‘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 in setting up the inquiry,’ you reminded me.
‘Yup, and that.’
‘Well?’ Your anger had returned, tinged with impatience. ‘Any thoughts, or – better still – any answers on all this?’
‘I’ve got some thoughts. I can tell you a bit of law about it all. But we may be in legal uncharted waters with some of it. The common law cannot always give clear answers. Like life, the future cannot always be comfortably and clearly predicted – any more than a medic can always tell you the outcome of an operation.’
Impartiality and bias
I have already gone on a lot about ‘bias’ (https://dbfamilylaw.wordpress.com/2014/09/14/csainquiry-panel-expertise-and-bias/); and you’ll remember it’s one of the two fundamental aspects of a fair trial (the other is to hear both sides). At this point it is worth stressing the exact terms of European Convention 1950 Art 6(1):
In the determination of his civil rights and obligations …, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law.
That the tribunal (ie the judge or the court) must be ‘impartial’ is there in clear words. ‘Bias’ means that you are not impartial. I am saying that an inquiry member is in no way different from a judge: the panel member must be entirely impartial (and this is stressed also by Inquiries Act 2005 s 9: quoted in blog 2014/09/11 below). A fair trial – and so too a fair inquiry – demands freedom from bias: ie complete impartiality.
And the need for an inquiry panel member to be impartial may go further: a judge works on the basis of the arguments put to the court. Normally, in English law, the judge does not go outside that. An inquiry must go further. It has an inquisitorial role. Literally, an inquiry inquires (https://dbfamilylaw.wordpress.com/2014/09/11/an-inquiry-inquires/). It must dig and look outside the evidence presented to it. Look at how Lord Justice Leveson (see below) dug around in the press inquiry.
If, for example, a panel member knows a person who should be inquired into it is always going to be much harder to press inquiries against them. A judge would automatically regard themselves as barred from a case if a colleague or friend or other associate were involved in a case (###). And for an inquiry panel member, I believe, the need for impartiality is greater even than for a judge.
A judge’s partiality in a case can be challenged in the course of the case or at a hearing. If an inquiry member is not frank about his/her suspected bias and the government ministry will not produce information, the only way for challenge to the panel member is by judicial review.
Inquiries Act 2005 s 8(1)(a) requires that when a panel member is appointed, a minister ‘must have regard to the need to ensure that the inquiry panel (considered as a whole) has the necessary expertise to undertake the inquiry’. I accept that, for the present this is a discretionary inquiry; but I believe say that much the same rules on expertise apply to a discretionary as to a statutory inquiry.
I don’t believe that Mrs Woolf has any expertise in the area of child sex abuse (and see https://dbfamilylaw.wordpress.com/2014/09/14/csainquiry-panel-expertise-and-bias/). As a lawyer her experience is separate from the field of children law and crime. Her forensic skills are not mentioned. We do not know what ‘expertise’ the Home Secretary perceives in her for the job. ‘Considered as a whole’, I would say the panel lacks forensic expertise to do the job.
Whether Mrs Woolf can realistically take it on with all her other duties: well that is another point which she must surely consider? She is a woman who accumulates honours: that is not what this job needs: it is an acute and inquiring mind. I have no reason to believe she has either.
Consultation of individuals concerned
Strictly speaking the law does not require Mrs May, the Home Secretary, to consult on her appointment of the inquiry panel. However the tendency of modern government and administration is to consult whenever reasonably possible. In R (ota LH) v Shropshire Council  EWCA Civ 404 in the Court of Appeal Longmore LJ explained the position as follows:
Consultation on what?
 In the absence of any express or implied statutory duty to consult, the obligation to consult stems from the expectation that a public body (such as a local authority) making decisions affecting the public will act fairly. If therefore a local authority withdraws a benefit previously afforded to the public, it will usually be under an obligation to consult with the beneficiaries of that service before withdrawing it. That obligation requires that there be a proposal, that the consultation takes place before a decision is reached and that responses be conscientiously considered.
