Part IX

legislative solutions

9.1                                      In Part VI we described the law on defamation as it relates to local authority inquiry reports, and considered in particular the defence of qualified privilege. As we have said,[1] our provisional view is that the uncertainty of the law means that to leave it unchanged perpetuates the disincentives to publication of inquiry reports, and this is not in the greater public interest. In our provisional judgment, this is the one problem which is likely to require a legislative solution. In this Part we discuss, first, the policy arguments behind the defence. Those arguments inform the possible legal solutions, which are set out at paragraphs 9.14 – 9.91 below. We examine the impact of the European Convention on Human Rights on these possibilities. Lastly, we canvass opinion on the possibility of a wholly new kind of inquiry being available to local authorities.

The policy considerations

9.2                                      The purpose of the defence of qualified privilege was described by Lord Nicholls thus:

The essence of this defence lies in the law’s recognition of the need, in the public interest, for a particular recipient to receive frank and uninhibited communication of particular information from a particular source. That is the end the law is concerned to attain. The protection afforded to the maker of the statement is the means by which the law seeks to achieve that end.[2]

Competing Convention rights

9.3                                      The underlying values are those found in the ECHR. Freedom of expression (Article 10(1))[3] argues for the facilitation of publication, and in favour of a defence of qualified privilege. The need to protect a person’s reputation (arising out of Article 8)[4] points towards accountability of the publisher and away from qualified privilege.

9.4                                      Courts must seek to balance the public interest in dissemination of information against the individual’s right to access to a court[5] to defend his or her reputation. The exercise of balancing these competing rights must be itself compliant with the Convention jurisprudence. The approach must be as described by Lord Nicholls in Reynolds:

To be justified, any curtailment of freedom of expression must be convincingly established by a compelling countervailing consideration, and the means employed must be proportionate to the end sought to be achieved.[6]

Freedom of expression

9.5                                      Freedom of expression, as stated in Article 10, entails both the freedom to express, and to receive and impart information. It reads:

(1)Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. …

(2)The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.

9.6                                      This is 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...”.[7] Case law suggests, however, that “freedom of expression is the rule, and regulation of speech is the exception requiring justification.”[8] Freedom of speech is one of the fundamental principles of a democratic society, and any attempt to curtail it should be both necessary and proportionate.[9]

9.7                                      Article 10 is of cardinal importance not only in its own right,[10] but also for its part in sustaining other values in a democratic society:

Freedom of expression is, of course, intrinsically important: it is valued for its own sake. But it is well recognised that it is also instrumentally important. It serves a number of broad objectives. … It acts as a brake on the abuse of power by public officials. It facilitates the exposure of errors in the governance and administration of justice of the country.[11]

Right to reputation

9.8                                      Restrictions on the expression of free speech are required in order to protect reputation and other rights. These are values which feature in Article 10(2), which qualifies the right of freedom of expression in Article 10(1). They may also fall to be examined under Article 8,[12] which reads:

(1)Everyone has the right to respect for his private and family life, his home and his correspondence.

(2)There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.

9.9                                      The value in protecting reputation is not just for the benefit of the particular individual, but is for that of the public in general:

Reputation is an integral and important part of the dignity of the individual. It also forms the basis of many decisions in a democratic society which are fundamental to its well-being: whom to employ or work for, whom to promote, whom to do business with or to vote for. Once besmirched by an unfounded allegation in a national newspaper, a reputation can be damaged for ever, especially if there is no opportunity to vindicate one’s reputation. When this happens, society as well as the individual is the loser. For it should not be supposed that protection of reputation is a matter of importance only to the affected individual and his family. Protection of reputation is conducive to the public good.[13]

Who bears the risk?

9.10                                      The task of balancing the competing policy interests entails deciding who should bear the risk that the allegations might be false. As Simon Brown LJ put it in Grobbelaar v News Group Newspapers Limited:

How is the balance to be struck? The ultimate question, of course, is whether the general public was entitled to receive the information contained in these publications irrespective of whether in the end it proved to be true or false. Who, in other words, is to bear the risk that allegations of this sort, convincing though no doubt they appear to the newspaper when published, may finally turn out to be false? Should the risk be borne by the publishers lest the defamed claimant goes uncompensated for his lost reputation – and, indeed, powerless to regain it unless (which is unlikely) he can prove malice? Or should it be borne by the claimant himself lest the fear of an adverse damages award discourages publishers from pursuing their investigatory role or, having pursued it, from informing the public of whatever misconduct they believe they have uncovered?[14]

9.11                                      In the case of the publisher being a media organisation (specifically newspaper publishers) Gray J thought the publisher should bear the risk, and the Court of Appeal agreed. It being a commercial organisation, the risk of being sued was one which it would calculate and take into account in deciding whether the interests of the newspaper warranted publication even in the event of losing a libel action.

