Duty of Candour, truth, accountability, and learning from the past, Hillsborough, Grenfell and beyond

inquiries-act-2005

A presentation prepared by Pete Weatherby QC for the series of 3 events which HSLA hosted in Birmingham, Manchester and London regarding The Duty of Candour.

The problem

In disaster and controversial death cases the victims generally want three things:

Facts, accountability, prevention of recurrence.

Those ‘intheframe’, usually public authorities and officials, and private entities responsible for public safety, actdefensively to avoid responsibility and liability.

Culture of Denial and Institutional defensiveness

  • Lack of candour leads to historic miscarriages and damage to the Rule of Law
  • Recognised need for Duty of Candourin 2013 Francis Report, 2015 Harris Report, Morecambe Bay Report, Bishop’s Report into lessons of Hillsborough

Disparity with other jurisdictions

  • Criminal and civil cases require disclosure of case from both parties
  • No such duty in inquests and public inquiries

–Huge anomaly: former are gladiatorial combat and the latter are inquisitorial searches for the truth

–Public authorities ultimately have one mission: to further the public interest. Narrow personal and institutional defensiveness is anathema to that.  Candouris always in the public interest

Solutions

  • First base: recognise the problem
  • Voluntary: PAs sign the Bishop’s Charter
  • Enact new statute: Public Authorities (Accountability) Bill 2017
  • Not mutually exclusive but problems with first approach:

– Inherent reluctance to admit failure,

– Fear of liability, punishment, criticism, dismissal

– Lawyers understandably reluctant to advise clients to ‘own up’: might incur liability

– Insurance

– Consequences for individual employees if institution ‘throws them under the bus’

– Fiduciary duties

Public Authorities (Accountability) Bill 2017

  • Codifies legal duty and creates practical toolbox to ensure compliance
  • Requires full disclosure and proactive admissions through Position Statements
  • Applies duty to public authorities and officials and private entities responsible for public safety
  • Backstop sanctions for willful non-compliance

Pete Weatherby QC, Garden Court North Chambers