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Earl Howe: My Lords, the main point that I wish emphasise in relation to the amendment was touched on by the noble Baroness, Lady Walmsley; namely, that a requirement to respond to the commissioner's recommendations would give the commissioner a great deal more standing and authority. We had the same kind of debate while discussing patients' forums during the passage on the Health and Social Care (Community Health and Standards) Bill two years ago. When a patients' forum sends a report to a hospital trust, the trust has to reply. The very existence of that duty invests the forum with a great deal more authority than it might otherwise have. As the noble Baroness, Lady Walmsley, said, its recommendations have to be taken seriously. There are further provisions in regulations in case the response received is not satisfactory. While the Minister may look at the amendment and say that it is bureaucratic, as she did
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last time, this is not actually an exercise in bureaucracy; it is an attempt to give the commissioner some added clout. That cannot be a misplaced aim.
Lord Lester of Herne Hill: My Lords, I shall speak to Amendment No. 47, which stands in my name. It is bizarre that it has been grouped with another amendment with which it has nothing whatever in common. I shall therefore speak about an entirely different matter. The good news is that if the Minister is able to respond at all positively to it in her reply, I shall not move the amendment and so the House will have to listen to me only once.
I raised the issue that is covered by the amendment on Report and received strong support from across the House. Amendment No. 47 would strike a fair balance in relation to the operation of three fundamental rights: first, the right of the public to receive information and opinions published by the Children's Commissioner; secondly, the right of the individual to a good reputation protected against publications made in bad faith or with reckless disregard for the truth of the allegations; and thirdly, the individual's right of access to the courts to vindicate his reputation using defamation law where reports have been made that are unfair or irresponsible.
That balance and sense of proportion are required under the European Convention on Human Rights, as the Strasbourg court made clear in the Fayed case in which I acted as counsel. A fair balance is required also under English law. Thanks to the Human Rights Act 1998, the convention rights involved are part of our law. The questions before the House are twofold. First, what in principle is the nature and scope of the privilege to be accorded to the commissioner? Secondly, does the protection given in Schedule 1 (10) sweep too broadly?
Paragraph 10 of Schedule 1 states:
(a) any statement made by the Children's Commissioner in a report published under this Part has absolute privilege; and
(b) any other statement made by the Children's Commissioner or a member of his staff for the purposes of this Part has qualified privilege".
Sub-paragraph (b) is not controversial, though I doubt whether it is necessary. It is well established at common law that, on grounds of public policy, defamation law gives protection to a person, such as the commissioner or his staff, acting in good faith and without an improper motive, who makes an untrue and defamatory statement about an individual in performing his public functions. At common law, the commissioner would have the defence of qualified privilege in communicating to the public information and opinions of legitimate public interest and concern. The defence is available even though the publication contains defamatory false statements, provided that the commissioner has not acted for an improper purpose, or with reckless disregard for the truth, or unfairly.
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Paragraph (b) makes it clear that this defence of qualified privilege applies to statements by the commissioner or her staff, and that is entirely unobjectionable. But, as it stands, paragraph (a) gives absolute privilege to any statement made by the commissioner in any report under Part 1. According to well established doctrine, absolute privilege applies and should apply only to occasions and reports of high public importance. Where absolute privilege applies, it operates as a complete immunity from libel proceedings, even if the commissioner was actuated by express malice. It completely denies the victim of a defamatory statement the right to vindicate his or her reputation through the legal process.
Because of the high public interest in the due administration of justice, absolute privilege applies, for example, to protect judges, advocates, jury members, witnesses, parties to legal proceedings and reports of court proceedings. It also applies to parliamentary reports and papers, to affairs of state and to some limited statutory instances, where public bodies or officers, such as the Civil Aviation Authority or the Financial Services Authority, perform quasi-judicial or law enforcement functions and are given absolute privilege. The Parliamentary Commissioner for Administration has absolute privilege for her reports to Parliament and other matters relating to her investigations, as part of the protection for parliamentary proceedings and reports. My Amendment No. 47 reflects that position by applying absolute privilege to the commissioner's annual reports to Parliament under Clause 3.
However, paragraph (b) as it stands sweeps much more broadly. It confers an absolute immunity from defamation proceedings for any report made by the commissioner under any provision in Part 1. That includes a report under Clause 2(2)(d), a report under Clause 4(5)(a) or a report under Clause 5(3).
I submit that there is no objective and reasonable justification for such a far-reaching immunity. No such protection is given to the Equal Opportunities Commission, the Commission for Racial Equality or the Disability Rights Commission, even though they have law enforcement powers that are not vested in the Children's Commissioner. Why should the commissioner be in this absolutely privileged position to harm personal reputations for improper reasons or recklessly with no possibility of legal redress for the victim? The commissioner's reports made under these provisions do not concern parliamentary proceedings, affairs of state, judicial or quasi-judicial functions or law enforcement functions. What we have here are reports on matters relating to the rights, views and interests of children (that is, subsection (2)(d)); or reports of the commissioner's recommendations following an inquiry into a case raising issues of public policy relevant to other children (that is, Clause 4(5)); or a report of an inquiry into an individual case (that is, Clause 5(3)).
By conferring an absolute immunity against defamation proceedings for any of those reports, Parliament would be removing an important incentive
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for the commissioner to seek to ensure that her or his reports under Part 1 are fair and accurate and not made recklessly or irresponsibly.
The only reason for including such a broad and absolute immunity is not one of principle; it involves matching the immunities conferred upon the Scottish, Northern Irish and Welsh Commissioners. Section 25 of the Commissioner for Children and Young People (Northern Ireland) Order 2003 extends absolute privilege to,
"publication by the Commissioner or any matter which the Commissioner is required or authorised to publish",
under the order. Section 76(7) of the Care Standards Act 2000 provides that the,
Section 15(1) of the Commissioner for Children and Young People (Scotland) Act 2003 confers absolute privilege not only on the commissioner but also on any of the commissioner's staff: first, in conducting an investigation under the Act; secondly, in communicating with any person for the purposes of such an investigation; or, thirdly, in a report published under the Scottish Act.
When those immunities were conferred for the three devolved commissioners, no one apparently considered whether they were compatible with the European convention or the Human Rights Act. There was an attempt to check but the main issue was not thought about; that appears to be the position. In my view, it is very strongly arguable that those immunities are not necessary and proportionate in the context of Scotland, Wales or Northern Ireland, and would not pass muster in the event of a legal challenge under the Human Rights Act or the convention.
That fact that unnecessary and disproportionate absolute immunities have been given to the Scottish, Welsh and Northern Irish commissioners does not make the legislation compatible, or justify our following this model in the present Bill. I look forward to the Minister's explanation as to the justification for such a sweepingly broad absolute immunity.
The Joint Committee on Human Rights, of which I am a member, is yet to report on the Bill. It will do so when it leaves this House, and its report on this issue—I cannot say what the report will contain—may be influential one way or the other. As I said, speaking entirely for myself, I would be surprised if the absolute immunities would pass muster if challenged in the courts. Qualified privilege is surely sufficient, except for parliamentary proceedings and, as I have said, it will provide an important incentive for fair and responsible reporting by the commissioner. In other words, there is a lack of proportionality in this regard and the absolute immunity is not carefully tailored to the commissioners' wholly legitimate needs in performing his or her important public functions.
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