9.12                                      It does not follow that a local authority should bear the risk where it seeks to publish the report of an inquiry, as very different considerations apply. For example, a local authority may be able to point to the following factors, where a media publisher might not:

·         There is a genuine public duty on a local authority to investigate and to report its findings.[15]

·         While a local authority may feel some public pressure to publish, and to do so hastily, time is not of the essence in the way that it is for news publishers.

·         The rules of natural justice should mean that the person criticised will have had the criticisms put to him or her and been given a proper opportunity to comment upon them in advance of publication. Those explanations are likely to appear in the report too.

·         Almost by definition, the inquiry report will be on a matter of some gravity, and of genuine public interest.

·         Value judgments should not appear unsupported by facts in an inquiry report.

·         Depending on the subject matter of the inquiry, the local electorate might need the information in order best to exercise their democratic rights.

·         Publication promotes transparency and may make a local authority accountable for the manner in which it has discharged its statutory functions.

·         The local authority may improve its own practices and procedures as a result.

·         Other agencies and people may need to know of the report to improve their own practice.

·         A local authority will not be seeking to profit financially from publication.

The role of truth

9.13                                      A defence of privilege is not founded on the truth of the report in question.[16] Privilege may be claimed even when it has been discovered since publication that the allegations are false. Nevertheless, the likelihood that the contents of a report are true is relevant to the policy issue behind the defence of privilege, namely to the question of who should bear the risk that the contents are false. If a defence of qualified privilege is pleaded, the likelihood that the contents of the report are true will bear on the decision as to whether publication is in the public interest or not. The court need not decide, for the purposes of qualified privilege, whether the allegations are true, but will look to see how they have been arrived at in resolving the issue of what is in the public interest.

The legislative possibilities

9.14                                      We now turn to the possibilities for reform of the defence of qualified privilege. The first option which we consider is to extend statutory qualified privilege;[17] we conclude that simply creating a new category of report which attracts qualified privilege would not be the best way forward. We prefer the second possibility: extending statutory privilege, but tying it to the fairness of the inquiry and report.[18] Third, we discuss a procedural innovation which we think falls to be considered if statutory privilege is not to be extended and the issue is to remain a matter for the common law, namely permitting an advance ruling on whether the common law defence of qualified privilege is applicable in an individual case.[19] We then mention the idea of using Parliamentary privilege to protect local authority inquiry reports, but we do not think this can be taken further.[20] We then review all the possibilities for their compatibility with the European Convention.

1: Extension of statutory qualified privilege[21]

9.15                                      There are difficulties in having decisions on the availability of qualified privilege made on a case by case basis by the courts. While in any one case, a court, applying the existing case law,[22] could find that the reasons underlying the defence of qualified privilege are relevant, and that they justify the defence being available to the authority, it is not an easy matter to predict whether the defence will be available, nor how wide publication may be. We therefore turn to the following question, posed by the Waterhouse Report:

Should there not be a general statutory provision enabling local authorities to institute inquiries into matters of wide public concern and to publish the reports of such inquiries to the public at large with the protection of qualified privilege, whether or not the public has a sufficient interest in receiving the report within the terms of present legislation?[23]

9.16                                      Under this possibility, a category of inquiry would be defined, and the defence of qualified privilege would be extended to all reports within that category, whether the inquiry was internal or independent, when publication of the report[24] had been officially approved by the appropriate body of the council.

9.17                                      As the defence would be that of qualified, not absolute, privilege, if the claimant could show “malice”, the defence would fail.

Arguments for a new statutory category

9.18                                      All the circumstances listed at 9.12 above point towards publication of all local authority inquiry reports, although not without qualification. For example, it is an important aspect of the fairness of an inquiry and report that the inquiry panel will put criticisms to those criticised, and weigh their responses against other evidence, and present the criticisms fairly in the report. If an inquiry or report is unfair in some significant way, then it may be appropriate for the local authority to bear the risk of an action in defamation without being able to plead qualified privilege.

9.19                                      A report may cover a variety of subjects, and of people who might be criticised. Even in relation to a private individual, where the subject matter is of genuine public concern and the inquiry has been fair, publication should always be given priority over privacy. The advantage for the public at large is that publication is more likely, because the authority will not fear an action for defamation, and therefore not be at risk either of pressure being brought to bear not to publish, or of avoiding the contract of insurance. This pressure was referred to by Lord Nicholls as “the chill effect”.[25]

9.20                                      Moreover, though the ingredients are there in the case law for a decision in each case to be reached on its merits, the outcome of each case will be unpredictable. Unpredictability itself is a disincentive to publication.[26] This is particularly so in relation to the breadth of publication. Their Lordships did not think, in Reynolds, that the necessity for a new category of privilege for political speech was made out, but the need is evidently greater in the case of local authority inquiry reports.

