The Hillsborough Law Bill, Part 2: Litigating the…

In a recent Landmark Chambers webinar, Fiona Scolding KC, Chris Jacobs, Natasha Jackson and Claudia Hyde provided an overview of the Public Office (Accountability) Bill, a significant piece of legislation which proposes to introduce a new duty on public authorities and public officials to act with candour, transparency and frankness, as well as wide-ranging enforcement mechanisms.

This article provides an overview of the existing duty of candour, considers how the proposed duty compares to the common law position, and offers practical guidance for those seeking to litigate or rely upon the new duty. It concludes with a brief examination of the scope questions that arise in relation to privilege, public interest immunity (PII) and national security.

1. Where do we find the duty of candour? (Nolan Principles; Common Law; Statute)

The duty of candour is not a novel concept. It is rooted in long‑established principles of public life and public law, which have been developed through both the common law and statutory frameworks.

The Nolan Principles, which provide the Seven Principles of Public Life[1] (Selflessness, Integrity, Objectivity, Accountability, Openness, Honesty and Leadership), form an important part of the normative framework within which public authorities operate. While they do not tend to stand as a litigation objective, the seven principles are baked into the understanding of how those who work in public office should operate.

The Common Law Duty of Candour

The primary legal articulation of the duty of candour arises in the context of judicial review. The Administrative Court Guide 2025[2] provides a helpful summary, explaining that the duty of candour means that:

the process of preparing statements of case and evidence must be conducted “with all the cards face upwards on the table”; public authorities must not be selective in their disclosure;
pleadings and evidence must be drafted in clear, unambiguous language, must not deliberately or unintentionally obscure areas of central relevance and must not be ambiguous or economical with the truth or contain “spin”;
pleadings and evidence must not mislead by omission, for example by non-disclosure of a material document or fact or by failing to identify the significance of a document or fact

There are several key cases that reinforce the high standard expected:

R (Quark Fishing Ltd) v SSFCA[3] is one of the seminal cases on judicial review and makes it clear that there is a very high duty on public authority respondents to assist the court with full and accurate explanations of all the facts that are relevant to the issue. At [50] Laws LJ held that “There is no duty of general disclosure in judicial review proceedings. However, there is - of course - a very high duty on public authority respondents, not least central government, to assist the court with full and accurate explanations of all the facts relevant to the issue the court must decide.”
In Citizens UK v SSHD[4], the Court of Appeal emphasised that the duty may be breached by omission, including by failing to disclose a material document or to identify its significance.
R (HM, MA and KH) v SSHD[5] is one of the most important recent cases on the scope of the duty of candour. At [15] Edis LJ explained that the purpose of the duty in judicial review is that it enables the court to adjudicate on issues involving the state without deciding facts or engaging in disclosure processes.
In the recent case of R (Police Superintendents’ Association) v Policy Remuneration Review Body[6], at [15] Fordham J distilled 10 principles on how the duty of candour or candid disclosure, as he frames it, operates.

Three further features of the common law duty are particularly relevant to the emerging statutory duty. Firstly, the duty can arise at the pre‑action and permission stages in judicial review, as confirmed in National Bank of Anguilla v Chief Minister of Anguilla[7]. Secondly, the duty is context sensitive, and the extent of what is required varies with the stage of proceedings; less is required at the permission stage than at a substantive hearing (see R (Batmanghelidjh) v Charity Commission [2022] EWHC 3261 (Admin)). Finally, the duty applies to claimants as well as public authorities, although in practice it is most often engaged in relation to the latter (see R (Khan) v SSHD [2016] EWCA Civ 416).

Existing Statutory Duties

A statutory duty of candour already exists in the health and social care context under Regulation 20 of the Health and Social Care Act 2008 (Regulated Activities) Regulations 2014. This duty requires providers to act in an open and transparent way with people in relation to care and treatment (reg. 20(1)) and imposes specific obligations following a “Notifiable Safety Incident”, including duties to notify, provide an account believed to be true, and give certain information (reg. 20(2)(a) and 20(3)). Breach of this duty is a criminal offence. Although sector‑specific, the structure of this duty is instructive when considering the proposed Hillsborough duty.

2. How does the Hillsborough Duty of Candour compare to the common law duty?

Under the current formulation of the Bill, the Hillsborough duty of candour is similar to the common law duty. If material or information would fall within the common law duty of candour in judicial review, it is likely to fall within the proposed statutory duty as well. While not the same, the common law duty and how it operates are likely to offer a guiding principle when it comes to understanding what the Hillsborough duty of candour would require.

