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You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Foreign And Commonwealth Office v Warsama & Anor [2020] EWCA Civ 142 (11 February 2020) URL: https://www.bailii.org/ew/cases/EWCA/Civ/2020/142.html Cite as: [2020] 3 WLR 351, [2020] EWCA Civ 142, [2020] 4 All ER 486, [2020] QB 1076 |
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ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
MASTER VICTORIA McCLOUD
Strand, London, WC2A 2LL |
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B e f o r e :
LORD CHIEF JUSTICE OF ENGLAND AND WALES
THE RT HON LORD JUSTICE COULSON
and
THE RT HON LADY JUSTICE ROSE DBE
____________________
Case No. A2/2019/0240 |
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(1) THE FOREIGN AND COMMONWEALTH OFFICE (2) MS SASHA WASS QC |
Appellants |
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- and - |
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(1) MR MARTIN WARSAMA (2) MS CLAIRE GANNON - and - THE SPEAKER OF THE HOUSE OF COMMONS |
Respondents Interested Party |
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Case No. A2/2019/1967 |
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(1) MR MARTIN WARSAMA (2) MS CLAIRE GANNON |
Appellants |
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- and - |
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(1) THE FOREIGN AND COMMONWEALTH OFFICE (2) MS SASHA WASS QC - and - THE SPEAKER OF THE HOUSE OF COMMONS |
Respondents Interested Party |
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Alan Payne QC (instructed by the Government Legal Department) for the Second Appellant
Nicholas Bowen QC and David Lemer (instructed by Meaby & Co LLP) for the Respondents
Ms Saira Salimi (Counsel to the Rt. Hon the Speaker of the House of Commons) appeared by way of written submissions for the Speaker
Hearing dates: 27 and 28 November 2019
____________________
Crown Copyright ©
The Lord Burnett of Maldon, Lord Justice Coulson and Lady Justice Rose:
Introduction
i) an assessment of the role of the FCO and the Department for International Development ("DFID") in responding to allegations made about child abuse;
ii) an appraisal of the response of the St Helena authorities to specific child safety incidents detailed in the allegations and whether further investigation, including criminal investigation, was required;
iii) a review of the relationship between St Helena's social services and its police service; and
iv) an assessment of the treatment of and support given to whistle-blowers who bring child safety concerns to the authorities' attention.
"1. The Claimants are not prevented on the grounds that the Wass Inquiry Report is privileged as a proceeding in Parliament pursuant to Article IX of the Bill of Rights 1689, from continuing to pursue any grounds of claim which relate to actionable harms (including loss of a chance of a better outcome), which neither seek to impugn or call into question the correctness of the content of the report nor to claim remedies arising from consequences of its publication in the form in which it was published by Parliament.
2. In particular (for avoidance of doubt and non-exhaustively) the grounds pleaded in the Particulars of Claim in relation to the decision to conduct the inquiry in the form in which it was conducted, the process and procedure of the inquiry (including in respect of forewarning and seeking explanations from the Claimants prior to conclusion of the report), and decisions made as to disclosures of information during the process of the inquiry are not barred by virtue of Parliamentary Privilege. (See para. 113 of judgment).
3. The Claimants are prevented, on the grounds that the Wass Inquiry Report is privileged as a proceeding in Parliament pursuant to Article IX of the Bill of Rights 1689, from pursuing claims which seek to impugn or otherwise challenge the correctness or otherwise of the content of the Wass Inquiry Report or from pursuing claims arising from the consequences of its publication in the form in which it was published by Parliament. (See paras. 115-116 of judgment but as to admissibility in evidence of the report on other matters see also para. 112)."
i) The Parliamentary privilege issue: is the Report a proceeding in Parliament for the purposes of article 9 of the Bill of Rights 1689 and, if so, what is the extent of the protection conferred by that privilege?
ii) The effect of Parliamentary privilege on the claims: having regard to the answer to the first issue, should the claimants' proceedings be struck out in their entirety or does some of their pleaded case survive to go forward to trial?
iii) Ms Wass' status as a public authority: is Ms Wass and the inquiry panel a public authority for the purposes of section 6 HRA?
