In In the Public Interest: Publication of Local Authority Inquiry Reports (Report) [2004] EWLC 289(6) (15 July 2004)

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URL: http://www.bailii.org/ew/other/EWLC/2004/289(6).html
Cite as: [2004] EWLC 289(6)

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PART VI

QUALIFIED PRIVILEGE: OUR PROPOSED REFORMS

1 Introduction

Our analysis of the law in the previous Part led us to two principal conclusions:

(1) to address the issues raised by Waterhouse and reflected in our terms of reference steps should be taken to enable local authorities to be more confident about their ability to publish reports of ad hoc inquiries assuming that they had been conducted fairly; and

(2) there were circumstances in which any protection that might otherwise be afforded to the publishers of ad hoc inquiry reports should be lost where the inquiry had not been fairly conducted or where the conclusions were not fairly drawn from the evidence received but where the current law of malice would not assist the person against whom defamatory allegations had been unfairly made.

6.2

In this Part we set out our recommendations for dealing these issues. Before we turn to the detail of our recommendations we must consider two preliminary questions. First is a statutory solution the right route to take? Second if the answer to the first question is yes should the law of defamation be amended in this particularly detailed way by statute without the whole of the law of defamation being subject to comprehensive review and proposals for reform?

2 Preliminary questions

3 Is there a need for a statutory solution?

6.3

Our analysis of the law particularly relating to qualified privilege reveals that there have been important developments in the case law recent years. The Reynolds decision in the House of Lords indicates that so far as the reporting of stories in the news media is involved qualified privilege will attach to the general reporting of matters that are in the public interest where those writing the story have taken proper care in the gathering of the information on which the story is based. We indicated how the 10 criteria advanced by Lord Nicholls might be developed so as to apply to local authority ad hoc inquiries.

^[1]

We also noted that contrary to suggestions made in the relevant text books the principles set out in the Reynolds case should not be seen as limited to the publication of reports in newspapers or other news media. Rather it should properly be seen as a particular application of the reciprocal duty-interest test that is at the heart of the concept of qualified privilege.

6.5

The High Court could have used the Lillie case

^[2]

Our analysis of the law of malice suggested that this is a concept that is currently narrowly conceived in English law. Thus it will be of limited use to the person who has been defamed and who is seeking to have the defence of qualified privilege lifted. We noted that in other common law jurisdictions the law seemed to be somewhat broader in scope. Indeed there were cases in English law decided prior to the decision of the House of Lords in Horrocks v Lowe that suggested ways in which the law in England might be able to develop which would reflect developments elsewhere particularly in New Zealand. However this could not be achieved by a decision of the High Court. Such a development would need the authority at least of the Court of Appeal most probably the House of Lords.

6.7

As noted at the end of Part V there are two fundamental problems in relying entirely on developments in the common law to address the issues raised by our terms of reference. First an appropriate case has to come before the courts and one that squarely raises the issues we have identified will by definition be unpredictable. Second the judges who dealt with the case would have to share our view of the problems raised and how they might be addressed.

6.8

Thus although we can see that judicial developments in the common law could provide solutions to the matters we have identified we conclude that given our terms of reference we would not have done what we had been asked to do were we to let matters await judicial determination.

6.9

4 Should reforms be proposed in isolation from a general review of the law of defamation?

6.10

It is quite clear from our analysis of those parts of the law of defamation that we have considered that there are many aspects of the law that are complex and difficult. The complexity of the law of defamation has been commented upon on many occasions.

^[3]

^[4]

^[5]

We think that the reforms we propose can properly stand on their own. They address the concerns expressed in the Waterhouse report and reflected in the responses to our consultation paper. They should not await a more comprehensive review of the law of defamation. That would not be in the public interest. Whether or not there should be a more comprehensive review of the law of defamation is a matter for Government to determine.

5 An additional form of statutory qualified privilege

6.12

In the CP we provisionally proposed extending statutory qualified privilege to any local authority inquiry report where

(1) the inquiry had been fairly conducted;

(2) the report

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

(b) only contained judgements and apportionment of blame where they were supported by the factual findings of the inquiry panel; and

(3) the report only contained criticisms of people which had 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 were fairly represented in the report.

6.13

The rationale for proposing the additional statutory qualified privilege was founded on two propositions. First is that where a local authority has taken all the steps it reasonably can to ensure that an inquiry is fair both in terms of the procedures adopted and in terms of the substance of the report then it is in the public interest that it should have a defence to any action in defamation. (If the authority failed to take those steps but the inquiry process was in fact fair it should also have the benefit of the proposed new defence.)

6.14

Secondly a person who is publicly defamed in a report should not find their defamation claim defeated by the defence of qualified privilege where the authority had not done what it reasonably could to ensure that the inquiry process was fair and the inquiry had not been conducted fairly.

6.15

In particular an inquiry should be treated as not having been conducted fairly unless the person holding the inquiry had based his or her conclusions on findings of fact; the person holding the inquiry had so far as practicable given every person criticised in the report the chance to respond to those criticisms; and that any such response was fairly reflected in the report or any summary of the report.

6.16

If the local authority was not satisfied as to the fairness of the inquiry and the inquiry was not in fact fair the new statutory privilege should not be available. Nor should the common law defence of qualified privilege. The authority should not have a further fall-back position of which it could take advantage. We want local authorities to take full responsibility for ensuring the fairness of the inquiry.

6 Which inquiries are covered?

6.17

In developing our thinking we came to the view that to limit the new statutory qualified privilege to inquiries into a "serious matter of genuine public interest" would be to invite unnecessary argument about the circumstances in which the proposed defence would apply. In practice local authorities will not in fact contemplate the establishment of an ad hoc inquiry unless there has been a failure of function which clearly justifies further investigation. We have therefore decided to omit the test of "serious matter of genuine public interest". Instead the test we recommend is the more general one of "a failure in the exercise of a function

^[6]

7 Ad hoc inquiries

The definition of a local authority ad hoc inquiry is discussed above.

^[7]

^[8]

^[9]

We have decided to retain this limitation. Our recommendations do not apply to reports of inquiries established under specific statutory powers. Thus our recommendations do not extend to inquiries reviews or investigations established as a result of a direction from a Minister or an express duty laid on an authority by statute or an express power (other than the new power to establish a special inquiry which we recommend in Part VIII below).

