Hillsborough Law: Duty of Candour and Equality of Arms — INQUEST Written Evidence to JCHR

Written evidence from

INQUEST

(VAPB001

7

)

INQUEST is the only charity providing expertise on state related deaths and their investigation. For four decades, INQUEST has

provided expertise to bereaved people, lawyers, advice and support agencies, the media, and parliamentarians. Our specialist casework includes deaths in prison and police custody, immigration detention, mental health settings and deaths involving multi-age

ncy failings or where wider issues of state and corporate accountability are in question such as the Hillsborough disaster or Grenfell Tower fire.

This submission concerns Part 2 of the Victims and Prisoners Bill. Part 2 of the Bill would establish an Ind

ependent Public Advocate to provide support to the bereaved or injured following a major incident.

[1]

The Bill would amend the Coroners and Justice Act 2009 to make the advocate an Interested Person at an inquest.

This submission builds on an INQUEST, JUST

ICE and Hillsborough Law Now briefing on the Victims and Prisoners Bill and a joint INQUEST and JUSTICE briefing on the Police, Crime, Sentencing and Courts Act.

[2]

JUSTICE and the Hillsborough Law Now

c

ampaign share many of INQUEST’s concerns that the current provisions in Part 2 of this Bill do not go far enough to improve the treatment of victims and bereaved people following a major incident.

Hillsborough Lawthe duty of candour and equality of arms

We believe Part 2 of this Bill is a missed opportunity to introduce Hillsborough Law, also known as the Public Authority

(

Accountability

)

Bill, into legislation and fulfil the legacy project of Hillsborough families.

Hillsborough Law, when first introdu

ced to Parliament in 2017, was supported by all the represented Hillsborough families and sponsored by a group of cross-party MPs. Hillsborough Law contains,

inter alia

, provisions for a statutory duty of candour and equality of arms for bereaved people at

inquests and

public

inquiries

. Implementing these provisions

will

go some way to

address

ing

the long-standing concerns of bereaved families following

major incidents and

state-related deaths.

[3]

Duty of candour

Hillsborough Law would establish a duty of

candour: a codified requirement on public servants, public authorities and corporations to act in the public interest and proactively and truthfully assist investigations, inquests and inquiries of all official kinds, at the earliest possible point, includ

ing by the disclosure of all relevant documentation and position statements in which they must set out their narrative of what happened and what went wrong.

[4]

Duty of candour obligations would be the most effective way to end evasive and obstructive practi

ces following contentious deaths.

Institutional defensiveness has been found to be a pervasive issue in inquests and public inquiries.

For example, it

causes additional suffering to bereaved

families.

JUSTICE’s

2020

report

When Things Go Wrong

found

that

in both inquests and inquiries, “lack of candour and institutional defensiveness on the part of State and corporate interested persons and core participants are invariably cited as a cause of further suffering and a barrier to accountability”.

[5]

In his Gov

ernment commissioned report on the experiences of the Hillsborough families, the Right Reverend James Jones KBE concluded that South Yorkshire Police’s “repeated failure to fully and unequivocally accept the findings of independent inquiries and reviews ha

s undoubtedly caused pain to the bereaved families”.

[6]

Lack of candour also frustrates the fundamental purpose of inquests and inquiries: to reach the truth and learn from mistakes so that similar tragedies do not occur in the future. Previous

examples have shown how public bodies, such as the police, have consistently approached inquests and inquiries as if they were litigation, failing to make admissions and often failing to fully disclose the extent of their knowledge surrounding fatal events

. For example, the South Yorkshire Police have been repeatedly criticised for their institutional defensiveness in respect of the 1989 Hillsborough disaster.

[7]

By compelling co-operation, a statutory duty of candour would enable inquests and inquiries to f

ulfil their function of reaching the truth

in order to

make pertinent recommendations which address what went wrong and identify learning for the future.

Failure to make full disclosure and act with transparency can also lead to lengthy delays as the

investigation or inquiry grapples with identifying and resolving the issues in dispute, at cost to public funds and public safety. A recent example is the Daniel Morgan Independent Panel, which was refused proper access to the Home Office Large Major Enqui

ry System (HOLMES) by the M

etropolitan

P

olice Service

over seven years. The lengthy negotiations with the MPS about the Panel’s access led to “major delays to the Panel’s work”. These delays added to the Panel’s costs and furthered unnecessary distress to

the family of Daniel Morgan.

