Martin Warsama (Claimant in HQ16X04249) v The Foreign and Commonwealth Office

Parliamentary privilege protects proceedings in Parliament, but its scope is determined by the court according to law and with Convention rights in view. A Motion for an Unopposed Return is a proceeding in Parliament and protects the content of the resulting report from claims that impeach or question its accuracy or merits. It does not immunise the Executive’s prior decision to establish a non-statutory inquiry, or the inquiry’s procedure and conduct outside Parliament. Those matters may support an Article 8 claim if they caused sufficiently serious harm to reputation. A private barrister conducting a government-established inquiry may be a public authority under Human Rights Act 1998 s.6 where the inquiry is governmental in substance, publicly funded and undertaken to discharge State responsibilities.

The claimants, social workers criticised in the Wass Report concerning alleged child abuse on St Helena and Ascension Island, brought Human Rights Act 1998 claims for damage to their private and professional lives against the Foreign and Commonwealth Office, the inquiry and its chair, Ms Sasha Wass QC.

The Report was produced following a non-statutory inquiry and was published after the House of Commons approved a Motion for an Unopposed Return. The defendants relied on parliamentary privilege, the Parliamentary Papers Act 1840, and the contention that Ms Wass was not a public authority. The central issues were whether the Report and the inquiry process were protected, and whether the chair exercised public functions.

1. Privilege issue. The court must determine the legal scope of parliamentary privilege; an assertion by Parliament or the Speaker is not conclusive. It must nevertheless pay careful regard to authoritative parliamentary views. The court applied the core-business approach in R v Chaytor [2010] UKSC 52, read with the Convention principles in Cordova v Italy (No. 1) and Appn. No. 40877/98.
2. The Unopposed Return is a parliamentary procedure taking place in the House during a sitting. Although it is not legislative and involves no debate, it is an established written substitute for speaking and therefore falls within freedom of speech and proceedings in Parliament. Article IX of the Bill of Rights 1689 consequently barred claims challenging the accuracy, truth or merits of the Report.
3. Privilege did not extend to the Executive’s decision to establish the non-statutory inquiry, or to the inquiry’s conduct, procedure and drafting outside Parliament. Those matters could be considered by the court, provided the claim did not amount to a collateral challenge to the Report’s content. Publication on the FCO website was protected by the Parliamentary Papers Act 1840.
4. The court accepted that professional reputation may engage Article 8. It declined to strike out claims concerning harm caused by the inquiry process itself, because evidence might show serious reputational harm independent of the Report’s protected content.
5. Convention Status Issue. Applying the fact-sensitive, multi-factor approach in R (Weaver) v London and Quadrant Housing Trust [2010] 1 WLR 363, and the authorities cited there, Ms Wass was exercising public functions. The inquiry was established and funded by government, concerned State responsibilities, was backed by a State-approved indemnity, and was intended to produce a public report. Her role was therefore governmental in substance, notwithstanding the inquiry’s non-statutory character and her private practice.
6. Ms Wass owed duties under s.6 of the Human Rights Act 1998. The limitation and procedural objections were fact-sensitive and were not suitable for summary determination. The claims were permitted to continue to the limited extent identified. Permission to appeal was granted to the claimants, the FCO and Ms Wass because of the constitutional significance and novelty of the issues.

First-instance decision. The court granted permission for the claimants to appeal on the privilege issue, and for the Foreign and Commonwealth Office to cross-appeal the conclusion that claims concerning the inquiry process were not barred. Ms Wass QC also received permission to appeal the public-authority ruling.