Arguments against a new statutory category

9.21                                      In Reynolds the defendant newspaper sought to persuade the court that there should be a new common law category of political speech which should attract qualified privilege (and that the article it had published fell within that category). Their Lordships were unanimous in rejecting the newspaper’s contention. Not all the powerful arguments rehearsed in Reynolds bear on the possibility of a new statutory category for local authority inquiry reports, but many may usefully be considered.

Defining the category

9.22                                      It must be possible to describe the category accurately, so that it is neither too wide nor too narrow. If the category is for communication to a specified group of people, the argument for certainty and a generic approach is stronger; “[b]ut where the category involves communication to the public, the question must be whether the public interest in the receipt of the information will always outweigh the general public interest in protecting the reputation of the individual.”[27]

9.23                                      The definition of the kind of report to which this privilege could attach could be problematic. Local authority inquiries range from an informal internal review to an external panel with highly formalised procedures.[28] One possible definition might be “one which is established by a principal local authority, in circumstances which are not already governed by a statutory or other procedural code, involving serious complaints against the authority or a failure in its services”.[29]

Lack of flexibility

9.24                                      Lord Nicholls emphasised the advantage of decisions being made on a case by case basis: “The elasticity of the common law principle enables interference with freedom of speech to be confined to what is necessary in the circumstances of the case.”[30] In his discussion of the argument, Lord Hope stated: “The advantage of certainty, which is the product of recognising that cases falling within a certain class or category will always attract qualified privilege, must be measured against the disadvantages which tend to flow from rigidity.”[31]

9.25                                      Lord Steyn’s second reason for rejecting a new category for political speech was that “a test expressed in terms of a category of cases, such as political speech, is at variance with the jurisprudence of the European Court of Human Rights which in cases of competing rights and interests requires a balancing exercise in the light of the concrete facts of each case.”[32] This is true, but not intended to be an absolute rule: qualified, and absolute, privilege is available in a range of situations and it is not suggested that the existence of such categories is itself incompatible with Convention rights.[33]

9.26                                      A connected point is that if the issue is left to be determined on a case by case basis, the decision as to where the public interest lies is taken by the courts; if a new category is developed within the common law, again it is a judicially-created privilege; if the privilege is made statutory, the power to accord the privilege is Parliament’s, and the decision whether to publish lies with the local authorities. (Whereas, in the case of Reynolds if a new category had been created the decision on publication would have lain with the commercial organisations.)

The rights of those criticised

9.27                                      If there is a category where the privilege is available, then proving malice makes a claimant’s success dependent on proving what approach and motive the publisher had. If privilege is accorded on a case by case basis, the test is an objective one, with reference to the public interest.

9.28                                      There has to be a real possibility that a claimant could succeed in showing malice: “the less open the communicator is to scrutiny, the more important it is likely to be to retain the benefits of flexibility. Qualified privilege, in other words, should not be given to a category where the occasion of the communication is such that the privilege is at risk of becoming, in practice, absolute.”[34] Given the definition of malice[35] it will be unusual for a claimant to succeed. If an inquiry errs, it is more likely to do so on the grounds of genuine error or incompetence, than because the inquiry panel is reckless as to the truth of its report or has an ulterior motive.

9.29                                      But the first requirement for an individual to be able to show “malice” is to be able to identify the source, and one of Lord Steyn’s reasons for rejecting the generic approach in Reynolds was that newspapers cannot generally be forced to disclose their sources. Whereas a person defamed by a newspaper may not be able to find out the source of the allegation,[36] this will be much less true (if at all) in the case of inquiry reports.

Who should bear the risk?

9.30                                      We noted above that whether the public interest warrants publication with a defence of qualified privilege depends on who it is thought should bear the risk of allegations being false. If qualified privilege is made available as a defence on a generic basis, the individuals who may have been defamed bear the risk. If qualified privilege is only available on a case by case basis, then the authority (and their insurers) bear the risk. In practice, this means that those who pay for the local authority carry the financial risk, and those who would have benefited from publication bear the risk of non-publication. If the argument is for a new category for qualified privilege, then the greater the likelihood that the contents of such reports generally are true, the more reasonable it is that, in general, the risk should be borne by the individual, and the category should be created.

