-- Council inquiries must be fair. Terms of reference must be clear and the inquiry must stick to them. Conclusions reached by the inquiry must be justified by the evidence and findings of fact. Inquiries should not act as courts,
-- Publication, in some form, of the report is desirable. But publicity must be balanced by respect for privacy and confidentiality. There is a need to protect the identities of affected children.
Legal difficulties arise from council insurance policies which forbid 'admissions of liability' or 'waiver of rights' without the insurer's consent.
An admission of liability can happen during an inquiry, or on publication of the report. Accepting the report may be an admission of liability.
The waiver of rights problem arises because councils have a right of confidence in certain documents, such as notes on clients.
Finally, the uncertain scope of the defence of 'qualified privilege' in defamation may promote an over-cautious approach to publication.
The Law Commission proposes:
-- An agreement between insurers and councils, to clarify when the insurance contract would not become void
-- A code of practice for the fair conduct of inquiries
-- Reform of the law of defamation, and
-- A new form of inquiry.
Work has already been done on some of these proposals. The Local Government Association and the Association of British Insurers produced guidance in 1999. Further, the association published a Response to the Waterhouse report.
-- A code of practice is under discussion by the Society of Local Authority Chief Executives.
-- It is not clear when a council can claim the 'qualified privilege' defence, but the commission suggests it should be available where councils publish an inquiry report, as long as the inquiry and the report were fair.
-- The commission asks whether councils need a new statutory power
to establish more formal inquiries with powers to summon witnesses, require the production of documents and take evidence on oath.
The Law Commission wants to hear from those interested by 31 July 2002.