6.20

In the CP we also provisionally proposed that inquiries held under the standing orders of the local authority for example into routine complaints or employment matters should also be excluded from the scope of our recommendations. The Bill does not in terms exclude these forms of routine inquiry from the scope of our recommendations. In practice these are unlikely to be the subject of an ad hoc inquiry set up under the general powers available to local authorities not least because standing procedures are available. If such a routine inquiry revealed more serious issues they could become the subject of a special ad hoc inquiry.

8 Overview and Scrutiny Committee Reports

6.21

We recommend that the extension of qualified privilege should also apply to the reports of inquiries conducted by Overview and Scrutiny Committees (OSC).

^[10]

9 Joint inquiries and inter-agency inquiries

While writing the CP we were very conscious that the ways in which local authorities carry out the functions they are required by statute to deliver have over the years become increasingly complex. For example local authorities may enter into joint agreements with other local authorities. Or they may contract with service providers in the private sector or in the voluntary sector. We have been anxious to ensure that in developing our recommendations for reform they should be sufficiently flexible to enable a local authority to establish an ad hoc inquiry jointly with other public bodies where that seemed sensible and practical.

6.23

Since writing the CP we have given this matter further thought. We now think that we need to distinguish between those bodies that have the statutory function of providing a particular service to the public and those bodies which actually deliver the service. While they may be the same they may not.

6.24

To give some examples:

(1) A local authority has statutory functions relating to the homeless. When accommodation has to be provided it may come from its own stock of housing. Alternatively it may enter arrangements with a Registered Social Landlord or a private landlord to provide the accommodation. If something goes wrong with the provision of the accommodation (for example the homeless family is subjected to racist abuse by other residents) the local authority still retains statutory responsibility for ensuring accommodation is provided.

(2) The authority has the statutory function to meet special educational needs. The actual provision may be delivered directly by itself or indirectly though services provided by another local authority or a private educational body.

(3) The authority has the statutory function to provide services to the elderly. The actual provision might be directly by the authority or indirectly through private sector old people's homes.

6.25

In such cases the responsibility for establishing any inquiry where something had gone wrong should rest with the local authority which has the statutory function to provide the service whether it delivered the service directly itself or indirectly through a third-party service provider. It would not be appropriate for the local authority in such a case to establish a joint inquiry with the third-party service provider.

6.26

By contrast there are services where statutory functions are divided between more than one public authority. For example a person who needs a period in hospital for surgery followed by a period of convalescence will be subject to the statutory functions of a Health Authority during the first period and of a Local Authority during the second. During the first period the service might be delivered in NHS premises but might also be provided in a private hospital. During the second period the service might be provided directly in a local authority home or indirectly in a private nursing home.

6.27

If something went wrong in such a case there would be a need for the local authority to be able to establish an inquiry jointly with the other public body with a related statutory function. An inability to do this would mean that only part of the issue would be subject to the inquiry.

6.28

This would be possible under the current law. Thus a Primary Care Trust ("PCT") may establish an inquiry because it may do anything which appears to be expedient or necessary for the purpose or in connection with the exercise of its functions.

^[11]

^[12]

10 A case study: the "Working Together" guidelines

A detailed example of the circumstances in which a joint ad hoc inquiry is appropriate is - at the time of writing - found in the Working Together to Safeguard Children guidelines drawn up by the Department of Health the Home Office and the Department for Education and Employment.

^[13]

The guidance was issued under section 7 of the Local Authority Social Services Act 1970.

^[14]

^[15]

Part 8 of Working Together provides for case reviews to be established in certain situations. A case review must be undertaken where a child dies and abuse or neglect are known or suspected to be a factor in the death.

^[16]

^[17]

Part 8 provides for a two-tier review process. Each relevant service that has statutory responsibility for and is involved with the child and the family is to conduct an individual management review.

^[18]

^[19]

The Area Child Protection Committee (ACPC) then reviews all these individual reports along with any other reports commissioned by the ACPC. An overview report is produced which includes an action plan for the relevant agencies involved.

Responsibility for the establishment of the ACPC is lead by the local authority but they can add other public bodies to the inquiry where appropriate.

6.35

Currently Part 8 reviews are not established under specific statutory powers. They thus fall within the scope of our definition of ad hoc inquiry.

^[24]

^[25]

11 Public bodies

Thus we recommend that where statutory responsibility for the provision of a service to the public is divided between a local authority and one or more other public bodies acting under other statutory duties it should be possible for the local authority to establish an inquiry jointly with that other body or bodies.

6.37

We do not purport to provide a definitive list of such bodies but they might include bodies such as:

(1) a police authority;^[26]

(2) the prison service;

(3) local probation boards;

(4) other NHS bodies including Local Health Boards (Wales) ^[27] health authorities strategic health authorities or NHS Foundation Trusts;^[28]

(5) a National Park authority;^[29] or

(6) the Broads Authority.^[30]

12 Special inquiries

The recommendations in this Part also apply to the new form of "special inquiry" - which is in essence an ad hoc inquiry but with additional powers - which we recommend should be created in Part VIII of this report.

13 Inquiries not covered

6.39

In one example provided to us an inquiry was conducted by one individual both in his capacity as Monitoring Officer (which being required by statute would not come within the scope of our recommendations) and in his capacity as Chief Executive (which would come within our scheme). It seems undesirable for part of a single report to attract the new statutory qualified privilege while a different part of the same report does not. Therefore our recommended statutory qualified privilege is only available for reports of ad hoc inquiries which are not combined with a report of an inquiry which a local authority is obliged under a specific statutory provision to carry out.

14 A limit on the privilege

6.40

If an inquiry ranges more widely than the failure in the exercise of a local authority function and the report contains material which is not connected with the subject of the inquiry then we do not think it appropriate that qualified privilege should attach to that extraneous material (other than the qualified privilege currently available under the current law).

15 Who is to be the publisher?

6.41

Our terms of reference relate solely to local authority reports. Therefore the statutory qualified privilege which we recommend will only attach to a report where it is published by the local authority which commissioned it (whether jointly or on its own). An argument could be made for the statutory qualified privilege which we propose to be extended to inquiry reports by other public bodies. But this is beyond our terms of reference. We have not consulted on the possibility. This must be a matter for others to decide.