Conclusion

9.31                                      Our provisional view is that merely extending statutory privilege to cover all local authority inquiry reports is not desirable because of the blanket nature of the extension: if a new category of local authority inquiries could be defined with sufficient precision, it would be available irrespective of the fairness of the particular inquiry and report. We take account of the devastating effect that false allegations can have on the person criticised, the fact that qualified privilege may well be available in an individual case, and the risk that less care might be taken than it ought in ensuring a fair inquiry and report if it is known that a defence will be available to any defamation action. Local authority inquiries may vary considerably in the seriousness of the subject matter and the degree of formality fairness requires. We provisionally conclude that the risks of injustice do not justify a new category without some guarantee of the fairness of reports within that category.

2: Extending statutory privilege, conditional on the fairness of the inquiry and the report

9.32                                      The “chill” effect nonetheless points towards a generic approach, so that local authorities know what they may safely publish, and are encouraged to publish. The risk that a particular inquiry is poorly conducted, or a report unfairly written, points towards an approach which allows a case by case assessment. If the benefit of qualified privilege were tied to the quality of the inquiry and report, any unfairness in the individual bearing the risk that the allegations might be false would be reduced, as far as is possible within a generic approach.

9.33                                      One possibility is to limit the extension of statutory qualified privilege to those inquiries that comply with a Code of Practice on the establishment and reporting of such inquiries.[37] However, if the Code of Practice was more a guide and reminder than a rule book, as we suspect it would have to be, it would not be prescriptive, so no inquiry could be said to compliant or non-compliant.

9.34                                      It could be argued, however, that there are some irreducible requirements of fairness, and therefore the benefit of qualified privilege should be made available to any local authority inquiry report where

(1)the inquiry has been fairly conducted,[38] 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 relevant and 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.

9.35                                      These would be minimum requirements. Any Code of Practice or Guidance would be relevant for the purpose of determining, if it were necessary, whether the inquiry had been fairly conducted.

9.36                                      The wider public interest would be served because publication would be encouraged,[39] and there is also a public interest in inquiries and reports being fair. The interests of the original complainant would also be served by publication. The local authority’s interests would be served in that, if an inquiry had been fairly conducted and the report met these minimum requirements of justice, it could publish the report with the protection of qualified privilege, and it would have no cause to fear being in breach of its insurance contract. The interests of any individual criticised would be protected in that only reports which met these minimum requirements would benefit from the new category of immunity, and it would still be open to him or her to bring an action in defamation where either it could be shown that the inquiry was unfair, or that the report did not meet the requirements, or malice could be proved.

9.37                                      We therefore provisionally prefer this possibility.

Questions for consultees

9.38                                      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.

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

3: A procedural innovation: advance ruling on common law qualified privilege

9.40                                      It is possible that consultees will not be convinced that the case is made out for devising a new category of statutory qualified privilege, conditional on the quality of the inquiry and the report, and would prefer that the issue be left to the common law. In that event, if the common law itself does not develop a new category, then it is our provisional view that publication would remain a hazardous business for local authorities, and for individuals. A procedural way of alleviating that problem, for both the authority and individuals, might be to allow a local authority to seek a ruling in advance of publication on the applicability of qualified privilege in the instant case.

9.41                                      If, for argument’s sake, a local authority published the report of an ad hoc inquiry and faced a defamation action, and sought to argue qualified privilege as a defence, the court might well rule in its favour. The disadvantages of resolving the issue by litigation, which are considerable, are the damage to the reputation of the person defamed, and the cost to the authority of defending the action. The costs of the authority are ultimately borne out of their own public funds. This will inevitably lead to a reduction in the level of services the authority could otherwise have afforded. The protection that a right to bring a defamation action offers after the defamatory material has been published is limited in practice, because of the prohibitive costs of legal action. (Public funds are not available for such an action, but a conditional fee arrangement might be appropriate. In addition, where the person who claims to be defamed is a member of a body representing his or her interests it might be feasible for that body to fund an action.)

9.42                                      The possibility of litigation may, however, have an inhibitory effect: litigation and its costs may be avoided by simply not publishing the report. However, this will be at the expense of the benefits of publication, and the objectives of openness and transparency which local authorities should strive to achieve.

9.43                                      It would be preferable, for both the authority and any person who would be defamed if the report were published, if a ruling could be obtained in advance of publication of the report. A possibility, therefore, is a swift court procedure available after the report is written, but before it is published.

9.44                                      The ABI suggested something along these lines in its Response to the Waterhouse Report:[40]

the would-be publisher [would] submit the report with an application to a court, accompanied by an affidavit certifying:

(a) why publication is in the public interest; and

(b) that the report was compiled in good faith and without malice.

