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You are here: BAILII >> Databases >> The Law Commission >> PUBLICATION OF LOCAL AUTHORITY REPORTS (A Consultation Paper) [2002] EWLC 163(SUMMARY) (20 March 2002) URL: http://www.bailii.org/ew/other/EWLC/2002/163(SUMMARY).html Cite as: [2002] EWLC 163(SUMMARY) |
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Executive summary
1. In February 2000 Sir Ronald Waterhouse published the results of the inquiry he chaired into abuse of children in care in North Wales.[1] Concern was expressed in the Waterhouse Report that in some circumstances local authorities may be unduly inhibited from acting in the wider public interest. They might be constrained by threat of legal action or loss of insurance cover from publicising failures in service delivery and from acting on inquiry recommendations, and identifying necessary reforms in the light of the results of inquiries conducted by them, or on their behalf.
We provisionally conclude in relation to admissions of liability that
· the local authority’s co-operation with the inquiry may be impeded if there is a risk that evidence given to the inquiry panel will amount to an admission of liability in breach of the insurance contract;
· it is not sufficiently clear what kind of admission will be treated as an admission of liability within the terms of the insurance contract;
· it is not sufficiently clear what kind of act by the council will amount to an admission of liability, especially in relation to its response to an inquiry report;
· the lack of clarity might either result in a breach of the insurance contract, or lead an authority to make less full disclosure than it could to an inquiry panel, or to hold back from publishing the inquiry report for fear of invalidating the insurance contract;
· the interests of the insurer and the local authority may conflict: if the insurer withholds consent, publication could be impeded where it ought not to be.
7. In relation to waiver of rights, we provisionally conclude that
· waiver of the right of confidence in a document or communication may entitle the insurer to avoid the contract because waiver without the insurer’s consent would be a breach of an express term of the contract;
· legal professional privilege depends on confidentiality;
· an authority must not therefore waive a right which it has to confidentiality, and thus legal professional privilege, in a communication without the permission of the insurer.
We wish to know whether fear of waiving these rights, in breach of the contract of insurance, leads to evidence being withheld from an ad hoc inquiry.
8. And in relation to defamation, we provisionally conclude that
· from the point of view of the insurers and of the authorities, there are two main concerns in relation to defamation: (1) avoiding precipitating an action for defamation, especially one which will be hard to defend, and (2) the impact on the insurance contract;
· the degree of uncertainty about the availability of the common law defence of qualified privilege is likely to promote an overly cautious approach to publication;
· without some clarification or change in the law, authorities and insurers can only avoid the risk of publishing, being sued, and finding that the defence of qualified privilege is not applicable, by a very cautious approach, which is not in the public interest; and
· legislative reform in relation to qualified privilege is therefore desirable.
12. The legislative reform which we put to consultees for their consideration is:
to extend 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.
[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 on 17 June 1996.