[8]

A statutory duty of candour would significantly enhance the participation of bereaved people and survivors by ensuring that a public body’s position was clear from the outset, limiting the possibility of evasiveness. The duty

would also direct the investigation to the most important matters at an early stage. This would strengthen the ability of the inquiry or investigation to reach the truth, and to do so without undue delay.

Establishing a statutory duty of candour would g

o some way to addressing the above issues

.

[9]

Support for a statutory duty of candour has come from

Robert Francis KC

, Dame Elish Angiolini

and the Right Reverend James Jones

, among others

.

[10]

Equality of arms

Hillsborough Law also provides that there should be public funding for legal representation to put

bereaved families

on a level playing field with state

or private

bodies, which INQUEST believe

s

is crucial to enabling proper support for bereaved people fol

lowing

a

major incident. Section 4 of Hillsborough Law states that “with respect to inquests and public inquiries” where one or more public authority or private entity is designated as “interested person

s

”, bereaved

interested persons

will be entitled to

p

ublicly funded

legal assistance and representation.

[11]

While the Government have recently made positive reforms to the legal aid system

for inquests,

[12]

these changes only apply to cases which meet

, or are likely to meet,

the

threshold for breaching Article 2 (the right to life) of the Human Rights Act. Many key findings on the conduct of state bodies arise from cases in which Article 2 may not be arguable, such as in the following cases:

healthcare-related deaths in

deten

tion;

self-inflicted deaths of voluntary patients in mental health settings or under the direct care of a mental health trust in the

community;

deaths in supported accommodation or in care settings where the person has been placed by a public body or local

authority;

armed forces veteran suicides involving both mental health trusts and the Ministry of Defence.

The above cases would not benefit

from the Government’s changes to legal aid and many of the families involved in these cases

may

still have to pay out of pocket for their legal representation, crowd-fund, or go unrepresented.

[13]

The provisions in Hillsborough Law would provide equality of

arms by ensuring that all bereaved families at inquests where the state is represented or involved are publicly funded for their legal representation.

Independence and Ministerial discretion

Concerningly, clause 24 of the Victims and Prisoners Bill does no

t require the Secretary of State to appoint an advocate. Rather, the Secretary of State “may”

do this.

[14]

Without a duty on the Secretary of State to always appoint an advocate, some bereaved families may receive additional support which other families are not entitled to, worsening the inconsistencies which already exist in the post-death investigation syste

m.

[15]

For the advocate post to be effective, it should be a mandatory appointment

with the duties and functions of the advocate arising in the event of a major disaster, rather than at the discretion of the Secretary of State

. In the draft of the Public Adv

ocate and Accountability Bill, the Lord Chancellor would be required to appoint an advocate.

[16]

Further, clauses 24 to 26 of the Bill provide unfettered discretion on the Secretary of State not only on whether to appoint an advocate following a major disa

ster but also on who the advocate is and how they would be resourced. This removes any

semblance of independence of the advocate who is instructed by, and answers to, the Secretary of State and not those most affected. The issue of independence is a centra

l concern for many of the families INQUEST works with.

It is crucial that support provided to families is operationally and functionally independent of Government to allay families’ concerns of coverups, collusion and evasive practices. The Public Advocate

and Accountability Bill provides that while the advocate would sit within the Ministry of Justice for administrative purposes, it would be independent with respect to its functioning and decision making.

[17]

INQUEST is concerned by clause 29

of the Bill

o

n the reporting process for the advocate.

[18]

This clause states that the Secretary of State can require the advocate to produce a report on the investigation processes, but that the report can be redacted by the Secretary of State on public interest grounds

. Again, this provision undermines the independence and transparency of the advocate’s role. Further, INQUEST noted in its response to the 2018 consultation that the advocate could have an important role in monitoring and accumulating learning from familie

s’ experiences at inquiries, with a view to reporting best practice to the Government and improving the inquiry process. This is not a stated function of the advocate as per the Bill which we believe is a missed opportunity. In the draft Public Advocate an

d Accountability Bill, the advocate is required to provide periodic reports to the Lord Chancellor which are then laid before Parliament.