If satisfied, the Court would then make an order to this effect which would give the publisher protection against a defamation action, but only in the absence of malice. Further thought should be given to whether the Court should be asked to scrutinise all of what will inevitably be lengthy reports.

The application hearing need not take long at all, especially as there need not be any other parties involved. It might even be as short and simple as, say, applying to a Magistrate for an arrest warrant.

The Court could also determine which persons or classes of person are entitled to a copy of the report, and perhaps on what conditions. A control on the use of the procedure could be that if malice was subsequently proved, the maker of the affidavit could be subject to proceedings for contempt.

9.45                                      The possibility we describe here is not identical to the ABI suggestion. We envisage rather that the terms on which the protection should be granted should follow those of the common law defence, namely, whether there is the necessary reciprocal duty to publish and interest in receiving the information, as amplified in the case law.[41] If a court rules that the common law defence of qualified privilege is available in the instant case, then it may be pleaded with confidence by the authority in any subsequent litigation. The existence of malice (which, if proved, would defeat the common law defence) would be a matter of fact to be proved at any trial, and not a matter for an advance ruling.

9.46                                      Thus this possibility consists in making the common law defence of qualified privilege available (a) where it is currently uncertain whether it will be available, and (b) in advance rather than after the event. The court is the appropriate body to extend that legal protection. The court in question would be the Queen’s Bench Division of the High Court, where defamation actions are currently heard.

Civil procedures available in defamation actions

9.47                                      Although there are several procedures that are already available to parties in a defamation action, none enables the local authority to determine in advance of a full trial whether or not it can publish a report, safe in the knowledge that qualified privilege will attach to that report.

9.48                                      When faced with a claim for defamation, the authority can apply for summary disposal of the case under Defamation Act 1996, section 8[42] if it is clear that qualified privilege will attach to the statement.[43] If it is clear that the defendant will not be able successfully to plead qualified privilege, after having regard to the Reynolds guidelines,[44] the case may be disposed of summarily, if the claimants are willing to limit themselves to the maximum £10,000 damages set out in section 9(1)(c) of the Defamation Act 1996.[45]

9.49                                      Alternatively, the authority could apply for summary judgment under Part 24 of the Civil Procedure Rules.[46] Summary judgment is appropriate where the issue to be litigated is one of law, but not where there are additional issues of fact.[47] Where, therefore, the only issue is the applicability of qualified privilege as a defence (and there is no allegation of malice), the authority can combine an application under Part 24 CPR with an application under Part 3.4 to strike out the claim as an abuse of process.[48]

9.50                                      However, the section 8 mechanism cannot be invoked at the same time as the other two procedures.[49] Similarly, all three devices have the added disadvantage that they can only be invoked once an action has already been commenced.

9.51                                      Injunctions, whether interim or final, are also not particularly pertinent to the situation of the local authority.[50] Designed to prevent, rather than expressly authorise publication, they are of much more use as a tactic to the person who claims to have been libelled.

9.52                                      In contrast to these measures, our proposal would be engaged at an earlier stage. We envisage a procedure whereby the authority, prior to publication[51] of potentially defamatory material, and certainly prior to the commencement of proceedings, can obtain a binding ruling on whether the defence of common law qualified privilege is available if the report is placed in the public domain.

9.53                                      We understand that courts are traditionally hostile to requests for advisory opinions and advance rulings on discrete points, but we think an advance ruling on the availability of the common law defence in defamation could be said to be a special case (1) because of the simple fact that if the publisher waits until after publication then the damage is done, and (2) if the point at issue – is this a case where qualified privilege may be granted? – can be severed from other possible points of dispute.

9.54                                      We believe that this would sit harmoniously with the post-Woolf principles as stated in the overriding objectives of the Civil Procedural Rules.[52] The Pre-Action Protocol for Actions in Defamation emphasises the importance of the avoidance of lengthy trials. It states that the court will take into account, when dealing with liability for costs and making other orders, the extent to which the parties have availed themselves of independent neutral evaluation, mediation or other forms of alternative dispute resolution.[53] Although the advance ruling possibility does not fall into any of these categories, it would take place early on in the litigation process, thus providing for a speedier disposal of the issue.

The application

9.55                                      Application would be made to a judge of the High Court for a Qualified Privilege Ruling. The issue on which the judge would be asked to rule would be purely a matter of law. The judge’s ruling would then be as conclusive as any other ruling on a point of law in the course of ordinary civil proceedings. The ruling would purely be on whether the common law test applies.[54]

9.56                                      The application would be made by the authority before the act of publication (in the sense of communication). The application would state what the authority intended to publish, when, and how, including a statement as to the anticipated audience.

