Foreign And Commonwealth Office v Warsama & Anor

A report laid before the House of Commons following a Motion for an Unopposed Return constitutes proceedings in Parliament where its provision serves Parliament’s collective function of obtaining information and holding the executive to account. Its contents therefore receive the absolute protection of article 9 of the Bill of Rights 1689.

The privilege does not cover the establishment or conduct of the inquiry which produced the report. It nevertheless prevents any party from relying upon the report in litigation to support, rebut or obtain different conclusions. A damages claim based on defective inquiry procedure must be independently and properly pleaded and cannot recover lost earnings merely through a lost chance of a more favourable outcome. A government-appointed, publicly funded inquiry investigating matters of public concern performs functions of a public nature and is a public authority under the Human Rights Act 1998.

The Foreign and Commonwealth Office appointed Sasha Wass QC and a multidisciplinary panel to conduct a non-statutory inquiry into allegations concerning child safeguarding and official misconduct on St Helena. Its report rejected the principal allegations but criticised two social workers who had acted as whistle-blowers. The report was published by the House of Commons following a Motion for an Unopposed Return.

The social workers claimed damages under the Human Rights Act 1998, alleging damage to their private and professional lives and procedural unfairness during the inquiry. Master McCloud held in [2018] EWHC 1461 (QB), supplemented by [2018] EWHC 3393 (QB), that the report’s contents were protected by parliamentary privilege, but that claims concerning the preceding process could continue. She also held that the inquiry panel was a public authority.

The respondents appealed against the refusal to strike out the remaining claims and the finding concerning costs. The claimants cross-appealed on parliamentary privilege. The central issues concerned the status and scope of the privilege, whether any pleaded claim survived, and the panel’s status under section 6 of the 1998 Act.

1. Appeal allowed and cross-appeal dismissed. A Motion for an Unopposed Return and the consequent laying of the requested report are proceedings in Parliament under article 9 of the Bill of Rights 1689. The House collectively calls for official information so that members may scrutinise matters of public concern and hold the executive to account. That is part of Parliament’s essential deliberative business even though the motion is unopposed, no debate occurs and the report originates outside Parliament. The report therefore enjoyed parliamentary privilege and the protection of the Parliamentary Papers Act 1840 (paras [60]–[70]).

2. The protection was compatible with Convention rights. It pursued the legitimate aim of enabling independent investigators to report frankly on matters of public concern without ensuing litigation frustrating publication or deterring qualified investigators. Parliamentary control over the papers accepted and the possibility of appropriate redaction made the protection proportionate (paras [68]–[70]).

3. Privilege did not extend to the decision to establish the inquiry or to the panel’s conduct and procedural decisions before publication. Those matters could in principle have been challenged promptly by judicial review. The absolute privilege attaching to the report itself nevertheless prevented either party from relying upon its contents to support or rebut a damages claim (paras [71]–[76]).

4. The pleaded claims did not disclose an independent procedural claim. Their alleged loss arose from the report’s adverse conclusions and publication. A counterfactual case that a fairer process might have produced different conclusions would inevitably question the privileged conclusions. Nor had the claimants pleaded separate loss caused merely by the process or the representations and causal chain required for such a claim (paras [78]–[91]).

5. Damages under section 8 of the Human Rights Act 1998 depend upon facts established under ordinary domestic standards. The claimant must prove loss on the balance of probabilities. A claim for lost earnings based only upon the chance of a more favourable inquiry outcome was unavailable (paras [94]–[100]).

6. The panel was a public authority under section 6. It investigated serious allegations concerning public servants on behalf of the Government, performed a core governmental function in the public interest, received public funding and support, and was expected to publish its findings. The absence of statutory powers and the chair’s professional status did not make the function private (paras [101]–[111]).

7. The claims were struck out. The master’s costs order consequently fell away (paras [112]–[113]).

1. Court of Appeal (Civil Division): In [2020] EWCA Civ 142, allowed the appeal by the Foreign and Commonwealth Office and Ms Wass, dismissed the claimants’ cross-appeal and struck out the claims.
2. High Court, Queen’s Bench Division: In [2018] EWHC 1461 (QB), Master McCloud held that the report’s contents were protected by parliamentary privilege, but that claims concerning the establishment and conduct of the inquiry could continue. She also held that the panel was a public authority under section 6 of the Human Rights Act 1998.
3. High Court, Queen’s Bench Division: In the supplementary decision [2018] EWHC 3393 (QB), Master McCloud determined which pleaded matters survived and treated the claimants as the successful parties for costs.