My Lords, at the beginning of the Committee’s discussions on Tuesday, the noble Lord, Lord Browne of Ladyton, raised an issue in relation to legal advice which had been given to Rutland County Council. It suggested that the general powers given to local authorities in Section 1 of the Localism Act 2011 had overturned the bar on them suing in defamation, which was established by the House of Lords in Derbyshire County Council v Times Newspapers.
My officials have explored the issue with officials at the Department for Communities and Local Government, which is responsible for the 2011 Act. The Government are in no doubt that if a case were brought, the courts would still find that local authorities cannot bring action in defamation. The decision in Derbyshire was reached on public policy grounds, which we considered remain compelling. The House of Lords found that it would be contrary to the public interest for organs of government to be able to sue in defamation, and that it would be an undesirable fetter on freedom of speech. It must be borne in mind that Derbyshire was decided before the enactment of the Human Rights Act 1998. Consideration of Article 10 would only bolster the reasoning of the House of Lords in Derbyshire.
In any event, I can reassure the Committee that even if the issue was brought before the court and found to the contrary, the situation could be remedied by way of a statutory instrument under Section 5(3) of the Localism Act 2011. The power allows the Secretary of State to prevent local authorities using Section 1 powers to do anything specific in the order. In this case, an order could be made preventing any action being brought in defamation. I have already indicated in earlier debates our view that it is preferable for the courts to have the flexibility to continue to develop the Derbyshire principle, rather than to attempt to prescribe rigid boundaries in statute. That remains our view. In the unlikely event of any difficulty arising as a result of the provisions in the Localism Act, prompt action can be taken to address that without any need for primary legislation.
Clause 7 : Reports etc protected by privilege
Amendment 39