[19]

Duplication of the advocate’s role with that of legal representatives

INQUEST have previously raised concerns regard

ing the establishment of an independent public advocate during the Government consultation in 2018.

[20]

Most notably, we raised concerns that the advocate, instructed by the Secretary of State, may encroach on the role of legal representatives acting for ber

eaved people during investigations,

inquests

and inquiries. We are therefore pleased to see that the Bill expressly prohibits the advocate from providing the functions of a legal representative, including providing legal advice to bereaved people.

[21]

Howeve

r, the importance of families being given information about their rights and signposted to independent specialist legal advice cannot be overstated.

We believe the provisions relating to the advocate to be weak. Clause 27 sets out the functions of the ad

vocate, which include providing information, communicating with authorities, signposting victims to other sources of support and assisting in the access of documentation. However, the Bill does not give the advocate any powers, in particular the power to r

equire the production of documentation, and there is no duty on public authorities, public

servants

or others to assist the advocate in any way. There is therefore nothing in the Bill which would provide the advocate with powers to compel disclosure or pre

vent cover-ups, which were significant failures in the Hillsborough investigations which these provisions ostensibly seek to address.

Further, given the weak set of functions the Bill provides an advocate may perform, we are unconvinced by the need, as set out in clause 28, for the advocate to be made an Interested Person at an inquest through amendment to the Coroners and Justice Act 20

09. An inquest is a legal process which takes place in a court. Bereaved people should be represented by specialist lawyers, not a legally untrained person who is expressly prohibited by statute from providing legal services. It is unclear what added value

an advocate would bring to inquests as an Interested Person given that legal representatives already have powers to facilitate engagement with the legal process by, for example, requesting documentation and asking questions of witnesses. There is also a c

oncern that granting an advocate Interested Person status may prevent a coroner or inquiry chair from granting the same status to bereaved families if it is believed they are already represented. To avoid duplication and further confusion, there must be gr

eater clarification on the exact role of the advocate, particularly on what role they would add as another Interested Person at an inquest that a legal representative couldn’t perform.

24/07/2023

6

[1]

A major incident is defined

in the Victims and Prisoners Bill 2023

as one which occurs in England and Wales and is on a similar scale to the Hillsborough disaster or Grenfell Tower Fire.Â

[2]

INQUEST, Hillsborough Law Now & JUSTICE, Victims and Prisoners Bill 2023 Briefing for Second Reading House of Commons,

https://www.inquest.org.uk/Hand

lers/Download.ashx?IDMF=bcd2242d-a110-42ab-9fe3-ca9d7a2917e3

, May 2023

; JUSTICE & INQUEST, Police, Crime, Sentencing and Courts Bill Amendment 71 – Accountability of public authorities: duties on police workforce Hous

e of Commons,

https://www.inquest.org.uk/Handlers/Download.ashx?IDMF=bcd2242d-a110-42ab-9fe3-ca9d7a2917e3

, Febru

ary 2022Â

[3]

INQUEST, INQUEST report of the Family Listening Day held to support the Rt. Rev Bishop James Jones’ Review of the Hillsborough Families’ Experiences,

https://www.inquest.org.uk/Handlers/Download.ashx?IDMF=cfef2529-cebb-4620-8694-b9b8cbf0a804

,

April 2017

[4]

Public Authority (Accountability) Bill, Section 1,

https://static1.squarespace.com/static/62ee678459ae172e320832e3/t/6453941180a7c64e5872f752/1683198993769/PA%28A%29B+2017%5B28%5D+copy.pdf

Â

[5]

JUSTICE, When Things Go Wrong,

https://files.justice.org.uk/wp-content/uploads/2020/08/06165913/When-Things-Go-Wr

ong.pdf

, 2020

[6]

The Rt Rev Bishop James Jones KBE, ‘The patronising disposition of unaccountable power’: A report to ensure the pain and suffering of the Hillsborough families is not repeated,

https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/656130/6_3860_H

O_Hillsborough_Report_2017_FINAL_updated.pdf

, November 2017

[7]

A 1989 briefing within the Prime Minister’s office on the Interim Taylor Report into the Hillsborough disaster noted that “senior officers involved sought

to duck all responsibility when giving evidence to the Inquiry”, that the “defensive – and at times close to deceitful – behaviour by the senior officers in South Yorkshire sounds depressingly familiar” and that “[t]oo many senior policemen seem to lack th

e capacity or character to perceive and admit faults in their organisation”

