Publish and be damned

Last year Newcastle Council was criticised by a High Court judge
over the conduct of an inquiry into allegations of sexual abuse
against two nursery workers.

Dawn Reed and Christopher Lillie had been charged with abusing
children in their care at Shieldfield nursery in 1993, but were
acquitted a year later. The council responded to pressure from
parents of children at the nursery by rejecting the ruling and
launching its own independent inquiry. The report, published in
1998, suggested the pair were guilty. Reed and Lillie successfully
sued the council and the report’s authors for libel in July
2002.

The case highlights the significant pitfalls that exist for
councils running similar inquiries. But how can they avoid them?
Advice on this is contained in recent guidance from the Society of
Local Authority Chief Executives and Senior Managers (Solace),
which defines an “ad hoc inquiry” as “one which is established by
local authorities in circumstances which are not already governed
by a statutory or other procedural code and which might involve
serious complaints against the authority or a failure in its
services or administration”.¹

Ad hoc inquiries can cover an array of subject matter, such as
concerns after a death, teenage pregnancies in residential homes,
child abuse and disputes over grants to voluntary organisations. As
a result it is difficult to establish a set of rules to cover all
eventualities, says Roger Jefferies, former president of Solace and
chairperson of the review group which put together the guidance.
The procedure should be proportional to the matter under
investigation, he says. “You need to balance the seriousness of the
issue and the need to give public credibility to the exercise, and
set that alongside the protection of the individuals giving
evidence.”

If an individual is criticised in an inquiry report they may sue
for defamation. Normally, an inquiry panel and the local authority
that set up the inquiry will have a special defence – qualified
privilege – which protects them, even if what is said in the
inquiry report is untrue. This protection is lost, however, if
either party acted with malice. In the Newcastle case, Mr Justice
Eady ruled that this was what the four reviewers had done in their
report, saying: “They included in their report a number of
fundamental claims which they must have known to be untrue, and
which cannot be explained on the basis of incompetence or mere
carelessness.”

He ordered that the review team pay Lillie and Reed £200,000
each in libel damages. In the end, the bill – which came to
£2m for damages and costs – was covered by insurance as the
council had indemnified the inquiry team. Although the council was
cleared of malice, the judge apportioned the main blame at its door
for sanctioning an inquiry into allegations that were tantamount to
criminal offences, with a view to publishing a report without
appropriate safeguards for the accused.

There is no set procedure for ad hoc inquiries, and each authority
and inquiry panel has to work out what a fair procedure is going to
be in each case. Christina Hughes, a lawyer at the Law Commission,
says: “It must not be biased, it should approach the matter with an
open mind, it should explore the different versions of events and
it should give each person a chance to know what is being said
against them. The conclusions that the inquiry reaches should be
supported by the facts.”

Publishing the report can be another minefield. Hughes says: “The
authority needs to consider carefully what is published and how
this can be done. Simply making people who are criticised in the
report anonymous is not a solution. Issues of confidentiality will
also need to be considered. Again, this may require more than
making people anonymous.”

Members and officers also need to be aware of whether there is a
political reason behind the decision to publish the report, as it
could amount to an improper motive and the authority losing its
defence of qualified privilege.

Sir Ronald Waterhouse published the results of the north Wales
child abuse inquiry in 2000. At the time, he expressed concern that
local authorities could be inhibited from acting in the wider
public interest because by publicising failures in service delivery
– or acting on inquiry recommendations – they might face the threat
of legal action or loss of insurance cover.

He recommended that the Law Commission examine the legal issues
surrounding the publication of local authority reports and consider
whether there is a need to reform the law. Hughes is the lawyer in
charge of this project. A consultation paper Publication of
Local Authority Reports was published last April and the final
report is expected later this year.²

The Newcastle case is an exceptional example and most ad hoc
inquiries are straightforward. But child care law specialist Allan
Levy QC warns councils to ensure that inquiries are independent and
impartial with no semblance of bias, particularly where criminal
proceedings have been quashed. Access to legal expertise is
essential, he says. Most major inquiries have either a lawyer or a
judge on the panel to ensure that evidence is evaluated
properly.

This is important, Levy says, because an inquiry applies a
different standard of proof than a court case and the evidence may
be different. Whereas a criminal case looks at whether a particular
charge is proved, an inquiry can look into the background and
circumstances. Levy says: “An inquiry has a much more relaxed
approach. For example, it will listen to hearsay evidence which
isn’t acceptable in court, so it will have a broader
picture.”

The Lillie and Reed case demonstrates how much care councils must
take. Jefferies advocates all local authorities to read the
judgement before setting up any similar inquiry. “It highlights
what traps there might be if you don’t think them through from the
outset,” he says.

¹ Getting it Right: Guidance on
the Conduct of Effective and Fair Ad Hoc Inquiries, Solace,
2002

² For more information see the Law Commission website
at
www.lawcom.gov.uk

Safety first

The Society of Local Authority Chief Executives and Senior
Managers has published a series of guidelines in Getting it
Right for councils to consider when setting up an ad hoc
inquiry. They include the following. 

• Why is an inquiry necessary, and will it be independent? 
• Terms of reference should set the direction and limits of the
  inquiry. They should be in writing, make clear the aims, whether it
  is intended to attribute responsibility in appropriate
  circumstances and whether it is expected to make recommendations.
  The council should make clear the issues it does not want the
  inquiry to address and be prepared to justify in public any
  restrictions it imposes. 
• Will it take place wholly or partly in public or private? Most
  ad hoc inquiries have been held in private, but an inquiry into a
  matter of great public concern should in principle be conducted in
  public. 
• Should the chairperson be a practising lawyer or legally
  trained? If non-lawyers are used and there is a panel with no legal
  representation, the council should ensure that the chairperson has
  free access to appropriate legal advice. 
• Local authorities must be prepared to offer inquiry teams an
  indemnity. 
• A local authority may need to consider whether any of the
  issues being considered might be the subject of insurance
  indemnity. 
• Have proceedings been agreed that are fair to all and avoid
  trespassing on disciplinary or criminal matters? 
• Will the report be published and, if so, how?  
• What assurances will be given to witnesses about
  confidentiality?