Should public authorities be able to sue for libel?

The remarkable legal advice given to Rutland County Council suggests that councils can now sue - and threaten to sue - for libel. We should worry about the potential "chilling effect" of this.

It is a principle of the common law of England and Wales that a public authority cannot bring an action for defamation.  And this is right and proper, as being able to sue for libel (and thereby threaten to sue for libel) would have an unwelcome "chilling" effect on public criticism of governmental bodies.  Individual councillors and officers can sue for defamation, but not the authorities themselves.

However, this sensible legal safeguard appears to be under threat.  The City lawyers advising Rutland County Council are saying that the recently enacted Localism Act has changed the legal position, and now it is open to public bodies to freely sue - and threaten to sue - for libel.

Section 1 of the Localism Act provides for a "general power of competence".  In particular, the Act says that a "local authority has power to do anything that individuals generally may do"

It is not clear what this actually means, and the use of the imprecise word "generally" makes the scope of the provision inherently uncertain.  But what the external lawyers to Rutland County Council have taken it to mean is that a council can sue for defamation when it could not do so before.  And, interestingly, it is three of Rutland Council's own councillors which the council is considering whether to sue.

The advice of the lawyers is set out in full here (pdf).  The possibility of an action in defamation is set out at paragraph 11:

Some 20 years ago the Court of Appeal held that a local authority is not entitled to issue a defamation claim in its own name in connection with statements that damage the reputation of the authority as a whole (rather than the reputation of its individual officers or members)4 and this has been the accepted law.  However, in our view, this principle has been overturned by the general power of competence granted to local authorities by section 1 of the Localism Act 2011 (“the 2011 Act”).  This provision was brought into force on 18 February 2012 and gives a local authority the power to do anything which an individual generally may do.  An individual has the power to issue a defamation claim in its own name, and the 2011 Act contains no restriction which would prevent an authority from doing so.  Given the extent to which a local authority is now dependent on its public reputation for its ability to secure external funding, to attract competitive tenders for provision of services, or to recruit outstanding officers, it seems quite appropriate that the 2011 Act should now have brought the law up to date with the commercial reality.

However, this advice is not only illiberal, it seems misconceived.

First, it was not the Court of Appeal which made the ruling which is referred to, it was in fact the House of Lords.  The case was Derbyshire County Council v Times Newspapers and it was a unanimous decision of five Law Lords - including Lord Goff and Lord Browne-Wilkinson, two of the greatest common law judges of the post-war era.

The Law Lords held that, as a matter of public policy, Derbyshire County Council was not able to sue for defamation.  There would be, the Law Lords explained, an adverse effect on freedom of expression if a public body could sue in respect of unwanted criticism.  The point could not have been made more clear: "a local authority does not have the right to maintain an action of damages for defamation".

So does section 1 of the Localism Act now "overturn" this unequivocal statement of a very strong House of Lords?  Are the external lawyers of Rutland Council right?

With the proviso that law is ultimately what the courts say it is, and so any view on what is an untested point of law is a matter of opinion, it would appear that Rutland Council's lawyers have got this important point badly wrong.

The Law Lords in Derbyshire did not decide the case on what lawyers would call the "vires" (or powers) of a public body.  It was instead decided on an altogether different basis: that it should be public policy that councils cannot sue.  The Lordships did not doubt that corporations could, in principle, sue for libel; it was just that a certain class of corporations were not able to do so because it would not be in the public interest.  The 1972 case which said otherwise - Bognor Regis Urban District Council v Campion -  was expressly stated to have been wrongly decided.  In effect, their Lordships said "Bugger Bognor" and in a comprehensive review of domestic and foreign case law held that freedom of expression was always more important.

Accordingly, the Localism Act is irrelevant to the Derbyshire decision.  It deals with a different legal issue.  Section 1 does not create a right of action in tort which the House of Lords said no longer existed.  Neither does it refer to public policy.  In fact, it has nothing to do with whether a council can sue for libel, and it is worrying that a public authority is being advised that such a course of action is available to it.

Rutland Council is clearly divided.  A small group of councillors - "the Rutland Anti-Corruption Party" - is noisily calling for transparency and openness in the council's dealings.  Their latest statement accuses the council of significant wrongdoing.  This in turn is denied by the council, who make counter accusations.   At a distance, it is difficult to form a view on the merits of any of the accusations - and Rutland matters should, of course, be determined by Rutland people.

But what makes the matter of wider concern is the council's resort to legal advice on how to sue or otherwise legally threaten its very own councillors.  For if Rutland Council can sue its critics for libel, then it would follow that any council would be able to also do so, and it would be a brave citizen that would want to be a test case in any action for libel.  The 'chilling effect' will be enough to deter certain criticism.

Rutland Council meets this evening to discuss the legal advice it has received.  Anyone with an interest in free expression and libel reform should follow what now happens.  For if the majority of councillors vote for the council to sue for libel, then other councils will undoubtedly be tempted to follow the lead of Rutland, and it could be as if the Bognor case had never been buggered by their Lordships at all.


David Allen Green is legal correspondent of the New Statesman

Bognor - whose case was buggered by the House of Lords in 1993. Photo: Getty

David Allen Green is legal correspondent of the New Statesman and author of the Jack of Kent blog.

His legal journalism has included popularising the Simon Singh libel case and discrediting the Julian Assange myths about his extradition case.  His uncovering of the Nightjack email hack by the Times was described as "masterly analysis" by Lord Justice Leveson.