ISSUE 1: PARLIAMENTARY PRIVILEGE
(a) Some preliminary matters
"That the freedom of speech and debates or proceedings in Parliament ought not to be impeached or questioned in any court or place out of Parliament."
"It is clear that statements made by Members of either House of Parliament in their places in the House, though they might be untrue to their knowledge, could not be made the foundation of civil or criminal proceedings, however injurious they might be to the interest of a third party."
(b) The case law of the European Court of Human Rights
"That members of Parliament cannot act with impunity even within the House is shown by the fact that in extreme cases, deliberately misleading statements may be punishable by Parliament as a contempt, while general control is exercised over debates by the Speaker of each House. It is true that neither of these aspects served to prevent, or sanction, the statement being made concerning the applicants. However, they remain relevant to the overall proportionality of the system and the balance between the competing interests."
"54. Moreover, it notes that this right is not absolute, but may be subject to implied limitations. Nonetheless, such limitations must not restrict the access left to the individual in such a way or to such an extent that the very essence of the right is impaired. Furthermore, they will not be compatible with Article 6 § 1 if they do not pursue a legitimate aim and if there is not a reasonable relationship of proportionality between the means employed and the aim sought to be achieved (see, among many other authorities, Khalfaoui v. France, no. 34791/97, §§ 35-36, ECHR 1999-IX, and Papon v. France, no. 54210/00, § 90, ECHR 2002-VII; see also a reminder of the relevant principles in Fayed, cited above, pp. 49-50, § 65)."
"81 … The risk of some uncompensated damage to reputation is inevitable if independent investigators in circumstances such as those of the present case are to have the necessary freedom to report without fear, not only to the authorities but also in the final resort to the public. It is in the first place for the national authorities to determine the extent to which the individual's interest in full protection of his or her reputation should yield to the requirements of the community's interest in the independent investigation of the affairs of large public companies. The applicants' argument would amount to reading into Article 6(1) an entitlement to have a report such as the one in the present case not published until after a full judicial hearing repeating, doubtless over a longer time-scale, the same fact-finding exercise as that already carried out by the Inspectors. Such an entitlement could effectively destroy the utility of informing the public of the results of the administrative investigations provided for under section 434(2) of the Companies Act 1985. Having found the aim of not only making but also publishing the Inspectors' reports to be legitimate, the Court cannot apply the test of proportionality in such a way as to render publication impracticable."
(c) The Unopposed Return procedure
"It is not necessarily the case that all non-routine use of the Return procedure to publish reports is because of their controversial content. However, many of the reports published in this way have contained criticisms of individuals. In the 1950s and 1960s, there is very little evidence of the use of the Return procedure for the production of controversial documents. In the next two decades there was an increase in the number of occasions upon which the Return procedure was used for the production of documents. In the 1970s, in respect of about 10 of the reports published by the Return procedure, it would appear that there was some potential risk of legal action had they not been published in a way that ensured the protection of the 1840 Act. In the 1980s, probably six fell into this category. In both decades the greatest use of the procedure was by the Home Secretary, in two broad areas, namely prisons and the police. The reports on these areas were invariably critical of individuals and their work methods. Other examples were reports into a mental hospital, a fatal accident on the falsework for a new bridge, the Crown Agents affair, the smallpox outbreak in Birmingham, and the departmental handling of matters relating to Barlow Clowes. In several of these reports alterations had been made to minimise the risk of an individual thinking himself defamed without legal redress."