16 Joint inquiries

6.42

As a consequence where an inquiry is established by a local authority and another public body which is not a local authority and there is joint publication the proposed statutory qualified privilege will apply only to the local authority. If a claimant brought a claim in defamation against either or both of the commissioning bodies the local authority would be able to rely on the new statutory qualified privilege; the other public body would have to rely on qualified privilege at common law.

6.43

Various consequences ensue:

(1) As common law qualified privilege can be defeated where the publisher is reckless as to the truth of what is published then if the other public body also participates in the "fairness check" that the local authority will have to go through ^[31] that will tend to show that the other body was not reckless as to the truth of the contents.

(2) Publication by placing the report on the local authority's website is possible. Merely being identified as one of the bodies establishing the inquiry should not in our view amount to "publishing" it because the report is that of the inquiry. The local authority would then be the body that is publishing it to the public. The other body is not publishing it.

(3) Nonetheless for the other public body to place a report which is potentially defamatory on its own website and then to rely on common law privilege would be unwise because it is unclear how extensive the publication may be to attract the defence of qualified privilege.^[32] The result is that while one commissioning body the local authority may be able to place it on its website the other may not. The other body may not even be wise to provide a link from its website to the local authority's.

(4) Publication is not a once and for all event: each communication of the report is a publication of it. If the local authority was not satisfied as to fairness but the other commissioning body went ahead and published the authority would have to be very careful to distance itself from any acts of publication by the other public body. For example the local authority could not arrange matters so that the other body held the press conference but the local authority helped with sending out copies of the report. If it sent out copies of the report that would constitute publication. And if an authority does "publish" where it knows an inquiry has not been fair it becomes much easier to impute malice to the publisher.

These factors suggest that further consideration might be given to extending the principles we recommend for local authorities to other public bodies who exercise statutory functions.

^[33]

17 Publication of part or of a summary of the report

If part of the report presented to the authority is unsustainable for example where the inquiry draws conclusions not justified by the evidence it has received it may be appropriate for that part to be excised. In such a case we see no reason why the proposed new qualified privilege should not attach to publication of the remaining sustainable part. What is not possible is for the authority to publish the report in full with a mere disclaimer of belief in its truth.

^[34]

Alternatively the authority may publish a summary of the inquiry report. In that event the summary must have been prepared or approved by the inquiry.

18 Application of the statutory qualified privilege - publication to the public

6.47

The statutory privilege only comes into play where "publication" (meaning "communication" in the common law) is to the public or a section of it. For any other "publication" the common law would apply.

19 Internal publication

6.48

Other disclosure of the report (what might be called "internal" publication) would have to rely on the common law and would not be subject to our proposed "fairness requirements". In these circumstances the publisher will have to rely on the normal duty-interest relationship to establish common law privilege. The "fairness requirements" are not applicable.

6.49

In practice an inquiry panel clearly has a duty to report to its commissioning authority and so common law privilege attaches. That privilege may be defeated by "malice".

6.50

20 Other forms of private publication

6.51

Although the phrase "internal" publication might be a useful shorthand because most often the kind of pre-publication disclosure of the report will be to a person in the commissioning body this will not necessarily be the case. For example where the local authority has commissioned the inquiry jointly with another body it may well need to disclose it to the appropriate people in that other body for them to review it before it is published more widely. Another example might be where the local authority has entered into a contract with a private firm of solicitors for its legal advice and so needs to disclose the report to a person who is neither an officer nor a member. Similarly counsel's advice might have to be sought and disclosure for that purpose would be privileged without the fairness requirements which attach to the new statutory privilege.

6.52

Others who are "external" to the commissioning authority but to whom it may be appropriate for the report to be disclosed such as the complainant or his or her representatives fall somewhere between the "internal" group – who need to see the report before deciding what action is needed – and the public or a section of it.

^[35]

21 The question of fairness

22 What makes an inquiry report fair?

The primary justification for the new statutory qualified privilege is that it is in the public interest that reports on matters of public concern should be published. We do not think it would be right for local authorities to be able to take advantage of the new qualified privilege in all circumstances. Thus a central feature of our recommendations is that the proposed new statutory qualified privilege should only apply where the inquiry and report are fair. There are two aspects to this:

(1) the fairness of the procedure adopted by the inquiry;

(2) the fairness of the substance of the final report.

23 The inquiry has been fairly conducted

6.54

Fairness is a familiar legal concept at the heart of our system of administrative law. The fundamental principles of natural justice are:

^[36]

nemo judex in causa sua

audi alteram partem

In the context of an inquiry established by a local authority it might be suggested that the nemo judex principle could not easily apply. The answer to this objection is that this principle is crucial to an adjudicative process in which legal issues of fault and liability are being determined. It is of less significance in the context of an inquiry where the primary purpose is to learn lessons for the future from failures of the past. Even so and as a matter of good practice the more serious the issue the more likely the local authority will be to appoint an independent inquiry. Without this the inquiry will lack credibility.

^[37]

For inquiries the fundamental procedural principle is "audi alteram partem". This affects the way evidence is handled by an inquiry whether or not there is a hearing. Even though there may not be "parties" in the sense of opponents in litigation there are likely to be a number of people with differing versions of events. Therefore in the context of an inquiry the duty to hear the other side can translate into ensuring that contrary versions of events are considered by the inquiry panel.

6.57

If a person is to be criticised then it is axiomatic that the person should know what is said against him or her and with enough advance warning to be able to respond:

It has frequently been stated that the right to make representations is of little value unless the maker has knowledge in advance of the considerations which unless effectively challenged will or may lead to an adverse decision. … This proposition of common sense will in many instances require an explicit disclosure of the substance of the matters on which the decision-maker intends to proceed. Whether such a duty exists how far it goes and how it should be performed depend so entirely on the circumstances of the individual case that I prefer not to reason from any general proposition on the subject.^[38]

In re Pergamon Press Ltd is also of interest.