Two important distinctions arise from the different procedural and substantive contexts in which the duties operate:

Judicial review is generally not focused on fact‑finding. Inquiries and inquests, by contrast, are almost always concerned with establishing factual narratives. This difference affects the relevance threshold. Material that may not be relevant to a judicial review claim may be highly relevant to an inquiry’s investigative purpose. The statutory duty may therefore operate more broadly in practice, even if its formulation resembles the common law test.
Unlike judicial review, inquiries and inquests do not have a permission stage. As a result, the statutory duty may arise earlier and with greater force. The common law context‑sensitive approach will remain relevant, but the absence of a permission filter is likely to shape how the duty is applied.

For these reasons, while the common law provides a useful starting point, it is reasonable to anticipate the development of Hillsborough duty of candour-specific case law addressing the application of the duty in inquiry and inquest settings.

3. Litigation tips for using the new duty

The practical operation of the statutory duty will depend heavily on the procedural context. Drawing on experience from judicial review, several techniques are likely to be effective in inquiries and inquests.

Raising concerns with the chair or coroner: in practice, concerns about non‑compliance with the duty are likely to be raised with the chair or coroner in the first instance. If unresolved, judicial review may remain the mechanism for enforcement, or in serious cases, referral to prosecuting authorities.
Understanding the authority’s information systems: because the statutory duty goes beyond the existing compulsion powers under the Inquiries Act 2005 (Rule 9 / s. 21), it would be essential to understand where information is held. Requesting Knowledge and Information Management (KIM) statements or statements that outline where data or material is held, who are the repositories, and who are the data owners from a particular authority is often a helpful place to start to try and understand what questions should be asked.
Obtaining signed statements: for respondents, securing signed witness statements from relevant officials is a well‑established technique in judicial review to establish a public authority’s understanding of the facts at a particular point in time.
Using inquiry procedures proactively: case management directions, deadlines for compliance, and interim hearings can all be used to police the duty. Targeted questions, whether through correspondence or via the chair, are often effective where there is reason to believe that further material exists.
Parallel mechanisms: it may be appropriate to pursue Freedom of Information Act (“FOIA”) or Environmental Information Regulations requests in parallel. Different teams often handle these requests, and discrepancies between FOIA responses and material disclosed in the inquiry can be revealing. Such inconsistencies may themselves raise questions about compliance with the duty of candour.
Addressing late disclosure: if a document is provided late, seek a “curing protocol”, such as supplementary witness statements or re‑opened cross‑examination. It may also be appropriate to invite the chair to record non‑compliance or, in serious cases, to consider referral to prosecuting authorities.

4. Questions of scope: privilege, PII and national security

The Bill contains several important carve‑outs that limit the scope of the duty.

Clause 6 provides a modified duty for the intelligence services. While the duty of candour applies, the notification obligation does not. This aspect of the Bill has been the subject of considerable debate and may evolve further.

There are exceptions for privilege and public interest immunity, meaning that the duty does not require disclosure contrary to: (i) legal professional privilege; (ii) litigation privilege; (iii) the privilege against self‑incrimination; and (iv) public interest immunity under ss.21–22 of the Inquiries Act 2005.

Where privilege is asserted, litigants are entitled to request schedules, to probe the basis of the claim, and, where appropriate, to seek judicial inspection (see R (IAB) v SSHD [2023] EWHC 2930 (Admin)).

Conclusion

The proposed Hillsborough duty of candour represents a significant development in the landscape of public law accountability. While its conceptual roots lie in the common law duty developed in judicial review, its application in inquiry and inquest settings will raise new and complex questions.

This article was written by Natasha Jackson and Rossen Roussanov

You can watch the full webinar recording here.

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[1] The Seven Principles of Public Life - GOV.UK

[2] See Administrative Court Guide 2025, Part C, Chapter 15 - Administrative Court Judicial Review Guide - Courts and Tribunals Judiciary

[3] R (Quark Fishing Ltd) v SSFCA [2002] EWCA Civ 1409

[4] Citizens UK v SSHD [2018] 4 WLR 123 at [106(5)], per Singh LJ

[5] R (HM, MA and KH) v SSHD [2022] EWHC 2729 (Admin)

[6] R (Police Superintendents’ Association) v Policy Remuneration Review Body [2023] EWHC 1838 (Admin)

[7] National Bank of Anguilla v Chief Minister of Anguilla[2025] UKPC 14 at [91]