9.57                                      The authority would have to give notice of its application to any person or body who might reasonably be affected, namely a person who was going to be criticised in the report, but there would be no compulsion on that person to be represented in the proceedings.[55] (It should not, we think, be a problem to identify the people who ought to be notified because the inquiry panel will already have had to be conscious of the need to put criticisms to those criticised, and to take account of their response, in the course of writing the inquiry report. Absolute privilege will attach to communications made in the course of judicial proceedings before a court of justice, so disclosure for the purposes of the application for an advance ruling will be privileged.)[56]

9.58                                      It would be possible for the court to appoint an advocate to the court to advise it, if the judge thought it expedient in the particular case. The court would not be ruling on the truth of the adverse comments, nor on whether they were made with malice, but on whether the necessary genuine public interest in receiving the information existed, and thus whether the necessary duty to publish pertained.

9.59                                      The court could make an order akin to an injunction, permitting or prohibiting publication to certain people, bodies or in certain forms. If it held that the common law defence of qualified privilege was not applicable to the report, it could make a ruling to that effect. That ruling would be binding on the parties in any subsequent litigation.

9.60                                      An application would be a matter of choice for a local authority, not a compulsory procedure. The authority might prefer not to seek an advance ruling, for example because it was confident that, in a particular case, on any interpretation of the duty-interest test, qualified privilege would attach to the report it planned to publish.

Connection with the quality of the inquiry and the report

9.61                                      There would be no explicit tie between the quality of the report and the entitlement to the ruling: the common law question is whether there is a duty or interest on the part of the publisher to communicate the information and on the part of the recipient to receive it, not on whether the report would be defamatory or true. That said, it could be argued, and we think it would be argued, that if an inquiry had not been established or conducted fairly, or in accordance with the Code of Practice that we propose, then it is unlikely any court would find there was any duty to publish the report or any interest in receiving it. Put the other way, there can be no duty on an authority as a public body to publish ill-founded or unfair assertions of fact or opinion.

9.62                                      Conversely, if the inquiry has been properly established and conducted, this would be likely to influence the court in determining that qualified privilege could properly apply to the publication in question.

Advantages and disadvantages

9.63                                      The first benefit to the public and to a complainant would be that if such an avenue were to be available, an authority need not resist publication, and so publication would be more likely. A second general public benefit would be that, if the court ruled that there was no protection from defamation in the circumstances, and so the report was not published, the issue would at least have been considered by a court, rather than in private discussions between the authority and its insurer.

9.64                                      The advantage for the allegedly maligned person is that if the court rules that the report is not entitled to qualified privilege, then it is very unlikely to be published. This potential advantage is, however, offset by the fact that the advance ruling application itself would entail making the contents of the inquiry report known at least to those participating in the application, and the application itself might be more widely reported.

9.65                                      The advantage to the authority would be the option to seek a ruling from a judge in advance of publication, rather than have to rely on a defence whose parameters are uncertain after publication.

9.66                                      The difficulties are, however, considerable. One main disadvantage would be the likely delay between completion of an inquiry report, and its publication.

9.67                                      A second significant problem might be that it would not in practice be possible for the decision-maker to keep the issue before him or her distinct from the more onerous question of whether the allegations are sufficiently well-founded for it to be in the public interest for them to be published. This is especially so as in each case the court or certifying body would have to be mindful of Articles 8 and 10. The danger is that the judge would have to conduct such a wide-ranging inquiry that the advantages of the procedure are wholly lost.

9.68                                      Against this, it could be said that a ruling on the availability of qualified privilege does not require a court to engage with the truth of the contents of the report, and that the question of whether there is the necessary duty to publish and interest in receiving the information can be kept distinct.

9.69                                      A third difficulty with an advance ruling might be that the issue could not be resolved in relation to an occasion of publication, irrespective of whose reputation is under consideration. The court ought to consider the interests of all those who could potentially be affected, even though they might not be represented in the advance ruling procedure, and this could not be done.

Conclusion

9.70                                      Our provisional conclusion is that in theory, if possibility 2 is not to be pursued, such a procedural innovation would be advantageous, but that in practice it is not workable.

Question for consultees

9.71                                      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? If not, why not?

4: Expanding the scope of Parliamentary privilege

9.72                                      We now mention one theoretical possibility, namely an expansion of Parliamentary privilege to local authority inquiry reports. Our provisional view is that it does not have any merit, but we describe it briefly here so consultees may tell us if there are benefits to it which we have not seen.

9.73                                      The presentation of a report to Parliament confers on it absolute privilege[57] provided the report is done in the course of, or for the purposes of or incidental to proceedings in Parliament.[58] This may occur, for example, where an inquiry has been ordered by the Secretary of State under section 81 of the Children Act 1989.