^[39]

It is true of course that the inspectors are not a court of law. Their proceedings are not judicial proceedings … They are not even quasi-judicial for they decide nothing; they determine nothing. They only investigate and report. They sit in private and are not entitled to admit the public to their meetings … They have to make a report which may have wide repercussions. They may if they think fit make findings of fact which are very damaging to those whom they name. They may accuse some; they may condemn others; they may ruin reputations or careers. Their report may lead to judicial proceedings. It may expose persons to criminal prosecutions or to civil actions. It may bring about the winding up of the company … When they do make their report the Board are bound to send a copy of it to the company; and the Board may in their discretion publish it if they think fit to the public at large.

Lord Denning held:

Seeing that their work and their report may lead to such consequences I am clearly of the opinion that the inspectors must act fairly. This is a duty which rests on them as on many other bodies even though they are not judicial nor quasi-judicial but only administrative … The inspectors can obtain information in any way they think best but before they condemn or criticise a man they must give him a fair opportunity for correcting or contradicting what is said against him. They need not quote chapter and verse. An outline of the charge will usually suffice.^[40]

In the context of an Audit Commission report in the public interest

^[41]

^[42]

consider the interests of the individuals whose acts or omissions have given rise to the subject matter of the report and who may be exposed to criticism or other consequences through having been identified in the report. In reporting the auditor has to strike a balance between those interests and the public interest.^[43]

Auditors should allow individuals to answer any criticism that they propose to make. Auditors should consider meeting with relevant individuals during the consultation stages of preparing a report … Auditors will then be in a position to take account of these discussions and where appropriate to indicate what action has been agreed.^[44]

Auditors should also consider whether copies of draft reports should be provided to the individuals concerned. Where copies of the draft report have been provided and the force of any criticism of any individual is subsequently changed as a result of discussions or further investigation auditors should consider advising the individuals concerned of the changes and where appropriate allowing them a further opportunity to respond to them.^[45]

These examples demonstrate that the extent to which the audi alteram principle will apply to an inquiry will to a degree depend on the possible consequences that may result from the inquiry when it has completed its work and published its report.

6.62

^[46]

But as in the interpretation of any authority on how an inquiry is to conduct itself one cannot extrapolate from this decision any general rule that cross-examination will never be an essential part of a fair inquiry. It is for the inquiry to test the evidence.

6.64

The Family Law Bar Association pointed out in their response to the CP that inquiries differ according amongst other things to whether an inquiry is gathering the facts for itself or whether it is working from a file in which the facts are recorded. We accept that a different process may well be appropriate where the facts are largely agreed from one where they are being uncovered.

6.65

There may be legitimate reasons for not disclosing all the evidence of one individual to another but enough must be disclosed to enable a person who stands to be criticised to respond to what is said against him or her. A person should know enough about what others have said about them to give them the opportunity to rebut the criticisms either by rejecting the inferences drawn or by challenging the facts on which they are based.

6.66

Although there is a distinction between checking for factual inaccuracy – and one of the ways in which this may be done is by showing a witness a transcript of his or her evidence – and giving a person a fair opportunity to respond to criticisms affording an opportunity to correct facts may be part of affording an opportunity to rebut criticisms.

6.67

If the person has died or is untraceable or is suffering from a mental disability which severely affects their understanding then it will not be practicable to put the draft criticisms to them. It may in some circumstances be appropriate to put them to a person who has responsibility for their affairs.

6.68

Impartiality requires that an inquiry should be even-handed and not favour one witness in comparison with another for example by affording the witness greater opportunities to contradict evidence or otherwise treating witnesses differently.

6.69

Conflicting versions of facts need to be put to a witness where reaching a finding on those facts is material to the inquiry. It might be necessary for a witness to be sent a form of "Salmon letter" in advance of attending.

^[47]

Where the inquiry plans to go beyond findings of fact and proposes to make a criticism that also should be put to the person concerned. That may mean separate communication with the witness (such as by sending a draft section of the report) after having taken evidence from him or her. As the FLBA pointed out it may be appropriate for this to be done when taking evidence from the person. Thus there may be no need to repeat the procedure at a later stage.

6.71

The precise procedure will depend on the gravity of the allegations the degree to which the facts are already established and the breadth of the terms of reference.

6.72

Whether a person is named in the published document is not a determining factor. If individuals are identifiable although a report only refers to the body or department which employs them then fairness would require allegations or criticisms to be put to them. The fairness requirement depends on whether the individuals can be identified rather than whether they are named.

^[48]

It is the totality of the documents published which constitute the report which are to be considered so it could be appropriate for a person's response to be recounted in an accompanying document such as in an appendix to the report.

24 Guidance

6.74

The ways in which the requirements of fairness will be satisfied in inquiry procedures will inevitably and should vary from one inquiry to another. What is important is that the person appointed to run the inquiry should have thought about the issue carefully and taken into account available guidance. Because of this we have not sought to define 'fairness' in the Bill.

^[49]

As noted in the preceding paragraphs there is already guidance in the case law. The Salmon principles

^[50]

^[51]

Practically speaking a commissioning local authority must:

take great care over the terms of reference;

make clear to the inquiry panel what is expected from the beginning of the process. Thus it should explicitly draw its attention to the features that would make the inquiry process fair or unfair and should stress to the inquiry panel that the authority will want to know how the inquiry was carried out and how it reached its conclusions;

where the inquiry panel does not for whatever reason follow the expected approach and the authority becomes aware of the inquiry's defects take active steps to remedy the defects identified;^[52]

on receipt of the report allow sufficient time to satisfy itself that the inquiry process was fair. The more serious the allegations or the more widely it is intended to publish a report the more care should be taken. The experience and seniority of the person or people assigned to read the report will be important considerations; and

generally approach the matter with an open mind throughout the process (as should the inquiry panel itself).

25 The inquiry's conclusions are based upon findings of fact

The second aspect of fairness is that the report of the inquiry must itself be fair. The key issue here and the one which leads to the most difficulties is that the inquiry must make sure that the conclusions it reaches are based on the evidence it has heard and findings of fact are not made where evidence is either unconvincing or disputed or both. The basic proposition must be that those who are to be criticised by the inquiry should have an opportunity to put their version of events to the inquiry and where they do so their version should be fairly represented in the published document. Where there are competing versions of events this aspect of the conditions will be satisfied where the inquiry has heard both sides and the person complained against has had the opportunity to answer the complaints.