"As for the publication of the report as a return to an address, it is a well-established procedure which has been in place for more than 150 years. Its use does not imply any value judgment as to liabilities that might arise on particular individuals from the report, but it protects against that possibility, sets aside any uncertainty and enables all aspects of the report to be laid fully and clearly before the House." (HC Deb vol 217 col 880 (26 January 1993)
"44. In some cases the government may wish to lay a particularly sensitive report for which there is no statutory requirement or authority to lay, but for which the protection of Parliamentary privilege is needed (the Report of the Hallett Review is a recent example). You should contact the Journal Office as soon as possible if you are preparing a paper which falls into this category. The Journal Office can offer further written and oral advice. You should note that the advance agreement of the Clerk of the Journals is required and that a motion has to be tabled at least one sitting day in advance and moved and agreed to on the Floor of the House to allow the laying of a Return to an Address".
"In the Commons the procedure also survives in the form of 'Motions for Unopposed Returns' (see para 19.12) for particular documents which the Minister responsible for the government department concerned wishes to make public—hence they are 'unopposed'—but in respect of which the protection of statute afforded by an order of the House for printing or other publication is sought. Certain annual returns are, by custom, also presented to the House in the form of returns to orders."
"Immediately after private business is the usual time for moving motions for returns (of accounts and other documents) of which notice stands upon the notice paper for the day, and which the Minister responsible for the government department concerned has signified a readiness to render. Such motions are made by Ministers and may be made either at this time or at any other convenient opportunity.
It is a settled principle that a motion for a return which is proposed by the Minister responsible for the department concerned ought not to be opposed by any other Member and such opposition has been overruled by the Speaker."
"That an humble Address be presented to Her Majesty, that she will be graciously pleased to give directions that there be laid before this House a Return of parts of a Paper, entitled The Wass Inquiry Report into Allegations Surrounding Child Safeguarding Issues on St Helena and Ascension Island, dated 10 December 2015."
(d) The main authorities on "proceedings in Parliament"
"The primary meaning of proceedings, as a technical parliamentary term, which it had at least as early as the seventeenth century, is some formal action, usually a decision, taken by the House in its collective capacity. While business which involves actions and decisions of the House are clearly proceedings, debate is an intrinsic part of that process which is recognised by its inclusion in the formulation of Article IX. An individual Member takes part in a proceeding usually by speech, but also by various recognised forms of formal action, such as voting, giving notice of a motion, or presenting a petition or report from a committee, most of such actions being time-saving substitutes for speaking."
"47. The jurisprudence to which I have referred is sparse and does not bear directly on the facts of these appeals. It supports the proposition, however, that the principal matter to which article 9 is directed is freedom of speech and debate in the Houses of Parliament and in Parliamentary committees. This is where the core or essential business of Parliament takes place. In considering whether actions outside the Houses and committees fall within parliamentary proceedings because of their connection to them, it is necessary to consider the nature of that connection and whether, if such actions do not enjoy privilege, this is likely to impact adversely on the core or essential business of Parliament."
"61. There are good reasons of policy for giving article 9 a narrow ambit that restricts it to the important purpose for which it was enacted – freedom for Parliament to conduct its legislative and deliberative business without interference from the Crown or the Crown's judges. The protection of article 9 is absolute. It is capable of variation by primary legislation, but not capable of waiver, even by Parliamentary resolution. Its effect where it applies is to prevent those injured by civil wrongdoing from obtaining redress and to prevent the prosecution of Members for conduct which is criminal."
"the issue….is best approached by consideration of the broader principles which underline the relationship between Parliament and the courts. That relationship was elegantly described by Sedley J as 'a mutuality of respect between two constitutional sovereignties'." (para. 63)
"The prorogation itself takes place in the House of Lords and in the presence of Members of both Houses. But it cannot sensibly be described as a "proceeding in Parliament". It is not a decision of either House of Parliament. Quite the contrary: it is something which is imposed upon them from outside. It is not something upon which the Members of Parliament can speak or vote. The Commissioners are not acting in their capacity as members of the House of Lords but in their capacity as Royal Commissioners carrying out the Queen's bidding. They have no freedom of speech. This is not the core or essential business of Parliament. Quite the contrary: it brings that core or essential business of Parliament to an end." (para. 68)
"Papers published by order of either House have absolute privilege under the Parliamentary Papers Act 1840. The extent to which such orders are currently made by the House of Commons conflicts with the principle that absolute privilege should be confined to areas where it is needed. The House of Commons procedure committee should look into this matter."
