Local authorities in the UK use the uncertainty around England’s archaic libel law to silence criticism of their actions. Michael Harris reports

The government’s draft defamation bill — presently under scrutiny from Parliament’s Joint Select Committee — contains measures to exclude such bodies from bringing defamation actions.

This springs from a 1993 court decision now referred to as the Derbyshire judgment. This ruling established the principle that public bodies such as councils, local authorities and government departments may not sue for libel.

Index on Censorship, as part of the Libel Reform Campaign, backs this principle.

In recent years councils have circumvented the Derbyshire judgment by funding the actions of individual staff members and elected councillors. Bedford Borough Council, South Tyneside Council and Carmarthenshire County Council have all used public money to fund defamation cases on behalf of employees, contrary to the spirit of the Derbyshire judgment.

A 2004 parliamentary order allows local authorities to protect elected councillors and staff if they are sued for defamation, but does not permit them to bring an action as a claimant. But as Wesley O’Brien, a solicitor at Bevan Brittan pointed out in Local Government Lawyer magazine, local authorities can fund a claim brought by an individual officer, and assist them if it can justify this expenditure:

 As the law currently stands, a local authority can fund a claim brought by an individual officer [council staff member] and it can also assist an officer in defending such a claim, where it considers such public expenditure to be justified. The position is, however, different for members where a local authority is only entitled to fund a defence, but not a claim…The only condition is that the statements made must refer to and be defamatory of the individual concerned.

Jonathan Heawood of English PEN said:

It is of fundamental importance in a democracy that citizens are able to express their views — even potentially offensive or distressing views — about their government, at a national or local level. Local authorities, or any public body, should not be using our libel laws to silence criticism.

The following examples demonstrate how to silence public criticism.

Bedford Borough Council

In 2002-2003 Bedford Borough Council agreed to indemnify its Chief Executive, the council’s solicitor and the council’s employed lawyer against the risk of paying the Defendant’s costs in a libel action brought by the three employees against a Conservative party election agent and a local newspaper. Two of the employees lost their claims at first instance, but an appeal was successfully pursued to the Court of Appeal (without any further offer of indemnity from the council) so the indemnity was never in fact used.

Carmarthenshire County Council

After a libel action between a council planning officer and a local couple, Carmarthenshire County Council changed its constitution so that public money can now be used to bring defamation actions by Council staff or members. The libel action between Kerry and Jacqui Thompson from Llanwrda and the local authority’s director of planning Eifion Bowen, arose from letters circulated by the couple which were never published in the wider media. The Thompsons apologised to Mr Bowen at a hearing in October 2007 when they were given 12 months to pay legal costs totalling £7,000.

The following year, Carmarthenshire County Council changed its constitution so public money could be used for libel actions; an FOI request revealed its total legal costs from external organisations (solicitors and counsel) rose from £364,369 to £711,832.

South Tyneside Council

South Tyneside council is currently proceeding with a libel action on behalf of its council leader Cllr. Iain Malcolm, fellow Labour councillor Ann Walsh and independent councillor David Potts, alongside borough regeneration boss Rick O’Farrell. Normally, defamation actions brought on behalf of councillors are not allowed under the Local Authorities (Indemnities for Members and Officers) Order 2004, and the Derbyshire principle, but as the first stage of the case is being pursued in California the council may be exempt.

The council managed to get an order from the Superior Court of California forcing Twitter to name an anonymous blogger (“Mr Monkey”) who was a vocal critic of the authority. South Tyneside has refused to reveal its legal costs, but has said the figure would be less than £75,000.

Like the Bedford Borough Council case, a council spokesperson defended the action on the basis of a duty of care:

The Council has a duty of care to its employees and, as this blog contains damaging claims about council officers, legal action is being taken to identify those responsible.

The amount spent is under the threshold required for the decision to go to the council’s cabinet for approval. If it did need to go the council’s cabinet it would cause a serious conflict of interest as council leader Iain Malcolm is a plaintiff in the case, and as leader he selects the council’s cabinet (which grants these councillors an additional allowance of £9,408.96).

The Libel Reform Campaign put the following questions to Mark Harding, Head of Legal Services at the council:

1. Will the council attempt to overturn the Derbyshire principle and fund a libel action for the above-stated individuals?

2. What legal advice has the council sought in regards to the Derbyshire principle, and whether your authority can pursue such an action?

3. Has the council funded the action on the basis that the defamation action is being taken through the Californian courts and is therefore exempt from the Derbyshire principle?

4. If the council is not going to pursue a defamation action, have you or will you share the information disclosed by the Californian courts with the individual claimants?

5. If you will share or have shared this information, do you intend to reclaim from the individual claimants the costs incurred by the local authority in seeking this information?

6. What are the total costs of this legal action, and has the council taken out After The Event (ATE) insurance for this case?

You can read his responses here

Independent councillors have alleged this defamation action is “an attempt to identify the whistleblowers who supplied information about Newcastle Airport.” The whistleblowers made public the payment of £8.5m to two executive directors of Newcastle Airport (jointly owned by five councils including South Tyneside) during a £377m refinancing deal with the Royal Bank of Scotland. Cllr Iain Malcolm was one of the five individuals on the remuneration committee who approved the payments to the directors. According to the Daily Mail, “advice from a senior colleague urging them to think again was ignored.”

Correction appended

In an earlier version of this article, the section on Bedford Borough Council relied on Hansard. We suggested that the libel action undertaken by Bedford Borough Council had not succeeded and the Council had paid the costs of £400,000. We apologise for this error.