by Nicholas Dobson, Pinsent Masons, Leeds


Misfeasance in public office

Those keen to commit a misfeasance in public office will need to pay careful attention to the ingredients of this tort if they are to avoid disappointment. Because, unfortunately for potential private sector misfeasors, they are excluded from its scope.



This was clear from the decision of the Court of Appeal on 27 July 2007 in Stockwell and Ors v Society of Lloyd's [2007] EWCA Civ 930, which noted that the 'requirement that the subject of misfeasance in public office should be a governmental body springs from the very nature of the tort'. The case concerned an ultimately forlorn claim by Lloyd's names of misfeasance in public office on the part of Lloyd's.



Lady Justice Hale in Amoo-Gottfried v Legal Aid Board [2000] EWCA Civ 301 had indicated that the tort is directed at 'the exercise of power by a public official, not for the purpose for which it was given, but for some ulterior or impermissible purpose, knowing or being reckless as to whether it will damage the plaintiff'. And, as the leading decision of the House of Lords in Three Rivers District Council v The Bank of England (No3) [2003] 2 AC 1 indicated, the tort has (among others) the following elements:

l The defendant is a public officer and exercises the power himself or it is exercised by someone for whom he is vicariously liable;

l The defendant (or someone for whom he is vicariously liable) either (i) acts out of targeted malice or (ii) acts knowing that he has no power to do the act complained of and that the act will probably injure the claimant. The second alternative involves bad faith, that is the absence of an honest belief in the lawfulness of the actions or a reckless indifference to their lawfulness and consequences;

l Damage not too remote to be recoverable is caused by the wrongful act and the claimant has sufficient interest to give standing to sue.



But what exactly is a public officer for these purposes? The Court of Appeal in Lloyd's tried to get to grips with this, noting that general authority on the point was not easy to find. In Three Rivers, Lord Hobhouse had indicated that the tort concerned 'the acts of those vested with governmental authority and the exercise of executive powers' and Lord Steyn that 'the rationale of the tort is that in a legal system based on the rule of law, executive or administrative power may only be exercised for the public good'.



Governmental power, according to Lord Justice Buxton in Lloyd's, is 'the power to interfere with the way in which other citizens wish to conduct their affairs'. And that 'cannot possibly be said of a commercial operation like Lloyd's, concerned with the internal commercial interests of its own members'. For the 'structure and operation of Lloyd's... is an exercise in commerce, not an exercise in government'.



The Lloyd's case is useful, not only by way of a reminder of the key components of public office misfeasance, but also by getting further to grips with the nature of public authority. And it's also a valuable tutorial for the trainee misfeasor.



Unitary challenge fails in Administrative Court

On 10 October 2007, Mr Justice Underhill rejected claims that the Secretary of State had acted unlawfully in the steps she had taken concerning unitary local government proposals in advance of enabling legislation (see Shrewsbury and Atcham Borough Council (1) and Congleton Borough Council (2) v Secretary of State for Communities and Local Government [2007] EWCH 2279). Those actions were also not unlawfully inconsistent with the current statutory regime in the Local Government Act 1992.



The court found that ministers had power to take governmental steps without statutory authority or any specific prerogative power since at common law the Crown had the capacities of a natural person provided it did not interfere with the rights and liberties of the subject, that the exercise of power is reviewable on ordinary public law grounds, and that it does not operate inconsistently with an existing statute. In particular, ministers could take preparatory steps before substantive enabling legislation.



So, bad news for the claimant authorities that are facing abolition. But this may not be the end of the story since leave to appeal was given. Therefore, while authorities may not have any 'right to life' under the Human Rights Act, they may live to fight another day.



Truth and error

Former US Vice-President Al Gore's Oscar-winning film, 'An Inconvenient Truth' (satirised in the 2007 'Simpsons Movie' as 'An Irritating Truth'), has undoubtedly had a powerful impact. However, it was not without error, and Mr Justice Burton in the Administrative Court identified nine of these when the matter came before him on 10 October 2007 in R (Dimmock) v Secretary of State for Education and Skills [2007] EWHC 2288 (Admin).



