A solicitor and a magistrate
Fiona Woolf has been presented (ie it is part of her curriculum vitae), as chair of the proposed child sex abuse inquiry, as a solicitor and a form of judge. She is a former President of the Law Society (of which both she and I are members); and she is a voluntary judge (ie a magistrate: I do not know over what period, or how often, she sat). Each capacity brings with it certain duties in terms of skill, conflicts of interests, and declaration of bias. (It is not for me to make assumptions as to any conflict or bias which may reside in Mrs Woolf: that is for her personally to state (see Inquiries Act 2005 s 9 below); and for the press and others – if they see fit – to speculate.)
As a magistrate, let us be clear, Mrs Woolf would not have been operating in a conventional judicial role. She was not expected to know any law. That is for a magistrate’s clerk (now a ‘legal adviser’) who advises magistrates on law. A magistrate, however, would be expected to understand and declare any interest or partiality in a case. For example, s/he could not sit on a case involving a neighbour or friend (Lord Bingham CJ gave this as a cardinal example in the well-known bias case of Locabail (UK) Ltd v Bayfield Properties Ltd & Anor  1 QB 451 http://www.bailii.org/ew/cases/EWCA/Civ/1999/3004.html ).
I want to concentrate on Mrs Woolf’s (and my) duties as a solicitor and her responsibilities as a form of judge. These, I would say, are but part – though a very important part – of her duties as a member of the panel. They are as important as, perhaps more so, that her duties as a solicitor.
The Solicitors Regulation Authority Code of Practice which governs the practice of solicitors requires us to act with ‘skill’ appropriate to their case for any particular client (Chapter 1: O(1.4)), and to avoid conflicts of interest (Chapter 3).
The skill or ‘expertise’ point revives in the common law in relation to tribunal membership, as codified in Inquiries Act 2005 s 8(1) which provides:
(1)In appointing a member of the inquiry panel, the Minister must have regard—
(a)to the need to ensure that the inquiry panel (considered as a whole) has the necessary expertise to undertake the inquiry;
It perhaps goes without saying that as lawyers we must give all the time needed for a client’s matter. I am not entirely clear how Mrs Woolf will deal with this inquiry alongside all her other duties. Mr Justice Waterhouse, for example, had to read 9,000 files and 3,500 statements in the North Wales enquiry (http://tna.europarchive.org/20040216040105/http:/www.doh.gov.uk/lostincare/20102a.htm) . I suspect this enquiry will generate much more work.
Impartiality: freedom from ‘bias’
The common law requires that as solicitors we avoid conflicts of interest in relation to clients; and that a magistrate avoids any question of partiality or ‘bias’ as it is known in law. Both involve conflicts of interest; but it is the bias question which predominates here. I tried to explain a little about this in https://dbfamilylaw.wordpress.com/2014/09/06/reflections-on-law-of-bias/ . It is a cardinal principle of administrative law that no decision-maker – and that includes judges, inquiry members and civil servants – is biased. The principle, for inquiry members is restated (please forgive me for repeating this) in Inquiries Act 2005 s 9:
9 Requirement of impartiality
(1)The Minister must not appoint a person as a member of the inquiry panel if it appears to the Minister that the person has—
(a)a direct interest in the matters to which the inquiry relates, or
(b)a close association with an interested party,
unless, despite the person’s interest or association, his appointment could not reasonably be regarded as affecting the impartiality of the inquiry panel.
(2)Before a person is appointed as a member of an inquiry panel he must notify the Minister of any matters that, having regard to subsection (1), could affect his eligibility for appointment.
(3)If at any time (whether before the setting-up date or during the course of the inquiry) a member of the inquiry panel becomes aware that he has an interest or association falling within paragraph (a) or (b) of subsection (1), he must notify the Minister.
(4)A member of the inquiry panel must not, during the course of the inquiry, undertake any activity that could reasonably be regarded as affecting his suitability to serve as such.
I assume Mrs Woolf told the Home Office of all matters relevant to her impartiality under s 9(2). I know a few people are likely to press the Home Office for details of what has been said by her.
Liverpool had Lord Scarman (a House of Lords judge); the David Kelly inquiry had Lord Hutton (another House of Lords judge); the press had Lord Justice Leveson (Court of Appeal). Waterhouse J was a highly experienced family court judge. I will leave Mrs Woolf to assert how she says her ‘expertise’ (s 8(1)(a) above) matches theirs: their judicial skills, and (in this context) her detailed knowledge of children law.
Do abused children – survivors and those still suffering – deserve anyone with lesser judicial skills than people such as Lord Scarman or Lord Justice Leveson; or an inquiry with lesser intellectual weight?