Part X

Collected questions for consultees

Summary of Collected Consultation Questions

In this consultation paper we have addressed a range of issues relating to the publication of local authority ad hoc inquiry reports. Here, we summarise our provisional conclusions and proposals, and the other issues on which we seek consultees views. More generally, we invite comments on any of the matters contained in, or the issues raised by, this consultation paper, and any other suggestions that consultees may wish to put forward.

In particular we would be grateful to learn of any problems encountered in the instigation, conduct, or publication of local authority inquiry reports from those involved in the local authority inquiry process; any information that consultees wish to volunteer about their experience of inquiries will be gratefully received. If possible when responding, it would be useful to include a brief factual background, for example:

the subject matter and type of investigation;

the manner in which the investigation was commissioned, debated and acted upon;

the roles of councillors, officers, insurers and other agencies or individuals;

the outcome, in terms of publication, of the report.

For the purpose of analysing the responses it would be very helpful if, as far as possible, consultees could refer to the question numbers in this summary.

The consultation period will close on 31 July 2002.

The problems

Admissions of liability

1.                                      Is it the experience of consultees that, even though liability may be inferred from an admission of fact, witnesses to local authority non-statutory inquiries are free to give all relevant facts to an inquiry (subject to requirements of confidentiality)?

(paragraph 7.26)

2.                                      Is it the experience of consultees that publication of an inquiry report, whether internal or independent, is treated in practice as amounting to acceptance of any findings of fact and conclusions reached in that report, and thus to an admission of liability?

(paragraph 7.27)

3.                                      Is it the experience of consultees that inquiry reports are ever withheld from publication for fear that statements in them will amount to admissions of liability?

(paragraph 7.28)

4.                                      Is it the experience of consultees that consent to an admission of liability is ever withheld by an insurer in circumstances where the local authority would have wanted to make that admission? If so, we should be interested to know the circumstances.

(paragraph 7.29)

Waiver of rights

5.                                      In consultees’ experience, does the need not to waive the right to confidentiality which may be claimed by the authority lead to the withholding of documents (and other evidence) from local authority ad hoc inquiries?

(paragraph 7.34)

6.                                      Does the fear of waiving legal professional privilege lead to the withholding of documents (and other evidence) from local authority ad hoc inquiries?

(paragraph 7.35)

7.                                      Does the fear of disclosing a document which might be subject to public immunity privilege lead to the withholding of documents (and other evidence) from local authority ad hoc inquiries?

(paragraph 7.36)

8.                                      In the experience of consultees, has insurance cover ever been lost through waiver of rights to confidentiality, legal professional privilege or through disclosure of a document subject to public interest immunity?

(paragraph 7.37)

Defamation

9.                                      In consultees’ experience, are inquiry reports ever withheld from publication because of defamatory statements in them? If this has occurred, was it because of fear of an action in defamation, or because of the risk of invalidating the insurance cover, or both?

(paragraph 7.39)

Solutions

10.                                      Our provisional view is that, without some clarification or change in the law, authorities and insurers can only avoid the risk of publishing, being sued, and finding that the defence of qualified privilege is not applicable, by a very cautious approach, which is not in the public interest, and legislative reform in relation to qualified privilege is therefore desirable. Do consultees agree?

(paragraph 7.55)

11.                                      Do consultees agree that the other legal difficulties are best addressed by (1) a binding agreement between local authorities and their insurers, and (2) by development of a Code of Practice for the conduct of local authority ad hoc inquiries?

(paragraph 7.56)

Non-legislative solutions

12.                                      Given our description of how an agreement between the local authorities and their insurers could be developed, do consultees agree that this would be the right way forward? If not, what additional points would consultees say should be included, or what alternative would consultees propose?

(paragraph 8.46)

13.                                      Given our description of the principles that should underlie a Code of Practice, its content, and who should issue it, what would consultees want to see in a Code of Practice for the conduct of local authority ad hoc inquiries?

 (paragraph 8.67)

The legislative possibilities

Conditional statutory privilege

14.                                      We provisionally propose extending statutory qualified privilege to any local authority inquiry report where

                              (1)the inquiry has been fairly conducted, and

                              (2)the report

                                                     (a)           is about a serious matter of genuine public interest

                                                     (b)           only contains judgments and apportionment of blame where they are supported by the factual findings of the inquiry panel, and

                                                     (c)           only contains criticisms of people which have been put to them in advance of publication, with an opportunity for them to respond and, subject to the requirements of observing confidentiality, those responses are fairly represented in the report.

15.                                      Do consultees agree that this change in the law is necessary and practicable, and if not, why not? If consultees prefer a different legislative solution, whether one canvassed in Part IX or not, we should be interested to know what it is, and in what way it would be an improvement on the current law.

(paragraph 9.39)

Advance ruling

16.                                      Do consultees think that it would be practicable and useful to have a new procedure whereby a party may obtain an advance ruling on the availability of the defence of qualified privilege, and if not, why not?

(paragraph 9.71)

A new kind of inquiry

17.                                      We invite consultees’ views on whether a new kind of statutory scheme for local authority inquiries is necessary, and why. If consultees favour such a scheme, what powers should an inquiry set up under it have?

(paragraph 9.101)

The impact of our proposals

18.                                      What practical and economic impact, in financial and non-financial terms, do consultees think our provisional proposals would have?

 (paragraph 1.40)