The point was discussed in last Friday’s legal aid case (19 September 2014: R (ota London Criminal Courts Solicitors Association and Criminal Law Solicitors Association) v The Lord Chancellor  EWHC 3020 (Admin), Burnett J http://www.judiciary.gov.uk/wp-content/uploads/2014/09/the-queen-on-the-application-of-lccsa-clsa-v-the-lord-chancellor.pdf) where the judge set aside – ‘quashed’ – a decision by the Lord Chancellor on legal aid because the Lord Chancellor (ie the Ministry of Justice) had not consulted properly.
Mr Justice Burnett explained the ‘applicable legal principles’:
 There is no statutory duty to consult in connection with legal aid changes but a long-standing practice of doing so…. The Courts have considered procedural fairness in the context of the adequacy of a consultation process on countless occasions. The decision in each of those cases is highly fact and context sensitive: see R (Easyjet Airline Co Ltd) v Civil Aviation Authority  EWCA Civ 1361 per Dyson LJ at . In R v Secretary of State for Education ex p M  ELR 162 at 206 – 207, Simon Brown LJ cautioned against applying a mechanistic approach to what was required in a consultation exercise. The essential features of an adequate consultation exercise were summarised by Lord Woolf MR  and  of the judgment of the Court of Appeal in: R v North and East Devon Health Authority exp Coughlan  QB 213,  EWCA 1871.
The judge then quoted these passages, in particular the following:
 It is common ground that, whether or not consultation of interested parties and the public is a legal requirement, if it is embarked upon it must be carried out properly. To be proper, consultation must be undertaken at a time when proposals are still at a formative stage; it must include sufficient reasons for particular proposals to allow those consulted to give intelligent consideration and an intelligent response; adequate time must be given for this purpose; and the product of consultation must be conscientiously taken into account when the ultimate decision is taken (R v Brent LBC exp Gunning  84 LGR 168).
How does this apply to inquiries? The position is much less clear. There is a survivor’s group and some highly articulate members. I can see that they could be consulted on terms of reference for the inquiry; and there are plenty of reasons why they should be.
Whether, though interested parties, survivors can expect to be consulted on membership of a panel seems to me more doubtful. It is one thing to challenge the judge in a case because of bias. To assert positively who should be the judge – ie choose your judge – is quite another matter. An inquiry panel is not the same as a judge; but I can that this question presents problems.
‘Within a reasonable time’
One of the most difficult things in answering questions about inquires is that I have to keep reminding myself that we are not talking about court proceedings, but about a different form of hearing. There are similarities; but there are important differences. So it is with delay. European Convention 1950 Art 6(1) is the starting point for a fair trial (as mentioned above); and that requires trial ‘within a reasonable time’. Children Act 1989 s 1(3) assumes that delay will be prejudicial to a child’s welfare.
Given the urgency of the issues and that they must be the subject of inquiry and recommendation as soon as possible, it is reprehensible that it has taken over two months for the Home Secretary to have appointed two chairs to the inquiry – one of whom has resigned, and the other of whom is subject to serious allegations of bias (and has taken over two weeks to date for her to write a letter explaining these allegations).
If prejudice to those who are the subject of the inquiry – the survivors and children still affected – can be shown to be suffering, this would seem to be a reason to press the Home Secretary for answers urgently and for promptness in progress with the inquiry. It is worth noting that the events which lead to the Leveson inquiry on the press (http://webarchive.nationalarchives.gov.uk/20140122145147/http:/www.levesoninquiry.org.uk/) occurred in July 2011. Lord Justice Leveson opened inquiry hearings on 14 November 2011. He was concerned to establish ‘who guards the guardians?’ (ie the press). We are the guardians of our children: similar urgency may reasonably be expected of a child sex abuse inquiry. Lord Justice Leveson published his Report on Part 1 of the Inquiry on 29 November 2012 (a year after starting work) after he had heard evidence from a wide range of witnesses, including newspaper reporters, management, proprietors, police officers and politicians of all parties, all of whom gave evidence to the inquiry under oath and in public. This timing and format could be said to provide a precedent.
‘So there are no clear answers to a lot of this I’m afraid; though I am clear that the Home Secretary must say what she knows of Mrs Woolf’s bias. And I doubt that Mrs Woolf has anything like the expertise or experience to do the job she has agreed to take on.’
You were frowning. I sensed you were unimpressed by my answers. ‘But, what if…’