New ‘candour’ law a ‘complete muddle’, say bereaved families

Grieving families say a new law that could force a “duty of candour” on UK universities is “full of holes”.

Parents whose children took their own lives while studying believe what is known as the “Hillsborough Law” will fail to produce real change unless the government is clear on which university functions fall within its scope.

The bill, officially called the Public Office (Accountability) Bill, cleared the House of Commons in July, with prime minister Andy Burnham hailing it as “some legacy” for his predecessor Keir Starmer. It is now at committee stage in the House of Lords.

It is named in reference to the 1989 Hillsborough disaster, in which 97 fans died after a crush during a match between Liverpool and Nottingham Forest. In the immediate aftermath, police leaders dishonestly blamed it on football hooliganism and withheld evidence of their own failings.

Among other things, the law aims to create a duty for public authorities and their officials to act with “candour, transparency and frankness” and to enforce that responsibility as part of their dealings with inquiries and investigations.

Campaign group ForThe100, which represents those affected by student suicide, sees the legislation as a way of preventing universities covering up failures that led to student deaths and ensuring families are told the truth about what happened.

But, in its current form, the bill is not clear about which university activities fall within its scope, said ForThe100 campaigners Bob and Maggie Abrahart.

As it stands, universities are covered by the bill when exercising public functions but not where they are carrying out private activities.

According to a letter sent to Maggie Abrahart by minister for skills Jacqui Smith on 1 October, seen by THE, the duty of candour would apply to universities when it comes to interacting with inquiries and inquests, and their public functions such as the awarding of degrees and provision of teaching also fall within the law’s scope.

“Conversely,” Smith writes, “there will be other acts wholly unrelated to the provision of higher education, such as acts relating entirely to a provider’s commercial activities (e.g. renting out spaces), which would be considered of a private nature.

“Ultimately, however, the precise legal boundaries and the interpretation of these functions remain a matter for the courts to determine on a case-by-case basis.”

Regarding the proposed law, Bob Abrahart told THE: “At the moment, it’s a complete muddle, and the government seems to prefer it that way.”

The pair, whose 20-year-old daughter Natasha died while studying physics at the University of Bristol in 2018, said they were concerned students’ well-being would not be considered a public function.

Maggie Abrahart said the concept of treating higher education providers in the same way as public bodies was by no means unique, pointing out that universities are subject to existing legislation such as the Freedom of Information Act.

Both also voiced concerns that the criminal liability introduced by the bill would end up rebounding on individuals, rather than institutions.

But critics of the law have suggested that it will lead to the opposite of its intended effect: making universities so nervous about how they are perceived that they only close up further.

“The danger if you over-criminalise is that you have the opposite of a duty of candour, where if you have to tell the truth [or risk punishment], people just lawyer up and don’t say anything,” said non-affiliated life peer and free speech campaigner Claire Fox.

“I am sensitive to the fact there have been massive cover-ups, Hillsborough being one of them…one can see what drove this legislation,” said Fox, director and founder of debating organisation the Academy of Ideas.

“But I’m also aware of the fact that the duty of candour already exists in the NHS [and yet] we’ve had maternity scandals, we’ve had the psychiatric problems in relation to Valdo Calocane,” said Fox, referencing the failure to stop the fatal attacks in Nottingham by a former student at the University of Nottingham in 2023.

“The problem for me is there’s a cultural problem that public sector organisations are not acting in the best interests of the public. I’m not convinced the law will change that.

“Then, if criminal liability is expanded, you [create] a situation which historically has led to people being too nervous to speak, too nervous to act early on because they don’t want the responsibility.”

Fox also argued that if they fear legal repercussions, universities could misinterpret the Hillsborough Law’s emphasis on public bodies’ responsibility to avoid risk of death or “critical harm”.

“In universities, injury and harm are not seen necessarily as physical,” said Fox, suggesting overcautious institutions might end up barring students or external speakers whose views were deemed to constitute “psychological” harm to others.

“You’ll get a situation whereby universities are so risk averse it can be stultifying,” she suggested.

georgia.luckhurst@timeshighereducation.com