9.74                                      One way of ensuring that a report is done in the course of or for the purposes of or incidental to proceedings in Parliament is to use the “unopposed return procedure”.[59] This procedure is only used where the public interest in publishing the document outweighs the public interest in withholding the document for the protection of individuals or companies.[60]

9.75                                      Our provisional view is that, as a matter of principle, this solution is undesirable. The legal immunity afforded by Parliamentary privilege, although very useful, is not one which should be extended lightly. Although there are occasions where the public interest in publication outweighs the need for legal recourse in the event of defamation, this is not the case for all Parliamentary reports. The unopposed return procedure is one way in which a document can become absolutely privileged but it has been criticised as perhaps too easily open to exploitation.[61]

9.76                                      Indeed, the Joint Committee on Parliamentary Privilege recently recommended that “unless there are strong reasons in the public interest, no paper other than one emanating from the House or its committees should be absolutely privileged.”[62] Thus in practice, government backing would be required for any given report. Any inquiry report will be the creature of a local authority, and there is no reason for it to be made subject to the supervision of central government.

9.77                                      A further reason that expanding the scope of Parliamentary privilege is undesirable in principle is that it is absolute, which means that the publisher is protected from a defamation action even where malice is alleged by the claimant.[63] There does not seem to be any reason in principle for a local authority or the authors of an inquiry report to be shielded from an action where the statements were made with malice.[64]

9.78                                      For all these reasons, we do not propose expanding the scope of Parliamentary privilege.

Compatibility with the European Convention on Human Rights

9.79                                      We now turn to discuss the question of compatibility of each of possibilities 1 – 3 with the European Convention on Human Rights.

9.80                                      Any legislative reform must be a proportionate response to the problem. Any restriction of an individual’s right to pursue a defamation claim may risk contravening the European Convention on Human Rights,[65] which protects an individual’s right to:

(1)a fair trial,[66]

(2)respect for private life,[67] and

(3)freedom of expression.[68]

9.81                                      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.[69] In relation to defamation claims, conflicting parties are seeking to rely on conflicting rights: respect for private life and freedom of expression. Any claim to privilege by the publisher may impinge on a claimant’s right to a fair trial. In such cases, courts must seek to balance the public interest in dissemination of information against the individual’s right to access to a court to defend his or her reputation.

Right to a fair trial and access to a court

9.82                                      The right to institute proceedings and have access to a court is part of the right to a fair trial.[70] Access to the courts is a fundamental constitutional right: “Such a constitutional right … is said to derive from two sources: the common law, and art 6 of the European Convention for the Protection of Human Rights and Fundamental Freedoms…”.[71] This right is not absolute but is subject to limitations.[72] These are permitted by implication, since the right of access by its very nature calls for regulation by the State.[73] Member States also enjoy a “margin of appreciation” in that they are considered to be in the best position to decide on the measures necessary in a particular area. However, the European Court of Human Rights (and now the domestic courts) must be satisfied that any
limitations on the right of access do not reduce it to an extent which impairs its very essence. Most importantly, however, the limitation must be in pursuit of a legitimate aim and be proportionate between the means employed and the aim sought.[74]

9.83                                      The defence of privilege restricts the 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.[75] In Fayed v UK an allegedly defamatory Department of Trade and Industry report was found to have a legitimate aim to report in the public interest. The means employed were held to be proportionate, as the Inspectors and Secretary of State of the Department were bound by rules of rationality, legality and procedural propriety.[76]

9.84                                      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.

Freedom of expression

9.85                                      Article 10 is set out in full at paragraph 9.5 above. Again, this is 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”.[77] Case law suggests, however, that “freedom of expression is the rule, and regulation of speech is the exception requiring justification.”[78] Freedom of speech is one of the fundamental principles of a democratic society, and any attempt to curtail it should be both necessary and proportionate.[79]

9.86                                      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,[80] and the restrictions that follow from the tort of defamation are a necessary derogation from the fundamental right to freedom of speech. In Loutchansky v Times Newspapers Ltd Brooke LJ commented that:

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.[81]

9.87                                      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.[82] The question is, therefore, whether extending the benefit of qualified privilege to local authority reports would be similarly compatible with the Convention.

Necessary, prescribed by law, and proportionate?

9.88                                      Our provisional view is that extension of the statutory defence is compatible with the Convention. Extending the ambit of privilege to include a potentially larger group of publishers could prevent more people from pursuing claims in defamation, but such a reform would be necessary in a democratic society, prescribed by law and proportionate and therefore lawful. 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.

9.89                                      If it is enacted by Parliament it will be prescribed by law. If the defence is qualified so that malice will defeat it then it is 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.

