing advocate is appointed within three months of the Bill gaining Royal Assent.

We also remain concerned that there may be a delay in the appointment of individual public advocates following major incidents, when it appears to remain their role to provide support directly to victims and bereaved family members. This could result in a gap in the support given in the immediate aftermath of such tragedies. We urge the Government to take steps to ensure that no such gap occurs. The Government should consider providing an undertaking that if an advocate is not appointed in 30 Human rights and the proposal for a “Hillsborough Law” respect of a major incident within 72 hours of that incident taking place, the Minister will attend before Parliament to explain this delay and will do so on a weekly basis until an appointment takes place. (Paragraph 101) Human rights and the proposal for a “Hillsborough Law” 31