Thursday, January 10, 2013

Latest on Rutland County Council's threat to sue its own members

Last Friday I blogged about Rutland County Council's threat to sue three of its own members for defamation.

I had always understood that public bodies could not sue in this way, but according to a BBC News report I quoted in that post:
The defamation action would be possible thanks to the Localism Act 2011 which grants local authorities the power to act like an individual.
This still sounded odd to me, though I am no lawyer, and a couple of people tweeted me that evening with the same reaction.

In a post on the New Statesman site this afternoon David Allen Green, who is a lawyer, explained the issues at stake:
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.
He goes on to describe the legal advice the council has received as not only illiberal but seemingly misconceived and discusses his reasons for this judgement.

A meeting to decide whether the council should proceed with the threatened prosecution is taking place as I write. Follow Oakham UK on Twitter for updates.


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