Introduction: ‘a law to stop this…’
‘There must be a law to stop this’ you said angrily.
‘Meaning what is – or rather is not – happening with this child sex abuse inquiry. People are getting ill over the delay. Oh and – obviously – the corruption of Fiona Woolf’s appointment…’
‘We don’t know it’s corrupt; but we know we don’t know what she’s told the Home Office.’
‘Well we have human rights… Don’t we’. There was anger still in your look, but also a note of hope in your voice as you watched me.
‘Yes we have human rights’ I said slowly. ‘And there’s the common law as well…. But hey?.. where does that leave us? Where does that leave what’s happening with this inquiry?’
‘OK, yes, where? They’ve failed to appoint a chairman with the right expertise; and they’ve failed to scrutinise properly – perhaps not at all? – the panel’s partiality. They haven’t talked to any of the survivors about what they’re expecting. And can anything be done over the delay in setting up an inquiry like this.’
‘So… a law to deal with all this? Maybe there is; or at least maybe, for some of your questions. I need to set out a few basics first. I start from the fact that an inquiry like this is set up by a Government minister, in this case the Home Secretary. She makes the speech, or reads out the Home Office statement. It is her civil servants at her direction who make the underlying decisions.’
‘So it depends on what the Government decides’?
‘Yes; but that depends on what the law – administrative law in this case – says they can do…’.
The basics: administrative law and common law
The setting up of any inquiry is a matter for administrative law: that is the away the law is operated by the Government (the executive). Law is made up of the judge-made common law as explained in case, and statute law; and a large part of our common law is a judge explaining what is meant by statute law (‘statutory construction’). This is all overlaid by European Convention 1950 law; though here most European Convention 1950 law comes to the same thing as the common law.
The two fundamental principles of law, and of quasi-judicial decisions made by an administrative decision-maker – eg an inquiry or a civil servant for a Government minister – are that the decision-maker must hear both sides of an argument before making a decision; and that the decision-maker must have no personal interest in the outcome of the case or inquiry other circumstances demanding a decision (ie ‘bias’).
The main scope for challenge of administrative decisions is judicial review. This does not enable a judge to re-make the decision, but to check whether the decision-maker has done his/her job properly. For example, has the decision-maker exercised his/her powers properly in accordance with the powers given by Parliament (eg made regulations within what Parliament anticipated); has s/he followed the correct procedures in reaching the decision (eg consultation of the appropriate people: I come back to this); and in exercising discretionary powers has the decision-maker acted fairly and reasonably? If not a High Court judge can set aside a decision unlawfully wrongly or unfairly made; or order the decision-maker to do what the law says s/he should be doing.
Judicial review and the common law
And this is where the common law comes in. Judicial review is a remedy developed by judges, almost by definition. They have very wide discretion – ie power to decide which way to jump on a particular question; and sometimes we can only guess what they will do. The guess will be educated by what previous judges have done. In the area of inquiry law there does not seem to have been very much judicial action.
Judges are a cautious breed. One of the best and most liberal judges of the past thirty years is Lord Bingham (see his book Rule of Law Tom Bingham, 2008). In Rule of Law he spoke of the importance of judges moving law only slowly along a line. If the law is changed too radically by judges it may be unfair on earlier case, or on cases in the pipeline. Radical change of law is for Parliament. The field of judicial review is a classic case in point; no judge is likely to want radically to reinterpret the common law; and probably not in such a controversial area. That said, there is no reason why the law on inquiries should not be reviewed and parts of it reframed in the light of the questions you’ve asked.
Judges and quasi-judicial decision-makers
The essence of an administrative decision is that it is like a judge’s decision in court. The decision-maker must have all relevant facts; must understand the law and any discretion which a law has given to him/her and must apply the law and informed discretion to the facts. The decision-maker – like the judge in court – can then make a decision. The more the decision-maker complies with these rules the less s/he is likely to be open to challenge on judicial review.
In what follows I will treat administrative decision-making as ‘quasi-judicial’. The decisions of a decision-maker in terms of their assessment on judicial review – procedure adopted, application of relevant law etc – must be approached and judged in much the same way as those of a judge.
There is one crucial exception to the role of the decision-maker as against that of the judge. A judge can – and sometimes must – create law, because there is none there: this is the common law in action. By definition an administrator can only operate where Parliament has said they can; and this will be by Act of Parliament, or properly made regulations, rules or guidance under that Act). S/he must make sure s/he acts within the four corners of powers granted to him/her; that any discretion exercised is permitted by law; and that decisions which are taken are in accordance with the spirit of the law in question.
Common law and human rights
One last point, which may crop up here. In many ways English common law and human rights law come to much the same thing (a law of privacy developing from European Convention 1950 law is an exception). Lady Hale explained this in a recent speech (http://www.supremecourt.uk/docs/speech-140627.pdf). But the common law may go further. It is difficult to see that a Convention right has been breached by there being no basis for challenge to the setting up of the inquiry: ‘bias’ there may be; but does this restrict any particular person’s right. An inquiry, for example, is not a ‘trial’ of anyone – ie it does not conflict with their civil rights – so European Convention 1950 Art 6(1) (right to a fair trial) is not infringed.
‘And so, my friend, can the common law be asked to put right a possible gap in fairness of the law such as over the inquiry panel make up?
You were looking at me with a slightly glazed expression. ‘OK, I’ve got all that, but where does that get us with my questions?’
‘Right. Your questions: impartiality and bias; expertise of an inquiry member; and consultation of individuals interested in the proceedings and outcome of the inquiry?’
‘And the delay’.
‘Yup, and that.’
‘Well?’ Your anger had returned, tinged with impatience.
[To be continued]