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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(1) (15 July 2004)
URL: http://www.bailii.org/ew/other/EWLC/2004/289(1).html
Cite as: [2004] EWLC 289(1)

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PART I

INTRODUCTION

In February 2000 Sir Ronald Waterhouse published the report of his inquiry into abuse of children in care in North Wales.

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This Part sets out the factual background leading to our terms of reference; the provisional conclusions we reached in our consultation paper (CP) published in 2002;

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2 The factual background

As Waterhouse states it had been known for several years that serious sexual and physical abuse of children had taken place in homes managed by the former Clwyd County Council in the 1970s and 1980s. In 1991 criminal investigations were begun by North Wales police. They led to eight prosecutions and seven convictions of former care workers.

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Prior to the Waterhouse inquiry which was set up by Parliament ad hoc inquiries had been established by Clwyd County Council ("Clywd") to investigate allegations of sexual abuse and related matters. We summarise them and the problems they posed for Clwyd.

3 The Cartrefle inquiry 1990-1992

1.5

The Cartrefle inquiry focused upon allegations of abuse at the Cartrefle Community Home. Established in November 1990 on behalf of Clwyd social services department it was chaired by John F Banham a retired senior officer of Cheshire social services department. The Clwyd Area Child Protection Committee (ACPC)

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Between February and October 1992 the County Solicitor discussed with their insurers (Municipal Mutual Insurance Limited)

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The County Solicitor agreed with the insurers that extracts of the conclusions and recommendations could be circulated to members of the Social Services Committee and the ACPC. Discussion was to be confined to general principles; there was to be no debate on matters that might be the subject of criminal proceedings or generate claims against Clwyd.

1.8

In the event dissemination to the public was not possible because of ongoing criminal proceedings. Even publication of the overview would have constituted contempt of court.

4 The Jillings inquiry 1994-1996

1.9

Besides preventing publication of the Cartrefle inquiry continuing police investigations also precluded the establishment of a public inquiry. There was concern that police investigations were becoming increasingly protracted. So Clwyd decided to set up another ad hoc inquiry. The council wanted to review past practice quickly to ascertain whether anything more needed to be done to secure the proper care and protection of children.

1.10

The proposal to set up the inquiry was discussed by the Leader of Clwyd Council and the Chairman of the Social Services Committee with the Chief Executive the Director of Social Services and the County Solicitor. It was approved by the Social Services Committee on 12 January 1994. The inquiry chaired by John Jillings retired Director of Social Services for Derbyshire was instructed to conduct an investigation "into the management of its Social Services child care services from 1974 to date with particular reference to those concerns which prompted the investigation by the North Wales Police."

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Significantly Clwyd was due to be dissolved on 1 April 1996. Thus the authority did not have long to decide how to react to the report. Waterhouse (paragraph 32.43) describes what happened next:

… [the report] was given very limited circulation. It was seen by the senior officials involved and by the Leader of the Council who consulted other leading members of the Council nominated by their respective groups. According to Loveridge ^[7] "The initial reaction of the Council was one of amazement (at) the number of inaccuracies contained therein and the style and content of the Report". It appears that an effort was made to establish a list of the alleged factual inaccuracies with a view to concurrent publication with the Report and on 7 March 1996 instructions were sent to Leading and Junior Counsel to advise on the question of publication. Supplementary instructions were sent to them shortly afterwards in the light of representations by the North Wales Police and by the Council's insurers and by 20 March 1996 Loveridge had received a Preliminary Joint Opinion a Joint Opinion and a Supplementary Joint Opinion from Counsel.

Counsel were asked to advise:

(1) whether publication of the report might avoid Clwyd's insurance policy bearing in mind the large number of objections raised by the insurers to any publicity attaching to the report;

(2) the potential liability of Clwyd for publication of any defamatory comments contained within the report; and

(3) whether there was any risk to the proper administration of criminal justice through the impact upon any pending trials of publication of the report.