However, this 'constructive litigation' went bravely in to rescue the Secretary of State from breaching sections 406 and 407 of the Education Act 1996 (dealing respectively with political indoctrination and the duty to secure balanced treatment of political issues in schools). This followed distribution of the film to every UK state secondary school with a cross-reference to an educational website containing a guidance note but without any suitable directly accompanying guidance.



The claimant was a parent who objected to the distribution and sought a declaration that the decision by the Secretary of State to do so was unlawful. Section 406 requires the local education authority, governing body and head teachers to forbid the promotion of partisan political views in the teaching of any subject in the school. Section 407 requires those persons to take such steps as are reasonably practicable to secure that, where political issues are brought to the attention of pupils while in school or taking part in school extra-curricular activities, they are offered a balanced presentation of opposing views.



Justice Burton noted that 'An Inconvenient Truth' was a political film, albeit not party-political. He considered that 'partisan' meant 'one-sided' and accepted the submission that factors relevant to determining partisan promotion of views were (among others):

l Superficial treatment of the subject matter with insufficient explanation or justification and without any indication that the factual or philosophical premises may be the subject of legitimate controversy;

l Misleading use of scientific data, misrepresentations and half truths and one-sidedness;

l Deployment of material so as to prevent pupils meaningfully testing its veracity and forming an independent understanding as to its reliability;

l Exaltation of protagonists and their motives, and the demonisation of opponents and their motives; and

l Imposition of a moral overlay requiring the viewer to adopt a particular view and course of action to do 'right' rather than 'wrong'.



While the court considered that section 406 could not possibly be considered to have been breached whenever a partisan political film is shown to pupils in school time (for 'promotion' cannot mean nothing more than 'presentation'), the statute does forbid 'political indoctrination'.



Justice Burton said: 'If a teacher uses the platform of a classroom to promote partisan political views in the teaching of any subject, then that would offend against the statute. If, on the other hand, a teacher, in the course of a school day and as part of the syllabus, presents to his pupils, no doubt with the appropriate setting and with proper tuition and debate, a film or document which itself promotes in a partisan way some political view, that cannot possibly in my judgment be the mischief against which the statute was intended to protect pupils.'



Consequently, mere distribution, accompanied by appropriate guidance, is not per se or irremediably a promotion of partisan political views. And per section 407, a balanced (that is, fair and dispassionate) presentation of opposing views is required. However, the court did accept that there were nine 'errors' that 'set out in the context of a political film, informed the argument on sections 406 and 407'. These included the fact that the disappearance of snow on Mount Kilimanjaro cannot be scientifically established as mainly attributable to human-induced climate change and also the absence of scientific evidence as to the death of polar bears caused by global warming.



As to the guidance note, to meet statutory requirements it was not sufficient (as in the instant case) for a cross-reference to this on an educational website. And guidance should identify any serious apparent errors not only so as to encourage informed discussion, but also so that it should not appear that the Secretary of State and consequently, through the process, schools, are promoting partisan views by giving their imprimatur to it. The guidance note in question had flaws, including no or no adequate discussion in relation to the nine identified 'errors'. However, the Secretary of State agreed to amend the guidance so as to put it into a context in which a balanced presentation of opposing views can and will be offered.



In the circumstances, Justice Burton acknowledged that (among other things) because insufficient attempts had been made to counter the more one-sided views of Mr Gore and no adequate warning had been given, there would have been a breach of sections 406 and 407 'but for the bringing of these proceedings and the conclusion that has now eventuated'. And 'the spirit and co-operation in which this hearing has been carried through is a tribute to constructive litigation'.



It is understandably easy for the best reasons to get carried away by a powerful artistic work on an important subject. However, as this case demonstrates, government (both central and local) has a particular responsibility to offer a proper education context in the material it distributes to schools.