6.78

In assuring itself that the report is fair the inquiry and the local authority must be satisfied of the existence of evidence supporting the conclusions of the inquiry even if that evidence cannot or is not going to be published. In most cases the report writer will want to include supporting facts but to an extent this will be a matter for the author's discretion. If the supporting evidence does not appear on the face of the report it may be in a supporting document possibly not intended for publication. There should be no reason why the authority should not see such a document. It may also be that the facts were agreed and the inquiry itself was not engaged in uncovering facts. If it does not appear to the authority that the conclusions are based on fact then it is hard to see how it could be satisfied it was fair.

6.79

Judgements and expressions of opinion based on the facts are not precluded.

26 Confidentiality and the published material

6.80

There may be considerations of confidence which oblige the inquiry to anonymise the report. We are not recommending that where the local authority is able to rely upon the statutory qualified privilege as a defence against a claim in defamation that should have any bearing upon a defence in a claim for breach of confidence.

27 What if the local authority is not satisfied that inquiry and report were fair?

6.81

If the fairness requirements do not seem to the local authority to have been met then not only would the new statutory privilege not attach; common law privilege and the existing statutory privilege which attaches to documents made open for public inspection also would not attach.

^[53]

If despite its reservations the local authority goes ahead and publishes the report and the contents of the report are true the defence of justification will succeed where the defence of privilege would not. Malice does not defeat justification. This will be a decision that the authority (and its insurers) will have to consider carefully.

28 Procedure where a claim in defamation is brought

6.83

If a person criticised in an inquiry report which had been published to the general public or a section of the public brought a claim in defamation the local authority would plead that it was protected by the new statutory qualified privilege.

6.84

The judge will consider the publication as a whole in determining whether it bears a defamatory meaning.

^[54]

Once it had been shown that the meaning of the sections complained of when read in context was defamatory the onus would be on the local authority to demonstrate that it was entitled to rely on the statutory privilege.

6.86

In the application of the law of defamation questions of law are for the judge and questions of fact are for the jury save in cases where there is no jury trial.

^[55]

^[56]

We think that it should be specifically provided that any determination of whether the procedure adopted by an inquiry was or was not fair should be determined by the judge. This is important for two reasons. First as these issues have been judicially considered in the Administrative Court in the context of the development of the law of judicial review those same legal principles should be applied by the judges who hear defamation actions. Second in order to give guidance to assist local authorities for the future it is important that reasoned decisions are given. These objectives could not be achieved were the matter to be left even in part to a jury.

^[57]

29 Malice

In theory the defining feature of qualified privilege is that it can be defeated by proof of malice and therefore a claim based on malice is not precluded. In practice it will not be possible for a publishing authority to be able to claim that it had undertaken the necessary steps to satisfy itself of the fairness of the process and for the claimant to be able to show that the authority had been reckless or indifferent as to the truth.

6.89

As for lack of honest belief in the truth of the report if the authority checked that the report was fair and believed it to be fair but had extraneous clear contradictory evidence then it would not have an honest belief that the inquiry had reached the right conclusions and therefore would lose the protection of privilege.

6.90

There would nevertheless be scope for malice to be proved where the claimant could prove a dominant motive on the part of the publishing authority. For example an inquiry might be established into alleged improper behaviour by a councillor. The authority might be able to claim the statutory privilege having carried out the necessary checks but lose that defence because it could be shown that the whole process instituting the inquiry and publishing the report was primarily motivated by an improper desire to achieve political advantage.

30 Interaction with other statutory qualified privilege

31 Privilege under the Access to Information provisions

6.91

There is a possibility that if there is doubt about whether a defence of common law qualified privilege or of statutory qualified privilege applies in a particular case (for example because there are doubts over the fairness of the conduct of the inquiry) a local authority might protect itself by simply organising its business such that statutory qualified privilege applies pursuant to the Access to Information provisions inserted into the 1972 Act and the corresponding provisions for the new executive structure.

^[58]

32 Data Protection Act 1998 and Freedom of Information Act 2000

We do not propose limiting a person's rights of access under the Data Protection Act 1998 nor do we envisage that a local authority would be able to use the disclosure provisions available under this Act to publish a report which it thought would not attract privilege under our recommendation. We therefore do not propose any provision which would change the effect of the Data Protection Act.

6.93

33 Commencement

6.94

Our recommendations in this Part are to apply only to inquiries concluding after a specified date. The provisions would come into force on a date to be appointed.

34 Retrospectivity

6.95

A claim in defamation can be brought in relation to any fresh "publication". Thus even if a provision applies from a specified date it could be relied upon for matters which had already been published if they were "re-published"

^[59]

Our view is that the proposed reform should only apply to inquiries reporting after the commencement date. The provisions of the attached Bill would not apply to any inquiry which reported before the commencement date even if the report were published after the Bill came into force.

35 Convention-compatibility of these recommendations

6.97

A defence of qualified privilege whether statutory or at common law protects a person's right to freedom of speech. Therefore any restriction of it must be compatible with the Convention. In brief any legislative reform must be a proportionate response to the problem and any interference with Convention rights must be lawful and necessary as well as proportionate.

36 The rights in issue

6.98

Any restriction of an individual's right to pursue a defamation claim may risk contravening the European Convention on Human Rights which protects an individual's right to:

(1) a fair trial ^[60]

(2) respect for private life ^[61] and

(3) freedom of expression.^[62]

It is unlawful for a public authority (including any court or tribunal) to act in a manner which is incompatible with any Convention right unless it is a legitimate derogation.

^[63]

37 Right to a fair trial and access to a court

The right to institute proceedings and have access to a court is part of the right to a fair trial.

The defence of privilege restricts access to the courts of the person who claims to have been defamed but thus far has been found to do so with a legitimate aim in a proportionate manner and as such is compatible with the right to a fair trial and respect for family or private life.

^[69]

Fayed v UK

^[70]

There is thus scope for a proportionate extension of the defence of qualified privilege with the legitimate aim of facilitating the dissemination of a report which is genuinely in the public interest to be compatible with Article 6.

38 Freedom of expression

6.103

Article 10 contains a qualified right in that it is "subject to such formalities conditions restrictions or penalties as are prescribed by law and are necessary in a democratic society ... for the protection of the reputation or rights of others".