9.90                                      Our only caveat on the question of compatibility with the ECHR is that it might be relevant exactly how the extension is to be achieved. Possibility 2,[83] where statutory immunity is related directly to the fairness of the inquiry and the report, represents less interference with a person’s Article 6 and Article 8 rights than does possibility 1,[84] whereby statutory qualified privilege is extended to a new category of inquiry, irrespective of its actual quality. It could therefore be argued that a blanket extension of the privilege is not “necessary”, because there is an alternative which allows for finer balancing of competing rights in individual cases.

9.91                                      Turning to the Advance Ruling, this would represent a procedural change rather than a substantive change. The availability of the defence itself would not be affected and, as the common law defence may be made available to a local authority compatibly with the Convention under the current law,[85] so any earlier ruling would also be capable of being compatible with the Convention.

A new kind of inquiry

9.92                                      We now consider an additional legislative reform which would go wider than simply making qualified privilege available as a defence in defamation to local authorities. The Waterhouse Report drew attention to the recommendation in the SOLACE report “that local authorities should, by a change in the law, be given the power to set up formal inquiries empowered … to summon witnesses, require the production of documents and take evidence on oath.”[86] It continued,

In response to this report the Local Authorities Associations published in 1980 their own comments on the Marre committee’s proposals.[87] That response indicated that the Associations had decided not to pursue a request for statutory powers to hold inquiries at that stage; but they endorsed the call for a code of practice and procedural rules, putting forward their own suggested versions of such a code and rules. In our judgment, however, the Associations’ proposals on the reporting of inquiries did not deal satisfactorily with the problems that subsequently arose in relation to the Jillings report and the time has come for further consideration to be given to those problems on the lines that we have suggested.[88]

9.93                                      Under the current law, a local authority may set up an ad hoc inquiry under its implied powers or the general power to promote or improve the economic, social and environmental well-being of its area.[89] The SOLACE proposal would give local authorities a new express power to establish an inquiry. The inquiry panel could be given the powers to: secure the attendance of witnesses and the production of documents; to take evidence on oath, affirmation or otherwise;[90] to issue a commission or request to examine witnesses abroad; and to compel the disclosure of confidential information.[91]

9.94                                      Witnesses before such an inquiry could be accorded the same immunities and privileges as a witness before the High Court, following the pattern of a tribunal set up under the Tribunals of Inquiry (Evidence) Act 1921.[92]

9.95                                      It is true that there may be less need for a statutory solution in respect of less serious matters than there was when the SOLACE report was published: many of the inquiries mentioned in the SOLACE report would now be dealt with by way of the Part 8 of the Working Together Guidance,[93] and allegations of maladminstration or ethically inappropriate behaviour can be investigated by the Local Government Ombudsman or the Standards Board.[94]

9.96                                      There may, however, still be a need for a new form of inquiry for matters which do not result in a public inquiry as instigated by a Secretary of State or by Parliament,[95] but which nevertheless call for a greater degree of formality and publicity than an ad hoc inquiry with no formal powers, because, for example, of the seriousness of the subject matter.

9.97                                      The recent decision of Edwards v UK[96] lends weight to the argument that a new form of inquiry is needed for the most serious matters where an inquiry is not established by a minister, or at the insistence of Parliament. In Edwards v UK the European Court of Human Rights found that there had been a violation of Article 2[97] of the Convention because there had not been an effective investigation into the death of the applicants’ son, Christopher Edwards, while in custody.[98]

9.98                                      Article 2 places positive obligations on the state, including procedural obligations. The court stated that it “requires by implication that there should be some form of effective official investigation when individuals have been killed as a result of the use of force”.[99] A private non-statutory inquiry was established into Christopher Edwards’ death by the Prison Service, Essex County Council and North Essex Health Authority. It was thorough and “meticulous”, but the court found that it was not an “effective” investigation as required by Article 2 for two reasons: it was held in private, and it lacked the power to compel witnesses.

9.99                                      A local authority can, of course, establish an inquiry which sits in public, but there is, under the current law, no form of inquiry which a local authority can establish with powers to compel witnesses and the production of documents.

9.100                                      If a new kind of inquiry were available to local authorities, along these lines, it is possible that, because of the degree of formality and the potential costs involved,[100] it would only be made use of in very exceptional situations, and the existing powers[101] would continue to be used to set up less formal inquiries. If this style of inquiry became common for local authority inquiries, authorities might be vulnerable to the charge that they were too easily giving themselves exemption from liability to defamation. The general public benefit of such a new kind of inquiry might, then, depend on how they were used.

Question for consultees

9.101                                      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?