I am emailing you to set out my legal advice on the question of publishing AK’s preliminary draft report, as such action is called for in a Notice of Motion to be considered at tonight’s Council meeting. I have also had the opportunity to receive from Anna Klonowski (‘AK’) an update as to her progression of the Right to Reply (‘R2R’) process. This is set out in bold italics towards the end of this email.
Only a very small number of people have received a preliminary draft of AK’s report. However, all persons receiving it did so on the strict understanding that that was a preliminary draft; that it was subject to strict confidentiality; and that no one could disclose the contents of the report until the R2R process is complete. All recipients of the draft report (including me) signed undertakings to this effect.
The R2R process is in place to ensure that, before AK’s report is finalised, those criticised in the preliminary draft are given a fair opportunity to respond and to have their representations fairly reflected in the final version. This principle of fairness is a fundamental tenet of Natural Justice. Both AK, as the author of the report, and the Council, as the commissioning public body, have a duty to all people impacted by the report to ensure that it is as fair and accurate as can reasonably be achieved. Publication of the preliminary draft report would subvert the R2R process and is likely to deny Natural Justice to the people impacted by the report.
You will see from AK’s comments below that some of the R2R submissions will require her to change some of the facts and, possibly, her conclusions as set out in the preliminary draft report; or to add further information to ‘more accurately reflect the balance of opinions amongst the parties’. As a result, the preliminary draft report, today, cannot be described as a comprehensive, wholly accurate, up-to-date, or fully balanced statement of AK’s views.
It has been suggested to me that the continuing delay in finalising the report might seriously prejudice one or more third parties. I have discussed this suggestion of possible prejudice, with the Acting Director of Adult Social Services (who has also read the draft report). The Acting Director of Adult Social Services has informed me that he has no grounds for believing that any third party is being seriously prejudiced as a result of the AKA Report being delayed by the R2R process.
Given the extent to which a number of persons criticised in the preliminary draft report have engaged with the R2R process, the publication of a now out-of-date preliminary draft of AK’s report would be highly likely to make those persons (in particular) much more inclined to take legal action against the Council. In my view, to publish the draft report would be unreasonable and would contravene the legitimate expectations of those invited to participate in the R2R process: namely that the process would be conducted in good faith to a conclusion, prior to any publication.
In my view, the publication of a now out-of-date preliminary draft of AK’s report would be highly likely to provoke immediate legal action to restrain the Council from publishing (i.e. an injunction).
Moreover, given that the preliminary draft report cannot be described today as a comprehensive, wholly accurate, up-to-date, or fully balanced statement of AK’s views, it is much more likely, if the preliminary draft report is published, that the Council will face legal claims by those criticised in the draft report (for damages for defamation).
Having said all this, I fully recognise that there is obvious Member and public interest in bringing this matter to a conclusion as soon as possible: but that should not be at the cost of subverting the entirely proper R2R process.
Finally, I need to make clear that, if Council were to ‘call on’ the Leader to publish the preliminary draft report, the decision whether to publish or not would still be an executive decision for the Leader. Council cannot ‘instruct’ the Leader to publish, it may merely ‘request’ (or ‘call for’) such action. If, notwithstanding my advice, a majority of Members at Council were to ‘call on’ the Leader to publish the preliminary draft report, my unequivocal advice would remain that it should not be published, for the reasons stated above.
Set out below is AK’s update as to progress with the R2R process. In my opinion this clearly demonstrates that the R2R process is being conducted robustly and in a timely manner.
I can confirm that the Right to Reply process has progressed well and has been worthwhile in testing the conclusions I have reached and seeing whether those criticised can raise any evidence to make me re-consider any of my conclusions. I have ensured that people have had sufficient time to respond and have given people more time when necessary without allowing them to abuse the process by delaying it without good cause.
As a result of the process, one additional family has come forward and asked for their views to be taken into account and, representatives of some of the organisations subject to the R2R have been interviewed. The notes of some of these meetings have/are being considered with one individual undergoing an operation and the family concerned specifically requesting more time. I have therefore had to allow them until 14th December 2012 for the return of their meeting notes.
In addition, it should be noted that a significant amount of additional information was supplied by one of the R2R subjects and, unexpectedly an individual associated with one of the R2R subjects has come forward. Having sought legal advice, I am arranging a meeting and to take a statement.
I have already identified that some of the R2R submissions will in some regards require me to change some of the facts and possibly conclusions contained within my preliminary draft report or, add further information which will more accurately reflect the balance of opinions amongst the parties. There are also some points that have been raised by the R2R submissions that need to be put to either Mr Morton or other people/organisations which are the subject of the review. After seeking legal advice, there are instances where before forwarding the documents and/or drafting further questions based upon those R2R submissions I have asked certain persons/organisations to consider whether they should seek independent legal advice before authorising me to rely on those comments as they could give rise to a claim of defamation if the statements are viewed as not being true against the individual and/or organisation submitting the R2R response.
As the Council and I have agreed previously, the Right to Reply process is in place to ensure that those I have criticised are given a fair opportunity to respond before the report is finalised. It does not mean that interested parties are able to see the draft report. If draft conclusions are published to interested parties then this would undermine the whole concept of the Right to Reply process which ensures that due process is followed before the report is finalised.
I have established in the reports I have already submitted that I will make strong criticism and comments where I feel it is appropriate. I should emphasise that the Right to Reply process is in no way intended as an opportunity to soften my report. It simply enables me to make robust conclusions after following due process. I will consider all the evidence put before me, including that evidence submitted by those criticised, and only if necessary will I alter my report where further evidence justifies such a change.
If any of the above is unclear, or if you believe that I have misunderstood any matters, please let me know as soon as possible.
This advice may be shared with others, if you so wish.
Director of Law, HR and Asset Management
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