,

Hillsborough Independent Panel, ‘The Report of the Hillsborough Independent Panel’,

https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/229038/0581.pdf

, September 2012

[8]

The Report of the Daniel Morgan Independent Panel,

https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/993985/_HC_11-III__-_The_Report_of_the_Daniel_Morgan_Independent_Panel__Volume_3_.pdf

, June

2021

[9]

INQUEST supports the amendment (New Clause 3) put forward by Labour MP Anna McMorrin to

Committee Stage of

the Victims and Prisoners Bill which would require public authorities and public servants and officials to act in the public interest and with

transparency, candour and frankness when carrying out their duties in relation to major incidents,

https://publication

s.parliament.uk/pa/bills/cbill/58-03/0286/PBC286_VictimsandPrisoners_1st-12th_Compilation_06_07_2023.pdf

[10]

For a

complete

list of

reports which have recommended the Government establish a duty of candour, see INQUEST, Hillsborough Law Now and JUSTICE’s briefing for second reading of the Victims and Prisoners Bill,

https://www.inquest.org.uk/Handlers/Download.ashx?IDMF=bcd2242d-a110-42ab-9fe3-ca9d7a2917e3

[11]

Public Authority (Accountability) Bill, Section 4,

https://static1.squarespace.com/static/62ee678459ae172e320832e3/t/6453941180a7c64e5872f752/1683198993769/PA%28A%29B+2017%5B28%5D+copy.pdf

[12]

The Government have recently made two significant reforms to the funding criteria for bereaved families during inquests. Firstly

in January 2022

the rules for Exceptional Case Funding (ECF) for inquests were changed to remove the means test. This

positive move means

bereaved people facing Article 2 inquests

will no

longer face an

intrusive and protracted means te

st

application

process. It

will

make funding available to more families who

previously

faced paying huge costs towards

legal representation. Following this, in May 2023

the Government announced

it would also be removing the means test for legal help for inquests involving a potential breach of rights under the ECHR (within the meaning of the Human Rights Act 1998) or wh

ere there is likely to be a significant wider public interest in the individual being represented at the inquest.

[13]

For more information on the cases and bereaved families excluded from legal aid at inquests, see INQUEST’s briefing on funding for the Judi

cial Review and Courts Act,

https://www.inquest.org.uk/Handlers/Download.ashx?IDMF=fb58abc4-3f60-4782-8e14-a88095a9f2f6

, October 2021

[14]

Victims and Prisoners Bill, Clause 24, (1)

[15]

See Justice Select Committee report on The Coroner Service,

https://committees.parliament.uk/pub

lications/6079/documents/75085/default/

, May 2021

[16]

Hillsborough Law Now have previously worked to incorporate the proposal for an independent public advocate with the Public Authority Accountability Bill 2017 into a combined Bill,

the

Public Advocate and Accountability Bill, which is available to read alon

gside the original Bill on the

Hillsborough Law Now

website

https://hillsboroughlawnow.org/what-we-do

[17]

HLNC, Public Advocate and Accountability Bill,

https://hillsboroughlawnow.org/what-we-do

[18]

We note that a clear majority of respondents to the Government’s consultation on the Independent Public Advocate were in favour

of the Advocate having a reporting function, see page four of Ministry of Justice, Establishing an Independent Public Advocate Summary of Consultation Responses,

https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/1139506/public-advocate-feedback.pdf

[19]

HLNC, Public Advocate and Accountability Bill, Part 1, (5),

https://hillsboroughlawnow.org/what-we-do

[20]

INQUEST response to the Ministry of Justice Consultation

on establishing an Independent Public Advocate, December 2018,

https://www.inquest.org.uk/Handlers/Download.ashx?IDMF=e6b5711b-a3d2-4734-a737-799bc46a7

84d

.

We note that while the Government’s consultation on the Independent Public Advocate was held from September to December 2018, its response to the consultation was only published on 1 March 2023, less than a month

before the Victims and Prisoners Bill was published.

[21]

Victims and Prisoners Bill, Clause 27 (6) (a), (b) and (8)