"(1) For the purposes of article 9 of the Bill of Rights 1689 'proceedings in Parliament' means all words spoken and acts done in the course of, or for the purposes of, or necessarily incidental to, transacting the business of either House of Parliament or of a committee.
(2) Without limiting (1), this includes:
(a) the giving of evidence before a House or a committee or an officer appointed by a House to receive such evidence
(b) the presentation or submission of a document to a House or a committee or an officer appointed by a House to receive it, once the document is accepted
(c) the preparation of a document for the purposes of transacting the business of a House or a committee, provided any drafts, notes, advice or the like are not circulated more widely than is reasonable for the purposes of preparation
(d) the formulation, making or publication of a document by a House or a committee
(e) the maintenance of any register of the interests of the members of a House and any other register of interests prescribed by resolution of a House.
(3) A 'committee' means a committee appointed by either House or a joint committee appointed by both Houses of Parliament and includes a sub-committee.
(4) A document includes any disc, tape or device in which data are embodied so as to be capable of being reproduced therefrom."
"Presenting papers to the House of Commons is a well-established means used by government to publish its documents. The House of Commons has long insisted that it should be fully informed by government and should be the first to be informed.".
"351. This is primarily a House of Commons matter. We recognise that considerations other than privilege are involved. Disentangling practices developed over two centuries will require detailed examination. The 1970 joint committee on the publication of proceedings in Parliament drew attention to the 'somewhat haphazard manner' in which printing orders were accorded to some Act papers but not others, and recommended that rules should be prescribed. Neither House took any action on this recommendation. In 1980 the House of Commons Journal Office sought to institute a policy whereby printing orders would be restricted to reports and associated papers of committees of the House and reports and accounts accompanied by reports of the Comptroller and Auditor General. The policy met with opposition.
352. The Joint Committee considers the presumption should be 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. We recommend that the House of Commons procedure committee should act on this matter."
(e) The submissions of Counsel to the Speaker
(f) 'Proceedings in Parliament': discussion
" … An invocation of parliamentary privilege is apt to dazzle lawyers and judges outside Parliament. In Wellesley v Duke of Beaufort (1831) 2 Russ & M 639, 660, Lord Brougham LC warned courts of justice against acceding to claims of privilege "the instant they hear that once magical word pronounced …"
"Good progress has been made in implementing the recommendations of the inquiry report. The UK Government have increased the funding they provide to the St Helena Government for child safeguarding and for health and social care more generally, and improved co-ordinated efforts are bringing about real change. For example, Jamestown hospital is undergoing a £2.8 million refurbishment of its medical wing ... In addition, a funding uplift has enabled the rebuilding of a dedicated community nursing team and re-opening of three local health clinics. The safeguarding directorate and police service have rolled out a locally adapted version of "Working Together 2015" ... The Ascension Island Government have done likewise. All schools now have a designated child safeguarding lead. Most recommendations have been fully implemented, others are on course to being completed."
(g) The scope of the protection conferred by Article 9
"For these reasons (which are in substance those of the courts below) their Lordships are of the view that parties to litigation, by whomsoever commenced, cannot bring into question anything said or done in the House by suggesting (whether by direct evidence, cross-examination, inference or submission) that the actions or words were inspired by improper motives or were untrue or misleading."