1.13

Counsel's answer to the first question was that publication might indeed avoid the insurance policy. In relation to the second counsel thought that the council could rely on the common law defence of qualified privilege

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Waterhouse describes how the council dealt with the report:

The advice of Counsel was accepted and the Policy Finance and Resources Committee duly received the report at its meeting on 22 March 1996 ... The committee dealt with the matter by simply noting the report and agreeing to refer it to the Secretary of State for Wales to assist him in considering whether or not a public inquiry should be instituted. The ... evidence is that neither members of the committee nor other members of the council read the report. It may have been available in an office for them to read if they wished to do so. The decisions of the committee were approved by the Council at its last meeting on 26 March 1996.

The Welsh Office also had sought advice about the feasibility of publishing the Jillings Report and had consulted Treasury Counsel. We have not seen any written opinion given by the latter but in a letter to Loveridge (as Director of Legal and Administration for Flintshire County Council the designated successor authority to Clwyd in respect of insurance matters) dated 14 May 1996 the Welsh Office did state:

It is not normal practice for Treasury Counsel's advice to be made available or divulged to third parties in the way that you have suggested. However I can advise you that while in our discussions with Counsel he has generally endorsed [the opinion of the counsel instructed by Clwyd] on this matter he has indicated that it should be possible to publish an edited version of the Report's recommendations. This could be accompanied by some newly-drafted contextual passages which would explain the basis on which the recommendations are made.

At this time the Welsh Office was encouraging the successor authorities to produce an edited version of the Jillings recommendations but was unwilling to publish such a document itself. The successor authorities did not at first reject the idea of publication and discussed with Jillings the possibility of preparing a "safe" version but they concluded by 6 June 1996 that they could not publish the report and the Secretary of State was so informed. The problem then receded however with the Prime Minister's preliminary announcement on 13 June 1996 of the Secretary of State's intention to institute a public inquiry.^[10]

This was the Waterhouse inquiry. It reported in February 2000.

5 The Waterhouse Report 1996-2000

1.16

Waterhouse noted that the legal problems surrounding the Jillings report were "more complex but essentially similar"

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Clwyd found not only that it might expose itself to legal actions if it published the Jillings report but also that it might jeopardise its insurance cover. Waterhouse concluded that the insurers were right actively to alert the council to these dangers:

Looking at the part played by the insurers' representatives in this history as a whole we accept that they acted throughout with the honourable intention of preventing Clwyd County Council its officers and members from acting in such a way that the insurers would be compelled to repudiate liability for claims by victims of abuse or by persons who alleged that they had been libelled by either report. The insurers' representatives adopted an interventionist role with this objective so that Clwyd knew where it stood in the matter; and in our judgement that was strongly preferable to a passive role that might well have led to repudiation with grave consequences for the Council and many others.^[12]

The insurers' representative to the Waterhouse inquiry accepted that the insurers had gone too far:

[I]n hindsight they accept that at times the tone of the correspondence on their behalf was intemperate and went too far in the demands made of the Council. They accept also that their approach to the dilemma of striking a balance between the duty of a council to seek the truth and identify reforms on one hand and its duty to protect its financial interests on the other may be open to criticism.^[13]

Waterhouse did not make any further criticism of the insurers. Instead he referred to steps being taken to produce guidelines for local authorities ^[14] and enumerated the following legal questions:

Firstly in relation to the law of defamation the following questions arise:

(1) 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?

(2) If not should not the limits of legitimate publication of such reports be defined in order to safeguard the position of elected members and officers in discharging their public duty?

(3) If the issues are not considered suitable for legislation should there not be central government guidance to local authorities on them including guidance as to the format of inquiries and the content of reports?

(4) Is similar legislation or guidance desirable for other public authorities that may need to institute inquiries into matters of wide concern?

We consider that the problems underlying these issues are likely to recur quite frequently and that they are suitable for consideration by the Law Commission.^[15]

These questions crystallised into our terms of reference.

6 Terms of reference

1.20

On 19 February 2001 the Commission was asked:

[t]o consider the concerns raised in paragraphs 32.44 – 32.62 of the Waterhouse Report that in some circumstances local authorities may be unduly constrained by threat of actions or loss of insurance cover from making public acting upon and identifying necessary reforms in the light of the results of inquiries conducted by them or on their behalf.

Having regard to the matters of tort and contract raised in those paragraphs to review:

(a) the law of defamation as it applies and the privilege that such authorities can claim in such circumstances;

(b) the possible loss of public interest immunity or privilege against disclosure and the making of admissions of liability in such circumstances;

(c) the way in which existing practices for insuring local authorities against liabilities in relation to defamation or other torts may contribute to these problems.

