The Law Commission

The Law Commission

(Consultation Paper No 163)

PUBLICATION OF LOCAL AUTHORITY REPORTS

A Consultation Paper

London: The Stationery Office

The Law Commission was set up by section 1 of the Law Commissions Act 1965 for the purpose of promoting the reform of the law.

The Law Commissioners are:

The Right Honourable Lord Justice Carnwath CVO, Chairman
Professor Hugh Beale
Mr Stuart Bridge
Professor Martin Partington
Judge Alan Wilkie, QC

The Secretary of the Law Commission is Mr Michael Sayers and its offices are at Conquest House, 37-38 John Street, Theobalds Road, London WC1N 2BQ.

This consultation paper, completed on 20 March 2002, is circulated for comment and criticism only. It does not represent the final views of the Law Commission.

The Law Commission would be grateful for comments on this consultation paper before 31 July 2002. Comments may be sent either –

By post to:

Christina Hughes
Law Commission
Conquest House
37-38 John Street
Theobalds Road
London
WC1N 2BQ

Tel: 020-7453-1225
Fax: 020-7453-1297

By e-mail to:

christina.hughes@lawcommission.gsi.gov.uk

It would be helpful if, where possible, comments sent by post could also be sent on disk, or by e-mail to the above address, in any commonly used format.

It may be helpful for the Law Commission, either in discussion with others concerned or in any subsequent report, to be able to refer to and attribute comments submitted in response to this consultation paper. In particular, it may be useful to make responses available to the Society of Local Authority Chief Executives Review Group. Any request to treat all, or part, of a response in confidence will, of course, be respected, but if no such request is made the Law Commission will assume that the response is not intended to be confidential.

The text of this consultation paper is available on the Internet at:

