Should councils be using public money for libel action?

This article was originally published on the Guardian Local Government Network

In early February, Carmarthenshire county council confirmed that its chief executive Mark James will sue local blogger Jacqui Thompson for libel. The decision was made by the council’s executive board, and indemnifies James from the costs associated with the legal action.

The same local authority that is switching off 5,000 street lights as a result of cuts to its central government grant is pursuing a libel action that is likely to cost a six, maybe even seven, figure sum. The case is symptomatic of a wider trend where local authorities are becoming increasingly intolerant of local bloggers and using their legal, press and even security teams to hit out at vocal critics.

The Carmarthenshire dispute is long-running. It began with a libel action between Kerry and Jacqui Thompson from Llanwrda and the local authority’s director of planning Eifion Bowen, after the couple were sued for circulating defamatory letters, though they were never published in the wider media. The Thompsons apologised to Bowen at a hearing in October 2007, when they were given 12 months to pay legal costs totalling £7,000.

In 2008, the county council controversially changed its constitution so that public money could be used in future libel actions; an FOI request revealed its total legal costs from external organisations (solicitors and counsel) shot up from £364,369 to £711,832.

The legal authority for using public money for libel actions is questionable. The Derbyshire county council v Times Newspapers Ltd judgment of 1993 specifically rules out local authorities from suing for libel. As Lord Keith said in the judgment: “It is of the highest public importance that a democratically elected governmental body, or indeed any governmental body, should be open to uninhibited public criticism”.

This ruling was derived in part from earlier case law, which asserts the fundamental importance in a democracy of citizens being able to express their views — even offensive or distressing views — about their government, at national or local level.

While elected members and officers can use local authority funds to defend themselves if sued for libel in the course of their duties under the 2004 Local Authorities (Indemnities for Members and Officers) parliamentary order, it specifically does not allow members to bring actions as claimants. And though Derbyshire specifically rules out local authorities and elected members suing for libel, it is less clear on councils funding libel actions brought by individual officers.

Wesley O’Brien, a solicitor at Bevan Brittan, pointed out in Local Government Lawyer magazine that local authorities can fund a claim brought by an individual officer and assist them if it can justify this expenditure. He said: “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.”

This isn’t the only case where taxpayer-funded local authorities are using their resources to take on vocal critics.

South Tyneside council, while making £35m worth of cuts in its 2010-11 budget, has admitted to Index on Censorship that it has used in excess of £75,000 worth of public money to launch a legal action by the council’s leader Iain Malcolm, fellow Labour councillor Ann Walsh and independent David Potts, alongside borough regeneration boss Rick O’Farrell.

Originally, South Tyneside told us that total case costs would not rise about £75,000, but the council has since admitted costs have rocketed into six figures. “The legal costs of this case have passed the £75,000 as a result of additional costs incurred to defend an ‘anti-Slapp’ motion … our American lawyers have advised that these costs total $64,370 and they have submitted a claim for this amount to the court in California. We are advised that the claim will be considered by the court at a hearing in February 2012,” it explained.

South Tyneside’s constitution requires cabinet sign-off for items over £75,000 – which of course creates a direct conflict of interest as Malcolm is a claimant in the case. However, the press office declares cabinet sign-off is not required.

As the case is being pursued in the Californian courts, it seems that the Derbyshire principle does not apply. But the council would find it hard to argue in the English courts that funding a case brought by an elected member did not breach either the Derbyshire principle, or the 2004 parliamentary order, leading to serious questions as to why the legal action has been taken.

These troubling recent cases, demonstrate the need to include a prohibition on all public bodies from suing for libel, as recommended by the Libel Reform Campaign, a coalition of Index on Censorship withEnglish Pen and Sense About Science. The government is currently considering including the draft defamation bill in the next Queen’s speech, with thousands across the country writing to MPs to urge them to do so. If it does, ensuring that the resources of public bodies cannot be brought to bear against vocal opposition should be a serious priority.

Local authorities that open up access to information and learn from their critics will in the long-run build trust with their citizens. Councils that use public money to silence local voters are on a hiding to nothing — thanks to the Freedom of Information Act, we know what they’re spending, and how their decisions are being made. The old control impulse is strong, but it’s hard to justify to taxpayers in South Tyneside that their money is being thrown at lawyers in a Californian court so one councillor can sue another.