ISSUE 2: THE EFFECT OF PRIVILEGE ON THE CLAIMS
i) Paras 1 to 3 constitute an introductory section.
ii) Paras 4 to 11 comprise a section entitled 'Factual Background'. Para. 11 (which is mirrored in style, if not substance, by para. 14 of Ms Gannon's pleading) sets out in detail the unflattering evidence about Mr Warsama recorded in the Report. This consists of 12 extracts from the evidence of nine witnesses who gave evidence to the Inquiry, each of whom was critical of him. It also notes the conclusion at para. 6.48 of the Report that Mr Warsama was 'incompetent, lazy and divisive'.
iii) Paras 12 to 16 set out article 8 ECHR and extracts from the case law. Para. 13 emphasises that excluding a person from employment in his chosen field can have serious repercussions on the enjoyment of his private life. Para. 14 refers to the procedural rights which it is said arise implicitly from article 8.
iv) Para. 17 sets out the alleged breaches of article 8. The master concluded that only sub-paragraphs 17(b) and 17(f) (highlighted below) survived the finding of privilege but, in deference to the submissions of Mr Bowen, we set out all those with a specific reference to 'procedure' as follows:
"17 (b) The conduct and procedure of the Inquiry and the publication of the report concerns allegations about the Claimant's professional performance while in St Helena which has had a significant impact on his professional career and his ability to continue employment in his chosen professions.
(c) The procedures and framework of the Inquiry which preceded the publication of the criticisms and the publication of the Inquiry report amount to an interference with the Claimant's right to respect for private life which cannot be justified under Article 8(2) …
(e) Even if (which is denied) a legitimate aim is established, then the Defendants would need to show that the procedure adopted by the Inquiry (in circumstances where the performance of the Claimant was not included in the terms of reference) and the publication of criticism about our client was proportionate.
(f) The procedure adopted by the Inquiry and the disclosure was well beyond the realms of the proportionate and was unnecessary, in particular given the Inquiry's terms of reference. There is no evidence that, in deciding what to publish or investigate, the Inquiry has balanced the rights of the Claimant against the rights of those it says it is trying to protect. If it had done so, the trenchant criticisms of the Claimant would not have been published, and sufficient safeguards in the Inquiry procedure would have been included.
(g) The Claimant takes further issue with the procedure adopted by the Inquiry before disclosure was made. Although the letter sent in September 2015 refers briefly to the nature of the criticisms to be made, there are no specific details or evidence to which the Claimant can respond, and no indication that the Claimant's detailed statement has been taken into account at all prior to the publication of the Inquiry report (other than the bald assertion that it has been)…
(k) The Inquiry, having been minded to include such trenchant (but unnecessary) criticism of the Claimant in the report, should have provided full information about those criticisms to have allowed the Claimant to express his views as to why the criticisms should not be included, and to take these into account before publication took place: See Lord Neuberger in the L case at paragraph 82…"
v) Paras 18 to 20 address the Parliamentary Papers Act 1840.
vi) Paras 21 to 25 deal with loss and damage. Paras 21 and 22 emphasise the direct link between the alleged breaches of article 8 and the alleged exclusion of Mr Warsama from his chosen profession:
"21 The breaches of Article 8 as set out above have had the effect of excluding the Claimant from his chosen profession, leading directly to the loss of employment, withdrawal of offers of employment and rejection of job applications. The devastating effects on the Claimant's future employment prospects would have been obvious from the breaches of Article 8 set out above.
22 There has been a significant impact on both the Claimant's ability to secure and retain a position, as well as on his personal and financial situation. When the Claimant left St Helena he secured employment through an agency, and held several successful posts with very good references stating his depth of knowledge to how hard he worked. At the time the Inquiry report was published the Claimant was employed by Norfolk County Council, but was asked to leave on 21 January 2016 as a result of the Inquiry Report. The Claimant has not been able to secure employment since."
Paras 24 to 26 of Ms Gannon's Particulars of Claim are in materially similar terms.