^[71]

^[72]

^[73]

Restrictions on the expression of free speech are required in order to protect character and reputation: freedom of speech does not equate to freedom to circulate libellous statements.

^[74]

Loutchansky v Times Newspapers Ltd

The delicate balance between the right to freedom of expression and the individual's right to the protection of his reputation has now been struck by the decision of the House of Lords in Reynolds' case. To talk of a public right to know without more is misleading. The Convention explicitly states that the right to freedom of expression carries with it duties and responsibilities and its jurisprudence shows how the right to freedom of expression is circumscribed by what is strictly necessary and proportionate in a democratic society for the protection of individuals' reputations.^[75]

The Reynolds case concerned qualified privilege for newspaper reporting of allegations that the claimant had misled the Dáil. The House of Lords held that the correct balance between protection of reputation and freedom of expression was struck in that case and expounded principles to be applied where similar issues arise.

^[76]

39 Necessary prescribed by law and proportionate?

Our view is that our recommended statutory privilege is compatible with the Convention. It might be the case that the availability of the privilege will mean that more local authority inquiry reports are published and that those criticised are deterred from pursuing claims in defamation but such a reform would be necessary in a democratic society prescribed by law and proportionate and therefore lawful.

6.107

It would be necessary because it would:

(1) enable local authorities to be accountable in a transparent way for the manner in which they discharge their statutory functions;

(2) improve the way in which local authorities discharge their functions;

(3) encourage the possibility that lessons learned by one local authority can be publicised so that improvements in practice will spread; and

(4) encourage the publication of findings of fact in matters where there is a genuine public interest.

6.108

If enacted by Parliament it will be prescribed by law.

6.109

The defence is qualified and proof of malice will defeat it. It is therefore proportionate. It provides a suitable level of protection within the margin of appreciation for the local authority while ensuring that an individual's right to defend his or her reputation will not be unduly restricted.

6.110

^[77]

We would also argue that restricting the availability of qualified privilege to those situations where the publishing authority is satisfied that the inquiry process was fair in this discrete area of local authority inquiry reports is a necessary interference with Article 10 rights on a justified basis in the terms of Article 10(2): "for the protection of the reputation or rights of others".

40 An advance ruling?

6.112

In the consultation paper we asked:

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?^[78]

41 Respondents' comments

Nineteen respondents commented on this issue. Four were in favour; three thought it might be useful in theory but was probably impracticable; eight were against it and two were doubtful. Two thought it was irrelevant if statutory qualified privilege were to be extended.

42 Our conclusion

6.114

Our misgivings about this potential new procedure have been borne out by the response on consultation. We have not pursued this possibility.

43 Recommendations

44 Recommendation 1

6.115

Where:

(1) an Overview and Scrutiny Committee or a local authority whether acting alone or with another local authority or other public body establishes an ad hoc inquiry because it has reason to believe there was or may have been a failure in the exercise of one of its functions and

(2) a report or part of a report or a summary of a report of the inquiry is "published" to the public or a section of it by a principal local authority being one which established the inquiry and

(3) specified fairness requirements are met

then statutory qualified privilege shall attach to the report except to the extent that the report relates to matters that have no connection with the subject of the inquiry.

45 Recommendation 2

6.116

Statutory qualified privilege shall also attach to the report of a local authority special inquiry.

46 Recommendation 3

6.117

An inquiry (or other review or investigation) is not ad hoc if it is required to be held by or under any enactment.

47 Recommendation 4

6.118

Where the fairness requirements are not satisfied neither common law privilege nor the statutory qualified privileges which apply where a document shall be open to public inspection shall attach either.

48 Recommendation 5

6.119

The fairness requirements are that:

(1) the inquiry has been fairly conducted or the local authority has taken all reasonable steps to check that it has been fairly conducted and

(2) the report meets the following conditions:

(a) it reaches conclusions based on findings of fact and

(b) it only contains criticisms of people which where practicable 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.

49 Recommendation 6

6.120

In any proceedings for defamation any question as to whether or not the fairness requirements have been met shall be determined by the judge.

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Note 1    See above para 5.38.    [Back]

Note 2    Lillie and Reed v Newcastle City Council [2002] EWHC 1600 (QB).    [Back]

Note 3    “I have on many occasions heard judges and litigants complain of the law and practice of defamation...[T]he law should not only be available to all but be capable of being generally understood.” Comment by the late George Carman QC in Introduction to David Price Defamation: Law Procedure and Practice (2nd ed) (Sweet and Maxwell 2000).    [Back]

Note 4    Report of the Committee on Defamation (1975) (Chair: Mr Justice Faulks) (Cmnd 5909 1975 HMSO).    [Back]

Note 5    See Law Commission Defamation and the Internet: A Preliminary Investigation Scoping Study No 2 December 2002.    [Back]

Note 6    It has been held that “functions” embraces all the duties and powers of a local authority; the sum total of the activities Parliament has entrusted to it. Those activities are its functions. Hazell v Hammersmith and Fulham LBC [1992] 2 AC 1 29 per Lord Templeman.    [Back]

Note 7    See above paras 2.10 – 2.32.    [Back]

Note 8    Local Government Act 1972 s 111 and Local Government Act 2000 s 2: see above paras 2.35 – 2.40.    [Back]

Note 9    See para 1.57 above.    [Back]

Note 10    See above paras 2.18 – 2.25.    [Back]

Note 11    NHS Act 1977 s 16A Sched 5A para 12(1) (amended by Health Act 1999).    [Back]

Note 12    NHS and Community Care Act 1990 s 5(8) Sched 2 para 16(1).    [Back]

Note 13    Department of Health Home Office and the Department for Education and Employment (now the Department for Education and Skills) Working Together to Safeguard Children (1999) (“Working Together”).    [Back]

Note 14    Section 7 states “Local authorities shall in the exercise of their social services functions including the exercise of any discretion conferred by any relevant enactment act under the general guidance of the Secretary of State.”    [Back]

Note 15    Working Together p viii. The Working Together Guidance does not have any legal status: Re G (A Minor)[1996] 2 All ER 65 68 per Butler-Sloss LJ but is nevertheless widely observed.    [Back]

