The government has set a deadline of the next anniversary of the Hillsborough disaster, in April, to publish legislation creating a legal “duty of candour” requiring all public officials to tell the truth when it comes to court proceedings and public inquiries.
Those who have argued for a Hillsborough Law do so based on the awful experiences of the victims and their families, when 97 football fans died and many more were injured in the stadium disaster. Their grief was compounded by police attempting to shift the blame to the fans, followed by a cover-up and a failure by many public authorities to acknowledge their mistakes.
Separately, further failures and cover-ups have also been highlighted in other inquiries, including the Infected Blood Inquiry, which noted “institutional defensiveness” from both NHS and government.
“The danger in expanding the duty to encompass everyone is that the search for accountability can become a search for who to blame”
So how do we encourage greater transparency and accountability? Can legislation deliver a culture change and how will the duty be enforced? If the duty of candour becomes an insistence on speaking up, there are risks: as whistleblowers know all too well, they are rarely thanked for doing so and are often harmed or lose their jobs precisely because they were trying to tell the truth to those reluctant to listen.
From the institution to the person
The current duty of candour in the NHS applies to institutions rather than the individuals at the top of an organisation: it requires NHS trusts and other providers to be open and honest with people when things go wrong. This exists alongside individual professional duties held by doctors, nurses and other clinicians. Sir Rob Behrens, former parliamentary and health ombudsman, said, in evidence to the Thirlwall Inquiry (considering the Lucy Letby case) that an organisational approach was ineffective and the fines issued for breaches were too small, leading to managers continuing to prioritise their reputations, and those of the trust, over being open and honest.
Similarly in the police service, Bishop James Jones, in his report following the Hillsborough disaster, recommended as a minimum that a duty should be imposed on individual officers to cooperate with investigations and inquiries. So it is individuals holding public office – in the police, health service, local authorities or civil service – who should be held to account by a personal duty of candour.
A significant question is who this will apply to; the suggestion so far is that it would apply to all civil servants. The danger in expanding the duty to encompass everyone is that the search for accountability can become a search for who to blame. Senior civil servants must not be allowed to pass the buck down to junior staff for failing to flag concerns: those at the top of organisations need to remain ultimately accountable for the work of all their staff.
Who does the duty apply to and when?
The duty of candour may only bite during public inquiries or inquests, requiring officials to be honest about mistakes so lessons can be learned for the future. In Protect’s view, it would be a shame to limit the law to only improving organisations’ responses in the aftermath of disasters.
If we are to change the culture of organisations to really tackle “institutional defensiveness”, greater candour operating inside the civil service should try to stop disasters happening in the first place. We would like to see the duty applied to all staff at all times – encouraging all those inside organisations to highlight wrongdoing and small risks before they become disasters. Listening to staff gives the organisation the chance to take remedial action.
To achieve this, whistleblowing is key, and that means fostering a culture where challenge is acceptable. Unfortunately, the current evidence shows this culture is not present. Last year, the Public Accounts Committee said a “cultural change is needed to raise awareness and provide assurance on whistleblowing processes”, noting only half (52%) of civil servants surveyed thought it was safe to blow the whistle. Whistleblowers’ voices have not always been welcome. For example, DWP whistleblower Enrico La Rocca, who exposed how potentially thousands of carers ended up with unfair debts, has been told he cannot contribute to the final review.
However, this bill could be a starting point for creating a more trusted internal whistleblowing system in government. Speaking up, rather than being seen as challenge, could be seen as meeting a statutory duty. Staff also need an outlet when they identify wrongdoing but feel that no one in the department is listening. The case of FCDO whistleblower Josie Stewart, who lost her job for exposing the chaos and wrongdoing during the British withdrawal from Afghanistan to the press, is a clear example. Whistleblowing arrangements could be improved by the creation of an independent body for civil servants to take their concerns to; without this, whistleblowers will either raise their concerns via the media or, worse, stay silent.
Sanctions and enforcement
To be effective, the law should be enforceable. One approach came in an early version of the bill in 2017 that proposed unlimited fines and imprisonment if an official intentionally or recklessly fails to discharge their duty of candour. This is a blunt tool, and the criminal standard of proof is high, but it may be more effective than the existing system. The Nolan principles – which set the standards expected in public life for all civil servants, and include being honest and open – are not enforceable. The Civil Service Commission only makes non-binding recommendations following breaches of the civil service code, and often simply refers cases back to the department. However, legislation can have a deterrent effect: by analogy, we know that the current whistleblowing legal protections are weak but their existence has led to many employers putting good whistleblowing processes in place.
A culture change?
The duty of candour could herald a culture change in the civil service. The new law should have in its sights the idea that disasters can be prevented at an earlier stage if whistleblowers are listened to and ongoing openness, challenge and speaking up are welcome. Legislative change needs to come with improvements to internal whistleblowing culture in the civil service. The Cabinet Office should ensure every department has effective whistleblowing arrangements. An independent route to raise concerns outside of departments is vital. Good whistleblowing improves accountability, reducing the need for external inquiries when things go seriously wrong.
Elizabeth Gardiner is chief executive of whistleblowing charity Protect