One clear theme from the Hillsborough inquests is the ways in which inquests can act to frame who and what can be mourned.
My Facebook and Twitter timelines were initially filled with people sharing the bare facts. Unlawful killing. 96 deaths caused or contributed to by actions of the police, the ambulance service, the stadium managers. #Justiceforthe96. Later comments praised the families, their tenacious campaign in the face of official disinterest and resistance, and their lawyers, a group of the best and brightest legal minds who take on public interest work for minimal financial reward, unrelenting hard work and the occasional victory in the public interest. By Wednesday and Thursday, the conversation had moved to criticise the Murdoch-owned press for their reaction to the outcome, to praise Andy Burnham’s speech, and to consider the wider implications of the conclusion, for individual officers and for the campaign for an inquiry into the Battle of Orgreave. The national media followed a similar pattern, with particularly powerful interventions by sportswriters including James Lawton. And critically, this was not a discussion solely about the rights and wrongs of policing and official culture in the 1980s, but was a debate inseparably linked to contemporary politics, including the stage that the EU referendum has offered to the outgoing Mayor of London.
Boris Johnson may have apologised for the comments published in the Spectator while he was editor in 2004, but the callous discussion of ‘mawkish sentimentality’ and offhand reference to ‘the deaths of more than 50 Liverpool football supporters’ (not inaccurate, but the phrasing suggests either incredibly lazy fact checking or deliberate downplaying) remains a low in the debate about the appropriateness of public expressions of grief. While the resharing of the article now is inextricably linked to Boris’ heightened profile as leading member of the Out campaign, it is fundamentally linked to a continued and real sense of anger that the Establishment (for what else does the Spectator represent?) should be able to recast and dismiss the Hillsborough families as trapped in self-pity, inappropriately continuing to grieve publicly about the deaths of their family members, as if this was a chosen path. The article called for the need for a ‘sense of proportion about what constitutes a tragedy’ and that there was a need to ‘cut out the cancer of ignorant sentimentality’ in relation to public responses to death.
In comparison, Judith Butler, reflecting on the September 11 attacks, wrote about mourning as a submission to transformation – a transformation in which the mourner is changed, possibly forever, and which could not be ‘charted or planned. One can try to choose it, but it may be that this experience of transformation deconstitutes choice at some level. I do not think, for instance, that one can invoke the Protestant ethic when it comes to loss. One cannot say “Oh, I’ll go through loss in this way, and that will be the result, and I’ll apply myself to the task, and I’ll endeavour to achieve the resolution of grief that is before me.’ (Butler, Precarious Life: the Powers of Mourning and Violence, Verso, 2004, at 21)
Butler calls for attention to the ways that grief is differentially produced; exploring ‘how certain forms of grief become nationally recognised and amplified, whereas other losses become unthinkable and ungrievable’ (2004, xiv). In later work, she develops this thesis, arguing that the legitimacy of loss is organised through a process of framing, in which alternative accounts are delegitimised and official versions are created. In this account, the ‘frame does not simply exhibit reality, but actively participates in a strategy of containment, selectively producing and enforcing what will count as reality’ (Butler, Frames of War: When is Life Grievable? Verso, 2010, xiii).
Using Butler’s terms, the events of the last 27 years are revealed as a contest over this question of framing; whether the deaths of the 96 were framed as grievable, or dismissed as the deaths of, or at the hands of, drunken hooligans who had in some sense brought it on themselves. Different key moments in that contest can be identified, from the initial news reports and the infamous Sun front page, through the interim and final Taylor reports in 1989/90, to the report of the Hillsborough Independent Panel in 2012. Others have set out accounts of the long fight the families have endured (see the excellent David Conn), so I will not repeat it here, but in that process the initial inquests and the recent re-hearing played a critical central role, and the outpouring of social media responses is now part of that exercise in framing, built upon the conclusions and processes of the re-heard inquest.
The first inquests (heard in two parts in the early 1990s) closed down the possibilities of a full investigation, eventually concluding that the deaths were accidental. The process it followed to reach this flawed conclusion was vital; after the widely reported police accounts of a catastrophe primarily caused by drunken fans was dismissed by Lord Justice Taylor, the public evidence in the initial inquests acted to re-establish and re-legitimise this myth that the fans were partly at fault. It was this lie – an easy trope which fed the Spectator’s dismissal of the Hillsborough campaign and which survived for decades (see, for example, Jeremy Hunt’s 2010 ‘gaffe’) – which has been nailed by the recent inquest. It means that Trevor Hicks, a father of two who died at Hillsborough, can now ‘grieve properly’. Far from families and a city caught in a cycle of self-pity, the injustice perpetuated by the first inquests meant grief could not begin for some of the families. The dead were left ungrievable in the public sphere. The recent hearings in Warrington acted to reframe their loss, to legitimise their grief, and overturned a framing of their campaign as mawkish, inappropriate and merely sentimental.
In this process, the Human Rights Act 1998 was key (as legal writer David Allen Green has pointed out, albeit behind a Financial Times paywall): without the extension of the inquest jurisdiction and the greater emphasis on the involvement of the bereaved caused by jurisprudence built on Article 2 ECHR, the Hillsborough families would not have achieved this outcome. And so, amid the myriad conclusions from Hillsborough – most vitally the critical importance of constituting an institutional culture which does not proactively respond defensively to critique – one lesson is the need for an official recognition which does not tell loss to sit down, shut up and move on. Hillsborough should remind us anew that the dismissal and belittling of bereavement can all too often mask injustice. Instead the law should seek to negotiate an incorporation of that loss (beyond a paternalistic expression of condolence), to recognise the role of the inquest in framing mourning, and to find an account of truth which engages with the legitimacy of grief.