To recommend courses of legislative and/or administrative action that would better enable local authorities to take effective action in response to matters of serious public concern contained in such inquiries and to do so in as open a way as appropriate.

1.21

Though our terms of reference are restricted to local authorities

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7 The consultation paper (CP)

We published our CP "Publication of local authority reports" on 23 April 2002. There we provisionally concluded that there were legal difficulties which inhibited local authorities responding to matters of serious public concern as openly as they should especially in relation to the publication of reports of ad hoc inquiries namely inquiries established on a one-off basis.

1.23

(1) an effective Agreement to be drawn up by the insurers and the local authorities (overseen by Government if appropriate) to promote better insurance practice;

(2) a Code of Practice for the conduct of local authority ad hoc inquiries and

(3) possible reform of the law of defamation.

1.24

We concluded that only the third of these was suitable for further detailed work by the Law Commission. We also asked whether current powers relating to the holding of inquiries were adequate.

1.25

We received 53 substantive responses. We also benefited from responses to questionnaires sent out by the Society of Local Authority Chief Executives (SOLACE) to Chief Executives of local authorities and to Chairs of inquiries which the SOLACE Review Group

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8 Structure of this report

Part II answers the following basic questions: what constitutes a local authority in this context? what is an ad hoc inquiry? and what are the legal bases for a local authority to set up an ad hoc inquiry?

1.27

Most of the problems we identified related to the liability insurance position of local authorities; we analyse those problems in Part III. Some of those problems we conclude have non-legislative solutions. We set these out in Part IV.

1.28

The area of law where there did seem to be a problem amenable to legal reform was that of defamation and in particular the defence of qualified privilege. We describe the law and analyse its deficiencies in Part V; and set out our recommended reforms in Part VI.

1.29

The CP also asked whether the powers of inquiry currently available to a local authority were adequate. Response to the consultation suggested this was an issue to be taken further. Part VII argues the case for a new statutory power of inquiry; Part VIII describes the new power we recommend.

1.30

Our recommendations are brought together in Part IX.

1.31

A draft Bill with Explanatory Notes for giving effect to our recommendations is in Appendix A. Appendices B and C are documents produced by others which we think contain useful and practical guidance. Appendix B is guidance produced by the SOLACE Review Group. Appendix C is advice issued by the Department of Health in 2002 to those conducting investigations and inquiries in the Health Service. In particular it addresses the precautions which should be taken to avoid losing the protection of qualified privilege. We are grateful to both bodies for their permission to reproduce those documents. Appendix D provides background information about powers of inquiry open to bodies other than local authorities. Appendix E lists those who responded to the Consultation and who advised or attended meetings relating to the Consultation.

9 Summary of the recommendations

1.32

Underpinning our report is the proposition that local authorities must act in the public interest. It is also in the public interest that local authorities are accountable when things go wrong. To enhance this accountability we make two principal recommendations for reform of the law: first to amend the law of qualified privilege; second to create a new power of inquiry.

10 Qualified privilege

1.33

We recommend that the law on qualified privilege be statutorily amended in order to clarify the circumstances in which it is available to local authorities as a defence in defamation actions. Where a local authority publishes a report of an ad hoc inquiry (or of an Overview and Scrutiny Committee inquiry) into a failure in its provision of services either to the general public or to a section of it the authority should be able to rely on the defence of qualified privilege so long as either the publishing authority is satisfied that the inquiry and report were fair or they were in fact fair.

1.34

If the authority is not satisfied that the inquiry and report were fair or it fails to take reasonable steps to check whether they were fair and in fact they were not fair the new statutory privilege should not be available. Nor should the common law privilege which would otherwise be available.

11 Local authority special inquiries

1.35

Currently there is a gap in the system. If witnesses will not co-operate with a local authority ad hoc inquiry and no inquiry is established by central government those immediately affected and the public in general will never have a full account of how things went wrong.

1.36

We recommend that principal local authorities should have a new statutory power to establish an inquiry which would itself have power to apply to the High Court for an order compelling a witness to give evidence to the inquiry. While the initiative would lie with the local authority in setting up the inquiry and with the inquiry in asking the court for an order whether the order was made would be decided by the Court. This will achieve a balance between enabling democratically elected bodies to account for failures in performance through an effective inquiry but without putting powers of compulsion in the hands of a non-judicial body.