"1. We say that:
a. On a loss of chance/opportunity approach we are not challenging the content of the report but arguing that had an Article 8-compliant process been followed there was a real chance that a more favourable outcome would have been achieved – i.e. the conclusions would have been different.
b. These different conclusions would not have resulted in the professional damage suffered by these claimants – who have suffered the loss of an opportunity of a better outcome." (Emphasis supplied)
"A second difference between the European court and a national court is that the European court does not normally undertake detailed fact-finding in relation to damages in the way which a national court of first instance would do, at least in jurisdictions such as those of the UK. As it observed in Denizci v Cyprus 2, Reports of Judgments and Decisions, 2001-V, p. 225, para 315, "the court is acutely aware of its own shortcomings as a first instance tribunal of fact". The court referred in that connection to problems of language, to an inevitable lack of detailed and direct familiarity with the local conditions, and to its inability to compel the attendance of witnesses (or, it might have added, to secure the production of evidence). In consequence, it is often dependent upon the information and arguments put before it by the parties. If they conflict, rather than resolving the conflict it may say that it declines to speculate, or it may award damages for a loss of opportunity rather than undertaking a more definite assessment of the harm suffered. If, on the other hand, the material placed before it by the parties enables it to proceed upon a more detailed basis, it will do so. That will be the case, in particular, where the relevant facts have been found by the national court. To the extent that domestic courts, applying their ordinary rules of evidence and procedure, are able to resolve disputed issues of fact in circumstances in which the European court would not, and are therefore able to proceed upon the basis of proven facts in situations in which the European court could not, their decisions in relation to the award of damages under section 8 of the 1998 Act may consequently have a different factual basis from that which the European court would have adopted."
ISSUE 3: THE STATUS OF MS WASS UNDER THE HRA
"(3) In this section "public authority" includes -
(a) a court or tribunal, and
(b) any person certain of whose functions are functions of a public nature,
But does not include either House of Parliament or a person exercising functions in connection with proceedings in Parliament.
(5) In relation to a particular act, a person is not a public authority by virtue only of subsection 3(b) if the nature of the act is private."
"6. The purpose is that those bodies for whose acts the state is answerable before the European Court of Human Rights shall in future be subject to a domestic law obligation not to act incompatibly with Convention rights.
7. Conformably with this purpose, the phrase 'a public authority' in section 6(1) is essentially a reference to a body whose nature is governmental in a broad sense of that expression. It is in respect of organisations of this nature that the government is answerable under the European Convention on Human Rights. Hence, under theHuman Rights Act
a body of this nature is required to act compatibly with Convention rights in everything it does. The most obvious examples are government departments, local authorities, the police and the armed forces. Behind the instinctive classification of these organisations as bodies whose nature is governmental lie factors such as the possession of special powers, democratic accountability, public funding in whole or in part, an obligation to act only in the public interest, and a statutory constitution: see the valuable article by Professor Dawn Oliver, 'The Frontiers of the State: Public Authorities and Public Functions under the
Human Rights Act', [2000] PL 476."
At paras 11 and 12 he explained that there was no single test of universal application to determine whether a function was of a public nature. He indicated that public funding, the extent to which statutory powers were being exercised and whether the place of central government was being taken were factors.
"10. It will be relevant first of all to examine with some care the nature of the function in question. It is the nature of the function - public or private? - which is decisive under the section.
11. It is also relevant to consider the role and responsibility of the state in relation to the subject matter in question. In some fields the involvement of the state is long-standing and governmental in a strict sense: one might instance defence or the running of prisons. In other fields, such as sport or the arts, the involvement of the state is more recent and more remote. It is relevant to consider the nature and extent of the public interest in the function in question.
12. It will be relevant to consider the nature and extent of any statutory power or duty in relation to the function in question. This will throw light on the nature and extent of the state's concern and of the responsibility (if any) undertaken. Conversely, the absence of any statutory intervention will tend to indicate parliamentary recognition that the function in question is private and so an inappropriate subject for public regulation."
"17. It is necessary to stress that no summary of factors likely to be relevant or irrelevant can be comprehensive or exhaustive. The present question may arise in widely varying contexts and on widely varying facts. Other factors may then call for consideration."
Costs
Conclusion