http://www.lawcom.gov.uk

CONTENTS

EXECUTIVE SUMMARY	Summary
PART I: INTRODUCTION, FACTUAL BACKGROUND AND SUMMARY OF CONCLUSIONS	Part I
The terms of reference	1.5
The factual background	1.7
The Cartrefle inquiry	1.10
The Jillings report	1.14
The Waterhouse Report	1.21
Our provisional response	1.25
The structure of this consultation paper	1.30
The impact of our proposals	1.39
Acknowledgements	1.41
PART II: AN OVERVIEW OF LOCAL AUTHORITY AD HOC INQUIRIES	Part II
Definition of a local authority	2.3
Definition of an inquiry	2.9
Typology of inquiries	2.11
Type 1: Inquiries ordered by a minister	2.15
Type 2: Tribunals of Inquiry Act inquiries	2.17
Type 3: Formal investigations by the Local Commissioner for Administration (the Ombudsman)	2.20
Type 4: Standards Boards Investigations	2.23
Type 5: Inquiries ordered by a local authority, but chaired independently	2.27
Type 6: Inquiries ordered by the local authority, but chaired internally	2.30
Type 7: Inter-agency inquiries	2.33
Regulated inter-agency inquiries	2.34
Ad hoc inter-agency inquiries	2.35
Type 8: Routine inquiries	2.36
Type 9: Investigations dealt with in accordance with the authority's complaints procedure	2.39
Excluded inquiries	2.40
"Public" inquiries	2.41
Ethical and maladministration inquiries	2.42
Inquiries subject to standing procedures	2.43
Our definition of an ad hoc local authority inquiry	2.45
The legal basis for setting up local authority ad hoc inquiries	2.49
The situation prior to the Local Government Act 2000	2.50
The situation after the Local Government Act 2000	2.54
Subject matter of inquiries	2.56
PART III: LOCAL AUTHORITY LIABILITY AND INSURANCE COVER	Part III
Bases of liability	3.3
Two distinct types of liability	3.6
Direct liability	3.8
Vicarious liability	3.10
Definition	3.11
Course of employment	3.13
Individual liability of members and officers	3.17
The insurance contract	3.19
The express term	3.22
An implied limitation on the express term	3.24
Other constraints	3.26
Principles of law	3.27
The interpretation of these principles for local authority liability insurance	3.32
Implied terms: duties of utmost good faith, of co-operation, and to minimise loss	3.39
A duty of co-operation	3.47
A duty to minimise loss	3.49
Conclusions	3.51
PART IV: ADMISSIONS OF LIABILITY	Part IV
The different kinds of liability	4.2
Definition of an admission of liability	4.3
What actions will constitute admissions?	4.10
Admissions made by members, officers or staff during the course of the inquiry	4.11
Admissions made by the authority on receiving the report	4.19
The procedure for reacting to a report	4.20
Admissions made by the council on adopting the report	4.25
Acting on the report	4.29
Publication	4.30
Statements to the public	4.31
Summary	4.34
PART V: WAIVER OF RIGHTS	Part V
Confidentiality	5.2
The duty of confidentiality	5.4
A right to confidentiality	5.8
Legal professional privilege	5.11
Public interest immunity	5.21
The public interest	5.27
Relationship to confidentiality	5.31
Is there a duty to assert public interest immunity?	5.34
Conclusion	5.42
Summary	5.43
Confidentiality	5.43
Legal professional privilege	5.45
Public interest immunity	5.49
PART VI: DEFAMATION	Part VI
Defences	6.7
Privilege	6.9
Absolute privilege	6.10
Qualified privilege	6.15
Statutory qualified privilege	6.16
Qualified privilege at common law	6.20
General public interest	6.27
Conclusion	6.33
PART VII: THE POLICY, THE PROBLEMS AND	Part VII
THE SOLUTIONS
The policy	7.3
Publication	7.4
The conduct of inquiries	7.10
The problems	7.15
Admissions of liability	7.16
Questions for consultees	7.26
Waiver of rights	7.30
Questions for consultees	7.34
Defamation	7.38
Question for consultees	7.39
Solutions	7.47
An agreement between local authorities and insurers	7.48
A Code of Practice	7.50
Question for consultees	7.55
PART VIII: NON-LEGISLATIVE SOLUTIONS: AN AGREEMENT AND A CODE OF PRACTICE	Part VIII
A statement of agreed principles	8.2
Developments since the Waterhouse Report	8.2
(1) The LGA/ABI Guidance 1999	8.3
The decision to institute an inquiry	8.5
The terms of reference	8.6
Disclosure and statements to the public	8.12
(2) The ABI Response to the Waterhouse Report 2000	8.18
Background	8.19
The decision to institute an inquiry	8.27
The advertising of requests for witnesses to come forward to give evidence	8.28
Disclosure by the local authority of documents to assist the inquiry; and evidence to the inquiry by council staff, particularly senior officers	8.30
References in the course of the inquiry and in any report to matters, including documents, which might be the subject of claims of privilege in subsequent litigation	8.32
The extent of circulation of any report and permissible comment by councillors and officers upon it	8.36
General comments on defamation issues	8.38
Conclusion	8.42
Question for consultees	8.46
Towards a Code of Practice	8.47
The underlying principles	8.49
The content of a Code of Practice	8.51
The Council on Tribunals	8.52
The Davies Report	8.55
The "Working Together" guidelines	8.57
SOLACE 1978	8.62
Contents of a Code: our suggestions	8.66
Question for consultees	8.67
PART IX: LEGISLATIVE SOLUTIONS	Part IX
The policy considerations	9.2
Competing Convention rights	9.3
Freedom of expression	9.5
Right to reputation	9.8
Who bears the risk?	9.10
The role of truth	9.13
The legislative possibilities	9.14
1: Extension of statutory qualified privilege	9.15
Arguments for a new statutory category	9.18
Arguments against a new statutory category	9.21
Defining the category	9.22
Lack of flexibility	9.24
The rights of those criticised	9.27
Who should bear the risk?	9.30
Conclusion	9.31
2: Extending statutory privilege, conditional on the fairness of the inquiry and the report	9.32
Questions for consultees	9.38
3: A procedural innovation: advance ruling on common law qualified privilege	9.40
Civil procedures available in defamation actions	9.47
The application	9.55
Connection with the quality of the inquiry and the report	9.61
Advantages and disadvantages	9.63
Conclusion	9.70
Question for consultees	9.71
4: Expanding the scope of Parliamentary privilege	9.72
Compatibility with the European Convention on Human Rights	9.79
Right to a fair trial and access to a court	9.82
Freedom of expression	9.85
Necessary, prescribed by law, and proportionate?	9.88
A new kind of inquiry	9.92
Question for consultees	9.101
PART X: COLLECTED QUESTIONS FOR CONSULTEES	Part X
APPENDIX A: LGA/ABI JOINT GUIDANCE	Appendix A
APPENDIX B: ACCESS TO INFORMATION	Appendix B
Introduction	B.1
Summary overview of access rights	B.8
Local Government (Access to Information) Act 1985	B.13
Authorities operating under the committee system	B.13
Authorities operating under the new executive structures	B.16
Breach of confidence	B.20
Exempt information	B.22
Defamation	B.26
The Data Protection Act 1998	B.30
The present regime	B.31
The future regime	B.36
Exemptions	B.43
Health, education and social work	B.44
Regulatory activity	B.48
Defamation	B.50
Freedom of Information Act 2000	B.52
Defamation	B.58