Note 16    Working Together para 8.5.    [Back]

Note 17    Ibid para 8.6.    [Back]

Note 18    Ibid para 8.17.    [Back]

Note 19    Ibid para 8.21.    [Back]

Note 20    Ibid para 8.18.    [Back]

Note 21    Ibid para 8.26.    [Back]

Note 22    The individual management review format is produced at p 92 of Working Together. The ACPC overview report format is on p 93.    [Back]

Note 23    Ibid para 8.29.    [Back]

Note 24    In the CP we came to a different conclusion. We now think this was wrong.    [Back]

Note 25    As Local Safeguarding Children Boards. This was proposed by the Government: see “Every Child Matters” (Sept. 2003) Cm 5860 paras 5.25 – 5.26 and is included in the Children Bill 2004 at clauses 9 – 12; and for Wales clauses 24 – 27 (Version of the Bill ordered to be printed on 3 March 2004).    [Back]

Note 26    Local authorities and local police forces are brought together in Crime and Disorder Partnerships: section 5(1) Crime and Disorder Act 1998. The partnership must co-operate with local probation committees and health authorities. Such a partnership is required by s 6 of the Crime and Disorder Act 1998 to formulate and implement a strategy for the reduction of crime and disorder in the area.    [Back]

Note 27    Established under Order 2003 No 148 Local Health Boards (Establishment) (Wales) Order 2003 (W 18) for the purposes set out at s 16BA(1) of the NHS Act 1977 namely the exercise of functions of Health Authorities transferred to the NAW. They are coterminous with principal local government areas.    [Back]

Note 28    Established by the Health and Social Care (Community Health and Standards) Act 2003 s 1. By virtue of Health and Social Care (Community Health and Standards) Act 2003 s 18(1) a Foundation Trust may “do anything which appears to it to be necessary or desirable for the purposes of or in connection with its functions”. Its purpose is “to provide goods and services for the purposes of the health service in England” (s 1). A body may not be both a NHS Trust and a Foundation Trust.    [Back]

Note 29    National Park authorities are established under Environment Act 1995 s 63 and in Wales s 64.    [Back]

Note 30    Established by the Norfolk and Suffolk Broads Act 1988 s 1. “Public bodies” are required to have regard to the functions of the Broads Authority when carrying out functions which affect land in the Broads: s 17A(1) of the 1988 Act added by the Countryside and Rights of Way Act 2000 s 97. “Public body” is defined at s 17A(3) and includes a county council district council or parish council.    [Back]

Note 31    See paras 6.54 – 6.76 below.    [Back]

Note 32    Hird v Wood (1894) 38 SJ 234. See Law Commission Scoping Study No 2 Defamation and the Internet: a Preliminary Investigation (Dec. 2002) para 2.24ff.    [Back]

Note 33    This could be undertaken as part of any review of the law on inquiries. See Effective Inquiries: A Consultation Paper from the DCA CP 12/04 May 2004 paras 64 and 75. Although the focus of this paper is on ad hoc and other inquiries established by Ministers there seems no reason in principle why the position of inquiries established by other public bodies could not be considered in the context of this review.    [Back]

Note 34    Stern v Piper [1997] QB 123.    [Back]

Note 35    Note that a complainant might be entitled to part of the report under the scheme of the Freedom of Information Act 2000 and the Data Protection Act 1998 but public access to the report may be withheld if the report is intended for future publication where the public interest in withholding the information is greater than the public interest in granting immediate access (Freedom of Information Act 2000 s 2(1)(b) and s 22). Disclosure may also be withheld on other grounds.    [Back]

Note 36    As described by the Privy Council in Mahon v Air New Zealand Ltd: The rules of natural justice … may be reduced to those two that were referred to by the Court of Appeal in England in R v Deputy Industrial Injuries Commissioner ex parte Moore ([1965] 1 QB 456 488 490) … . The first rule is that the person making a finding in the exercise of such a jurisdiction must base his decision upon evidence that has some probative value … The second rule is that he must listen fairly to any relevant evidence conflicting with the finding and any rational argument against the finding that a person represented at the inquiry whose interests (including in that term career or reputation) may be adversely affected by it may wish to place before him or would have so wished if he had been aware of the risk of the finding being made. [1984] AC 808 820 per Lord Diplock.    [Back]

Note 37    See D. J. Galligan Due Process and Fair Procedures (OUP 1996) pp 270 – 273.    [Back]

Note 38    Doody v Secretary of State for the Home Department [1994] 1 AC 531 563 per Lord Mustill.    [Back]

Note 39    [1971] Ch 388.    [Back]

Note 40    [1971] Ch 388 399. Applied in R v Commission for Racial Equality ex parte Hillingdon LBC [1982] QB 276 286 per Denning MR in relation to an investigation by the Commission; and in R v Lord Saville of Newdigate and others ex p A and others [1999] 4 All ER 860 872 per Lord Woolf MR in relation to the Bloody Sunday Inquiry. In re Pergamon Press Ltd distinguished in Furnell v Whangarei High Schools Board [1973] AC 660 680 per Lord Morris of Borth-Y-Gest and 684–685 per Viscount Dilhorne with whom Lord Reid concurred (PC). In In Re Pergamon Press Ltd at p 403 Sachs LJ emphasised the flexibility with which procedures should be devised and applied to give effect to the rules of natural justice.    [Back]

Note 41    Conducted under Audit Commission Act 1998 s 8.    [Back]

Note 42    Audit Commission Act 1998 s 2 and Sched 2 para 1.    [Back]

Note 43    Code of Audit Practice issued by the Audit Commission (March 2002) para S1.27.    [Back]

Note 44    Ibid para S1.28.    [Back]

Note 45    Ibid para S1.29.    [Back]

Note 46    [1980] 1 WLR 1580.    [Back]

Note 47    A “Salmon letter” is a letter served on a witness who may be the subject of potential criticism by the Inquiry secretariat prior to them giving evidence. The letter informs the witness of the areas of concern and the substance of the evidence in support of those areas of concern. Salmon letters are issued in accordance with the second of the six cardinal principles of the Salmon Commission: The Royal Commission on Tribunals of Inquiry Report of the Commission under the Chairmanship of the Rt. Hon Lord Justice Salmon “The Salmon Report” (1966) Cmnd 3121 para 32.    [Back]

