The Hillsborough law: a duty of candour needs more than legislation to work

Trailed in Labour’s manifesto and the King’s Speech, Keir Starmer made the Hillsborough law a centrepiece of his first party conference speech as prime minister.   ¹⁹ Keir Starmer, ‘Keir Starmer’s speech at Labour Conference’, https://labour.org.uk/updates/press-releases/keir-starmer-speech-at-labour-party-conference-2024/

The law is expected to require public servants and authorities to act openly and transparently and to proactively assist investigations and inquiries into failures by the state. The specifics of the legislation are as yet unclear – and there are reports of disagreements between key campaigners and the government over how the bill stands.  ²⁰ Susie Boniface, ‘Hillsborough Law in chaos as PM cancels summit with families’ The Mirror, 27 March 2025, https://www.mirror.co.uk/news/politics/hillsborough-law-chaos-pm-cancels-34941331  But whatever the legislation – set to be introduced imminently – looks like, it can only be the first step. The duty may help improve how investigations are conducted, but meaningful cultural change will require a wider suite of interventions that incentivise candour and honesty as core tenets in public life.

The duty of candour could help resolve state failures before any inquiry is needed

Grenfell, infected blood, the Post Office, Hillsborough – many of the highest profile public inquiries have exposed a defensive culture geared more towards protecting institutional reputations than preventing avoidable harms. 

The introduction of a general duty of candour is an opportunity to address state failures long before a public inquiry is ever needed. One way that the duty could embed candour within organisations is by improving investigation processes when failures are first identified rather than simply at the inquiry end of the process. As Liz Gardiner, CEO of the whistleblowing organisation Protect, said: "If the duty of candour does what it should do, then we should have people doing much better internal investigations about what’s going wrong”.

Pete Weatherby, who led the team representing the Hillsborough families, explained how the law should include requirements for organisations to actively assist official investigations by providing an honest narrative of what did, or didn’t, happen. And with 20 public inquiries currently running or announced, such requirements will have an important role in making the process of conducting inquiries easier and more efficient.

It is impossible to legislate for culture change

It is easier to say that a new duty will “be the catalyst for a changed culture in the public sector” than to make it a reality.  ²¹ Keir Starmer, ‘Keir Starmer’s speech at Labour Conference’, https://labour.org.uk/updates/press-releases/keir-starmer-speech-at-labour-party-conference-2024/  A duty of candour has existed in the NHS for over a decade, requiring health and social care providers to be transparent with patients and their families, but it has not led to the desired culture change. Instead it has been compared to a ‘tick-box exercise’, a way to cover backs rather than building trust or learning from failures.  ²² Department of Health & Social Care, Findings of the call for evidence on the statutory duty of candour, 26 November 2024, https://www.gov.uk/government/publications/findings-of-the-call-for-evidence-on-the-statutory-duty-of-candour/findings-of-the-call-for-evidence-on-th…

Sir Robert Francis, whose report into failure at Mid Staffordshire hospital was the basis for the NHS duty, argued that candour is a hostage to leadership: good leaders will promote, expect and model candour, encouraging colleagues to reflect and learn from mistakes. But for bad leaders, tighter expectations around candour becomes a reason to start a blame game which reinforces the culture of fear and defensiveness. The legislation signals that the government is taking candour seriously, but the failure of the NHS duty of candour is a warning that legislation alone, especially if it creates another bureaucratic exercise, won’t achieve the Hillsborough law’s aims.

Duty of candour needs to be felt in the everyday life and work of public servants. If officials are to be truly incentivised to be candid, then there need to be much clearer whistleblowing routes where officials can raise concerns. The public interest disclosure rules also need to be much clearer and fairer for officials to navigate. This was shown by the case of Josie Stewart – who recently won an employment tribunal against the FCDO after she was dismissed for sharing information on how the evacuation from Afghanistan was handled in 2021.  ²³ Tevya Markson, ‘Ex-FCDO official wins ‘landmark’ whistleblowing case’, 19 February 2025, https://www.civilserviceworld.com/professions/article/josie-stewart-wins-landmark-civil-service-whistleblowing-case  Her case exposed the urgent need to revisit the tests for disclosure.

If the government wants to see meaningful cultural change, the Hillsborough law can only be the first step towards a wider suite of initiatives and reforms that can sow the seeds of real change.

Criminal sanctions alone will not embed candour

One of the more controversial elements of the bill is the inclusion of criminal sanctions as a backstop against wilful non-compliance. Criminal sanctions can be an important tool, and the duty needs to have sufficient power behind it – one of the criticisms of the existing NHS duty is that sanctions amount to “puny fines” that are imposed with little comment and, ultimately, little consequence.  ²⁴ Jonny Humphries, ‘NHS duty of candour “not working” - Letby inquiry’, 10 December 2024, https://www.bbc.co.uk/news/articles/c9q740wnvpno

But criminal sanctions alone will not have the desired effect, and their potential consequences must be well thought out. If punitive enforcement is routinely handed out it could embed – rather than challenge – the kind of bureaucratic process that has come to characterise the NHS duty. Worse still, sanctions could create perverse incentives where leaders seek to scapegoat more junior colleagues rather than to use failure as an opportunity to reflect and learn. 

For the duty of candour to initiate real culture change it needs to reach beyond public inquiries – to be seen and felt throughout the system. Public servants must be incentivised to be candid and encouraged by leaders to learn from mistakes. Legislation is a useful starting point, but it is not enough in itself. For real and substantial cultural change, the duty should be seized as a galvanising moment – it needs to bring an expectation that leaders model best practice and spur further initiatives, such as those around reforming public inquiries and public interest disclosures. And, crucially, culture change needs to be, driven from the very top of government. As Liz Gardiner told us: “A more open, more transparent, more accountable public life is a prize worth fighting for”.