David is also a solicitor and was successful in the "Twitterjoketrial" appeal at the High Court.

(Nothing on this blog constitutes legal advice.)

Photo: Getty Images/AFP
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Is Yvette Cooper surging?

The bookmakers and Westminster are in a flurry. Is Yvette Cooper going to win after all? I'm not convinced. 

Is Yvette Cooper surging? The bookmakers have cut her odds, making her the second favourite after Jeremy Corbyn, and Westminster – and Labour more generally – is abuzz with chatter that it will be her, not Corbyn, who becomes leader on September 12. Are they right? A couple of thoughts:

I wouldn’t trust the bookmakers’ odds as far as I could throw them

When Jeremy Corbyn first entered the race his odds were at 100 to 1. When he secured the endorsement of Unite, Britain’s trade union, his odds were tied with Liz Kendall, who nobody – not even her closest allies – now believes will win the Labour leadership. When I first tipped the Islington North MP for the top job, his odds were still at 3 to 1.

Remember bookmakers aren’t trying to predict the future, they’re trying to turn a profit. (As are experienced betters – when Cooper’s odds were long, it was good sense to chuck some money on there, just to secure a win-win scenario. I wouldn’t be surprised if Burnham’s odds improve a bit as some people hedge for a surprise win for the shadow health secretary, too.)

I still don’t think that there is a plausible path to victory for Yvette Cooper

There is a lively debate playing out – much of it in on The Staggers – about which one of Cooper or Burnham is best-placed to stop Corbyn. Team Cooper say that their data shows that their candidate is the one to stop Corbyn. Team Burnham, unsurprisingly, say the reverse. But Team Kendall, the mayoral campaigns, and the Corbyn team also believe that it is Burnham, not Cooper, who can stop Corbyn.

They think that the shadow health secretary is a “bad bank”: full of second preferences for Corbyn. One senior Blairite, who loathes Burnham with a passion, told me that “only Andy can stop Corbyn, it’s as simple as that”.

I haven’t seen a complete breakdown of every CLP nomination – but I have seen around 40, and they support that argument. Luke Akehurst, a cheerleader for Cooper, published figures that support the “bad bank” theory as well.   Both YouGov polls show a larger pool of Corbyn second preferences among Burnham’s votes than Cooper’s.

But it doesn’t matter, because Andy Burnham can’t make the final round anyway

The “bad bank” row, while souring relations between Burnhamettes and Cooperinos even further, is interesting but academic.  Either Jeremy Corbyn will win outright or he will face Cooper in the final round. If Liz Kendall is eliminated, her second preferences will go to Cooper by an overwhelming margin.

Yes, large numbers of Kendall-supporting MPs are throwing their weight behind Burnham. But Kendall’s supporters are overwhelmingly giving their second preferences to Cooper regardless. My estimate, from both looking at CLP nominations and speaking to party members, is that around 80 to 90 per cent of Kendall’s second preferences will go to Cooper. Burnham’s gaffes – his “when it’s time” remark about Labour having a woman leader, that he appears to have a clapometer instead of a moral compass – have discredited him in him the eyes of many. While Burnham has shrunk, Cooper has grown. And for others, who can’t distinguish between Burnham and Cooper, they’d prefer to have “a crap woman rather than another crap man” in the words of one.

This holds even for Kendall backers who believe that Burnham is a bad bank. A repeated refrain from her supporters is that they simply couldn’t bring themselves to give Burnham their 2nd preference over Cooper. One senior insider, who has been telling his friends that they have to opt for Burnham over Cooper, told me that “faced with my own paper, I can’t vote for that man”.

Interventions from past leaders fall on deaf ears

A lot has happened to change the Labour party in recent years, but one often neglected aspect is this: the Labour right has lost two elections on the bounce. Yes, Ed Miliband may have rejected most of New Labour’s legacy and approach, but he was still a protégé of Gordon Brown and included figures like Rachel Reeves, Ed Balls and Jim Murphy in his shadow cabinet.  Yvette Cooper and Andy Burnham were senior figures during both defeats. And the same MPs who are now warning that Corbyn will doom the Labour Party to defeat were, just months ago, saying that Miliband was destined for Downing Street and only five years ago were saying that Gordon Brown was going to stay there.

Labour members don’t trust the press

A sizeable number of Labour party activists believe that the media is against them and will always have it in for them. They are not listening to articles about Jeremy Corbyn’s past associations or reading analyses of why Labour lost. Those big, gamechanging moments in the last month? Didn’t change anything.

100,000 people didn’t join the Labour party on deadline day to vote against Jeremy Corbyn

On the last day of registration, so many people tried to register to vote in the Labour leadership election that they broke the website. They weren’t doing so on the off-chance that the day after, Yvette Cooper would deliver the speech of her life. Yes, some of those sign-ups were duplicates, and 3,000 of them have been “purged”.  That still leaves an overwhelmingly large number of sign-ups who are going to go for Corbyn.

It doesn’t look as if anyone is turning off Corbyn

Yes, Sky News’ self-selecting poll is not representative of anything other than enthusiasm. But, equally, if Yvette Cooper is really going to beat Jeremy Corbyn, surely, surely, she wouldn’t be in third place behind Liz Kendall according to Sky’s post-debate poll. Surely she wouldn’t have been the winner according to just 6.1 per cent of viewers against Corbyn’s 80.7 per cent. 

Stephen Bush is editor of the Staggers, the New Statesman’s political blog.