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

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a. Login to your account at Login - HSLA
b. Navigate to Membership 2021 - HSLA
c. Select Invoice Me
d. An invoice will be emailed to the registered email address.
e. Pay invoice.
f. When you make BACS payment please quote the 'Transaction' number listed on the invoice.
g. After payment has been made, please email admin@hsla.org.uk stating your 'Transaction' number and when payment was made.

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