1.37

Such special inquiries will also help government fulfil its obligations under the European Convention on Human Rights and Fundamental Freedoms ("ECHR") and under the European Charter of Local Self-Government. The ECHR requires effective investigation into deaths or serious harm in certain circumstances. Under the Charter the Government is committed to principles of local government through the European Charter of Local Self-Government.

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Such special inquiries would also allow deaths of people for whom local authorities have a responsibility to be investigated as effectively as deaths of people in custody which currently require an inquiry by the Prisons and Probation Ombudsman.

12 The impact of our recommendations

1.39

A full cost-benefit analysis of our recommendations lies outside the expertise of the Commission. Some of the benefits are by their nature unquantifiable; others are quantifiable – at least they could be estimated. Here we outline what we see as being the probable benefits and costs.

13 Recommendations in Part VI: qualified privilege

1.40

The recommendations to make qualified privilege a more certain defence will have the effect of making publication of inquiry reports (either in full or in part) more likely. This has benefits in terms of local accountability and transparency. These are benefits for the complainants in individual cases for the inhabitants of local authority areas who are consequently better informed and for the public interest at large.

1.41

Greater certainty in knowing whether a report may be published without provoking a realistic claim in defamation should give greater confidence to local authorities and their insurers about their potential liabilities.

1.42

If a report which makes recommendations for future changes in practice can be published widely then it is more likely that the recommendations will bear fruit so that errors of the past are not repeated. This is another benefit.

1.43

1.44

Many local authorities already scrutinise inquiry reports before publishing them. Increasingly they obtain legal advice on the contents of reports before publication. If our recommendations are adopted all principal local authorities will be prompted to review reports before publishing them. Publication of reports which lead to proceedings should be less likely. This should reduce litigation costs. While inquiry reports are not currently a frequent source of litigation if a defamation action can be avoided this will represent a substantial saving in litigation costs to the local authority.

1.45

Local authorities which do not already scrutinise inquiry reports or obtain legal advice on them may need to increase expenditure to ensure this happens.

1.46

There is no public funding for claimants in defamation proceedings. Thus our recommendations have no impact on the public purse in this respect.

14 Recommendations in Part VIII: special inquiries

1.47

Our recommendations for a local authority special inquiry would allow a local authority to initiate an inquiry into a serious service failure in the expectation that the inquiry will be able to obtain the evidence it needs. This cannot always be achieved at present.

1.48

Effective local inquiries will answer questions about why the service failure happened. This can mean finding out why a person died or suffered or how public funds were misspent. "Knowing what happened" may be an unquantifiable benefit but is we think very important.

1.49

Increased transparency also promotes better practice; thus standards of public services should improve. It would also promote local accountability and confidence in local democratic institutions.

1.50

Such inquiries will facilitate compliance with the State's obligations for effective investigations under the ECHR.

1.51

The fact that a local authority special inquiry can apply to the High Court for an order compelling a witness to attend and to answer questions or produce items to it will lead to costs additional to those of a normal ad hoc inquiry. The costs of running a special inquiry may be higher than those for an ad hoc inquiry.

1.52

Persons required to attend a special inquiry who might otherwise have avoided attending may also face additional costs.

1.53

If a special inquiry makes an application to the High Court for a witness order that has costs implications for the inquiry (and the local authority commissioning the inquiry) and for the court. The costs incurred by a witness appearing before the court to resist an application by the inquiry may have to be borne by the witness or by the inquiry. Public funding should be available on a means and merit-tested basis to the witness via the Community Legal Fund administered by the Legal Services Commission.

1.54

If a witness did not comply with an order from the High Court civil contempt proceedings could ensue with attendant costs implications for the court service the inquiry and public funding for litigants.

1.55

While costs may be significant in the particular case it does not follow that the overall impact will be large. There is unlikely to be a very large number of local authority special inquiries each year. Even where such an inquiry was established it would not necessarily follow that any applications to the court would be needed at all. Civil contempt proceedings resulting from a special inquiry would we anticipate be rare.

15 Implications of our recommendations

1.56

There are three implications of our recommendations to which we draw attention which the Government may need to consider.

