The Foreign and Commonwealth Office v Mr Martin Warsama
| Jurisdiction | England & Wales |
| Judge | The Lord Burnett of Maldon,Lord Justice Coulson,Lady Justice Rose |
| Judgment Date | 11 February 2020 |
| Neutral Citation | [2020] EWCA Civ 142 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No. A2/2019/0240 |
| Date | 11 February 2020 |
and
and
[2020] EWCA Civ 142
THE RIGHT HONOURABLE The Lord Burnett of Maldon
LORD CHIEF JUSTICE OF ENGLAND AND WALES
THE RT HON Lord Justice Coulson
and
THE RT HON Lady Justice Rose DBE
Case No. A2/2019/0240
Case No. A2/2019/1967
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
MASTER VICTORIA McCLOUD
[2018] EWHC 1461 (QB) and [2018] EWHC 3393 (QB)
Royal Courts of Justice
Strand, London, WC2A 2LL
Neil Sheldon QC (instructed by the Government Legal Department) for the First Appellant
Alan Payne QC (instructed by the Government Legal Department) for the Second Appellant
Nicholas Bowen QC and David Lemer (instructed by Meaby & Co LLP) for the Respondents
Ms Saira Salimi (Counsel to the Rt. Hon the Speaker of the House of Commons) appeared by way of written submissions for the Speaker
Hearing dates: 27 and 28 November 2019
Approved Judgment
The Lord Burnett of Maldon, Lord Justice Coulson and
Introduction
This is the judgment of the court to which we have all contributed.
The principal issue in this appeal is whether the report of an inquiry ordered to be published by the House of Commons following a Motion for an Unopposed Return is protected by Parliamentary privilege. The second issue is whether the proceedings commenced by Mr Warsama and Ms Gannon (to whom we refer as the appellants) can survive a finding that the report in which they were criticised is protected by Parliamentary privilege or should be struck out. The third issue is whether the panel which conducted the inquiry is a ‘public authority’ for the purposes of section 6(3) of the Human Rights Act 1998 (“the HRA”).
In November 2014, the First Respondent (“the FCO”) appointed a leading criminal barrister specialising in child sex abuse cases, the Second Respondent Ms Sasha Wass QC, to chair a multidisciplinary panel to inquire into the truth of allegations that serious child sex abuse and corruption were taking place with impunity on the island of St Helena (“the Inquiry”). Other members of the panel included a serving Detective Superintendent with many years' experience of reviewing complex criminal cases, including the investigation of child abuse allegations on Pitcairn Island, and a former Head of Safeguarding at the Children's Society.
The Foreign Secretary, Philip Hammond, announced the appointment of Ms Wass to chair the Inquiry to the House of Commons and placed a copy of the terms of reference in the Library of both Houses. The Inquiry was non-statutory and so not governed by the Inquiries Act 2005 nor the Inquiry Rules 2006. The terms of reference for the Inquiry were broad and included:
i) an assessment of the role of the FCO and the Department for International Development (“DFID”) in responding to allegations made about child abuse;
ii) an appraisal of the response of the St Helena authorities to specific child safety incidents detailed in the allegations and whether further investigation, including criminal investigation, was required;
iii) a review of the relationship between St Helena's social services and its police service; and
iv) an assessment of the treatment of and support given to whistle-blowers who bring child safety concerns to the authorities' attention.
On 25 June 2015 the Parliamentary Under-Secretary of State for Foreign and Commonwealth Affairs told the House of Commons that he had laid a departmental minute proposing to provide an indemnity covering Ms Wass, the Inquiry Panel, its solicitor and staff members against any liability for the conduct of the Inquiry. The need to seek the approval of the House for the indemnity arose because the FCO recognised that the indemnity created a contingent liability in excess of £300,000 for which there was no statutory authority (Hansard 25 June 2015, vol 597).