Note 48    A person may succeed in a claim for defamation where he or she is identifiable even though not named: eg Morgan v Odhams Press [1971] 1 WLR 1239; Hayward v Thompson [1982] QB 47.    [Back]

Note 49    We do recommend that there should be statutory provisions relating to how criticisms to be made in a report should be dealt with; see below paras 6.77 – 6.79.    [Back]

Note 50    op.cit. para 32.    [Back]

Note 51    SOLACE “Getting it right: guidance on the conduct of effective and fair ad hoc inquiries” (2002); DoH “Advice issued by the Department of Health in 2002 to those conducting investigations and inquiries in the Health Service addressing the precautions which should be taken to avoid losing the protection of qualified privilege”. For extracts from both documents see below Appendices B and C. The Central Secretariat of the Cabinet Office also issued Guidance on Inquiries in February 2001; though more directed to ad hoc inquiries established by Central Government this document also contains useful advice which can be applied to local authority ad hoc inquiries. See: www.cabinet-office.gsi.gov.uk/central/inquiries.htm    [Back]

Note 52    One authority found that an inquiry report was not shaping up well (there were procedural failings leading to unfairness). They discovered this at a late stage. They may not have received warning as early as they would have wished but it is surely right that the authority saw its responsibility in terms of considering this aspect and taking action accordingly rather than merely publishing what they were given.    [Back]

Note 53    Cf. statutory privilege which attaches where disclosure must be made pursuant to the Data Protection Act 1998 or the Freedom of Information Act 2000. See paras 6.92 – 6.93 below.    [Back]

Note 54    Charleston v News Group Newspapers Ltd [1995] 2 AC 65; applied in Norman v Future Publishing Ltd [1999] EMLR 325.    [Back]

Note 55    The Supreme Court Act 1981 s 69(1) provides that a libel or slander claim shall be heard by a jury “unless the court is of opinion that the trial requires any prolonged examination of documents or accounts or any scientific or local investigation which cannot conveniently be made with a jury”. If both parties agree to trial by judge there will be no jury trial. Similarly there will be no jury trial where summary disposal takes place under CPR Part 24 or Defamation Act 1996 s 8.    [Back]

Note 56    In MacIntyre v Phillips [2002] EWCA Civ 1087 [2003] EMLR 194 it was held that there was no rule of practice requiring these matters to be dealt with as a preliminary issue.    [Back]

Note 57    In Kingshott v Kent Newspapers [1991] 1 QB 88 (CA) Bingham LJ held that the questions raised by section 15(3) of the Defamation Act 1996 - whether the matter is “not of public concern” or its publication is “not for the public benefit” - were factual matters to be determined by the jury not the judge. Gatley remarks that this judgement was “contrary to the widely held view that these were matters for the judge; op cit. para 34.17 note 84. The correctness of the Kingshott decision has been doubted by Lord Cooke in the House of Lords decision McCartan Turkington Breen (a firm) v Times Newspapers Ltd. [2001] 2 AC 277 at 301.    [Back]

Note 58    See paras 5.19 – 5.21 above.    [Back]

Note 59    Publication is in this context communication to a third party. Therefore if a document is put on a website it is “published” on that website each time it is accessed.    [Back]

Note 60    Human Rights Act 1998 Sched 1 Art 6.    [Back]

Note 61    Human Rights Act 1998 Sched 1 Art 8.    [Back]

Note 62    Human Rights Act 1998 Sched 1 Art 10.    [Back]

Note 63    Human Rights Act 1998 s 6(1).    [Back]

Note 64    Golder v UK Series A Vol. 18 (1975); 1 EHRR 524. See also Powell v Boladz [2003] EWHC 2160 (QB) in which Tugendhat J upheld the claimants’ Art 6 right and even taking account of the defendants’ right to a fair trial refused to stay defamation proceedings.    [Back]

Note 65    R v Lord Chancellor ex p Witham [1998] QB 575 580 per Laws J.    [Back]

Note 66    Lithgow v UK Series A Vol. 102 (1986); 8 EHRR 329.    [Back]

Note 67    See K Starmer European Human Rights Law (1999) p 354.    [Back]

Note 68    Ashingdane v UK Series A Vol. 93 (1985); 7 EHRR 528 referring to Golder v UK Series A Vol. 18 (1975); 1 EHRR 524.    [Back]

Note 69    Fayed v UK Series A Vol. 294 case B (1994); 18 EHRR 393. See also A v UK (Application number 35373/97; [2002] All ER (D) 264 (Dec.) in which the ECtHR found that the system of Parliamentary privilege is compatible with the Convention; and Zollmann v UK (Application number 62902/00 decision dated 27 November 2003).    [Back]

Note 70    Fayed v UK Series A Vol. 294 case B (1994) 18 EHRR 393; see also K Reid A Practitioner’s Guide to the European Convention of Human Rights (3rd ed 1998) pp 174–177.    [Back]

Note 71    Human Rights Act 1998 Sched 1 Art 10(2).    [Back]

Note 72    Reynolds v Times Newspapers Ltd [2001] 2 AC 127 208 per Lord Steyn.    [Back]

Note 73    Ibid 200.    [Back]

Note 74    Ibid 201.    [Back]

Note 75    [2001] EWCA Civ 536; [2002] QB 321 para 45. Brooke LJ’s judgement is on an interlocutory point on which the defendant appealed. The judgement of the Court of Appeal on the substantive appeal was handed down on 5 Dec. 2001 and is reported at [2001] EWCA Civ 1805; [2002] QB 783.    [Back]

Note 76    See paras 5.36 – 5.39 above.    [Back]

Note 77    An option we rejected in the consultation paper: see paras 9.15 – 9.31 of the CP.    [Back]

Note 78    Para 9.71 of the CP. The full discussion can be found at paras 9.40 – 9.70 of the CP.    [Back]

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You are here: BAILII >> Databases >> The Law Commission >> In In the Public Interest: Publication of Local Authority Inquiry Reports (Report) [2004] EWLC 289(6) (15 July 2004) URL: http://www.bailii.org/ew/other/EWLC/2004/289(6).html Cite as: [2004] EWLC 289(6)