16 Inquiries other than ad hoc inquiries

1.57

First it may be asked why our proposals are limited to ad hoc inquiries. We took the view that the principal difficulties for local authorities arose where inquiries were established under general powers rather than under specific powers or duties to establish inquiries. In the latter cases there could well be prescribed rules of procedure which could cut across our recommendations. We did not have the authority to review all such inquiry powers.

1.58

Of course it may be that the approach we have adopted in relation to ad hoc inquiries is one that is found to be sensible and practical and one which could be extended to other contexts. But this would be a matter for Government not this project.

17 Inquiries by other public bodies

1.59

Second the effect of our recommendations is to put inquiries established by local authorities into a special category. We think this is fully justified not just because that was what our terms of reference asked us to consider but - more importantly - because local authorities hold a particular place in our system of government that makes it important that they can fully account for their actions to their electorate.

1.60

However it may well be the case that other public bodies (outside central government

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This issue will be particularly obvious where as may often happen a local authority establishes an inquiry jointly with another public body such as the National Health Service or the Police or Probation services.

1.62

The recent indication by the Department of Constitutional Affairs that they are considering the possibility of new legislation relating to inquiries

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18 Review of the law of defamation?

Third there may be concern that making adjustments to the law of defamation by the creation of a new form of statutory qualified privilege may have consequences for the law of defamation in general.

1.64

We have been careful to ensure that our proposals are confined to the position of the local authority as publisher of the inquiry report. It may be asked why the actual members of the inquiry team should also not be able to take advantage of the new qualified privilege. We have taken the view that when they publish to the local authority they will be able to assert the ordinary common law of qualified privilege and they are already adequately protected. We do not think it right to extend our proposals beyond the narrow boundaries set by our terms of reference. Again it is a matter for Government to consider whether there should be a wider review of the law of defamation.

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Note 1    Lost in care: Report of the Tribunal of Inquiry into the abuse of children in care in the former county council areas of Gwynedd and Clwyd since 1974 HC 201 (“the Waterhouse Report”). This inquiry was set up under the Tribunals of Inquiry (Evidence) Act 1921.    [Back]

Note 2    Law Commission Consultation Paper No 163 “Publication of Local Authority Reports” (2002).    [Back]

Note 3    The Waterhouse Report para 2.01.    [Back]

Note 4    An ACPC is a multi-agency body which is charged with co-ordinating child protection measures in the area of the local authority. It includes the social services and educational local authorities health services the police and probation services. See further para 2.33 below.    [Back]

Note 5    Now operating under the name of Zurich Municipal.    [Back]

Note 6    The Waterhouse Report para 32.36.    [Back]

Note 7    The County Solicitor to Clwyd.    [Back]

Note 8    Qualified privilege is discussed further below Part V.    [Back]

Note 9    The report was made available to councillors but in an extremely restricted way: it was not even circulated to them. It was to be discussed by the relevant committee in private and there was to be no discussion of its contents with the media or the public. There would then be no adverse impact on any pending criminal trials.    [Back]

Note 10    The Waterhouse Report paras 32.49 – 32.51.    [Back]

Note 11    The Waterhouse Report para 32.58.    [Back]

Note 12    The Waterhouse Report para 32.60.    [Back]

Note 13    The Waterhouse Report para 32.60.    [Back]

Note 14    See paras 4.4 – 4.16 below.    [Back]

Note 15    The Waterhouse Report para 32.61.    [Back]

Note 16    We define “local authority” at paras 2.2 – 2.5 below.    [Back]

Note 17    SOLACE set up a Group to review guidance on the conduct of local authority ad hoc inquiries. See para 4.2 below.    [Back]

Note 18    The UK signed the treaty on the 3/06/1997 and ratified it on the 24/04/1998 with the date of entry into force on the 1/08/1998. The Charter commits the parties to applying basic rules guaranteeing the political administrative and financial independence of local authorities.    [Back]

Note 19    Inquiries established by central government are in a different position as their reports will usually be published by Parliament and thus attract absolute privilege.    [Back]

Note 20    See Effective Inquiries: A Consultation Paper from the DCA CP 12/04 May 2004. See in particular 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 local authority inquiries could not be considered in the context of this review.    [Back]

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