The Inquiry took evidence from witnesses both in the United Kingdom and in St Helena. Those witnesses included the two claimants in these proceedings, Martin Warsama and Claire Gannon. They had been employed as social workers on St Helena between February 2013 and July 2014 in the case of Ms Gannon and between September 2013 and April 2014 in the case of Mr Warsama. They were the source, as whistle-blowers, of many of the most serious allegations that it was the Inquiry's task to investigate. In the course of the Inquiry, the Panel interviewed 145 witnesses and read over 2,677 documents including all police files dealing with sexual offences dating back to 2009. A detailed review of social services files relating to child welfare was also undertaken dating back to at least 2009.
When the Panel had completed its investigation, Ms Wass provided a copy of the report of the Panel to the FCO on 3 December 2015 (“the Report”). The Report concluded that the Inquiry had found no evidence that child abuse was either endemic or routine on St Helena. There was no evidence of corruption in the St Helena police force, the St Helena Government, the FCO or DFID. There was no evidence of a cover up. The Report contained criticism of Mr Warsama and Ms Gannon both professionally and personally. The Report described them as professionally incompetent and unable to fulfil the terms of their employment. Other people and organisations were also strongly criticised in the Report. Whilst exonerating the St Helena authorities of the child sex abuse allegations, the Report did find evidence of systemic failings by social services, particularly regarding the treatment of disabled adults. There had been serious failings in respect of vulnerable people on St Helena. The Panel described the treatment and neglect of one severely disabled person as “a matter of lasting shame to the St Helena Government”. The Panel concluded that St Helena suffered from bad management and a lack of strategic organisation. The ultimate responsibility for those failings lay with the Governor. In the past, the Report said, when the FCO or DFID was called upon by the Governor to deal with a problem, the “only available response from a distance of 4,000 miles has been to commission another report”. The Report made a series of recommendations including a better handover process from a retiring Governor to an incoming Governor, better induction for police recruits and proper training in safeguarding for all St Helenian Government employees likely to come into contact with children in the course of their work.
The FCO decided that the Report should be published and that it should be published by Parliament. The procedure used to bring the Report into the public domain was the “Motion for an Unopposed Return” procedure which we describe in more detail below. The Report was published by the House of Commons on 10 December 2015.
On 8 December 2016 the claimants each issued a claim against the FCO and Ms Wass. The Wass Inquiry was also originally named as a Defendant, but it is now accepted that the Inquiry is not a separate entity capable of being sued. Its members are collectively responsible for the Report. The claimants served Particulars of Claim in materially the same terms in April 2017. In their pleadings they allege that the Report is full of factual inaccuracies and that the criticisms of them personally and professionally are untrue. They allege that the criticisms were expressed in unnecessarily severe terms and did not need to be included in the Report. They also complain about serious irregularities that they say arose from the procedures adopted by the Inquiry during the evidence gathering stage and at the final stages of preparation of the Report. In particular, they assert that they were not given advance warning of the likely terms of the Report when it was in draft form and were not therefore given a proper opportunity to make representations on whether the criticisms of them should be included. Further, they had been assured that the response that they did provide to the complaints made against them would be included in the Report in full, but this had not happened. The claimants allege that the Report has damaged their reputations and had a serious effect on their private and professional lives including their ability to continue employment in their chosen profession. This has given rise to a breach of their right to a private life for the purposes of article 8 of the European Convention on Human Rights (“ECHR”). They rely on a number of authorities to establish that article 8 is engaged including most recently Axel Springer AG v Germany (App. No. 39954/08 judgment of 7 February 2012). They claim loss and damage under section 6 of the HRA. The damages claimed include past and future loss of earnings.
The FCO served its defence to both claims in June 2017. It denied the substance of the claims but also pleaded that the Report amounts to “proceedings in Parliament” for the purposes of article 9 of the Bill of Rights 1689. This means, according to the defence, that “pursuant to the fundamental principle of parliamentary privilege, this claim seeking to impeach the findings contained in the report and/or the procedure pursuant to which those findings were reached must fail.”
The FCO applied to strike out the claims on the basis of article 9. Ms Wass also applied to strike out the claims on a number of grounds including that she is not a public authority for the purposes of section 6 of the HRA. The strike out applications were heard together by Master McCloud. Prior to the hearing, the master gave...
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