#CSAINQUIRY: A STATUTORY INQUIRY – some answers

Why a statutory inquiry?

In his blog of 2 November 2014 http://davidhencke.wordpress.com/2014/11/02/child-sex-abuse-inquiry-debacle-why-it-is-important-where-we-go-next/#comment-14969 David Henke (‘DH’) suggests caution in urging the Home Secretary to hold a statutory child sex abuse inquiry. I expressed concern about the passages below in his article; but he assured me he had spoken to ‘another child abuse lawyer @Richard_Scorer ’ (I wouldn’t call myself and ‘abuse’ lawyer: just a family lawyer, with a special interest in administrative law (ie judicial review)).

Mr Scorer, he told me, ‘seems to think I have got it right and even underestimated the position.’ This is Richard Scorer: ‘lawyer, national head of abuse team…. author & Labour councillor…’. These are the passages which troubled me:

(1) ‘a statutory inquiry which can compel people to attend, give information, force people to confess to crimes, with grand public hearings and a very detailed terms of reference. Be careful what you wish for.’
(2) ‘I am told it allows lawyers representing anybody or organisation accused by survivors to demand the status of “an interested party”. That means anything you tell them could go straight back to their lawyers before the inquiry even reports…. If it is non statutory there is no obligation whatever to tell them anything – and their lawyers have no right to find out.’
(3) ‘Finally I hope the panel can tell you whether they have obtained a freezing or preservation order on all documents listing evidence or allegations of child sexual abuse.’

Open justice principle

I have explained questions of open justice – which most journalists want (per European Convention 1950 Art 10 and Human Rights Act 1998 s 12) – at eg https://dbfamilylaw.wordpress.com/2014/10/31/why-family-law-gets-privacy-wrong-response-to-transparency-consultation/ in the context of court proceedings. Openness can be overridden at appropriate stages in the process of a court hearing – eg children or over-anxious witnesses. The court can go into camera (private). With sensitive documents (and the police and others may argue for this) there are ‘closed material procedures’. The question of the extent to which this applies to a statutory inquiry as it does in civil courts is a matter which may need to be decided upon as the inquiry goes along by the chair.

But talk of ‘grand public hearings’, of things going straight back to lawyers (but not to the press? – is that what is want?) has the feeling of being emotive. It is based on no legal authority – statute or common law – of which I am aware.

One of the first rules of statutory inquiry process is that the chair decides procedure (which suggests a judge in the chair might be no bad idea on that account alone). Inquiries Act 2005 s 17 says:

17Evidence and procedure

(1)Subject to any provision of this Act or of rules under section 41, the procedure and conduct of an inquiry are to be such as the chairman of the inquiry may direct.

(2)In particular, the chairman may take evidence on oath, and for that purpose may administer oaths.

(3)In making any decision as to the procedure or conduct of an inquiry, the chairman must act with fairness and with regard also to the need to avoid any unnecessary cost (whether to public funds or to witnesses or others).

I am afraid I do not know what Mr Scorer told DH was meant by s 17; but I see nothing of open courts and grand tribunal hearings. The two cases on inquiries I have cited in the JR application https://dbfamilylaw.wordpress.com/2014/10/23/csainquiry-grounds-of-judicial-review-application/  were both cases where the court agreed with a minister that the tribunals should be held (pre-Inquiries Act 2005, it must be said) in private.

‘Interested party’

The term ‘interested party’ is defined in Inquiries Act 2005, but my brief researches there does not tell me why it is there (ie I can’t find the section which deals with it; but I’ve probably looked no harder than Mr Scorer). The term is not even referred to in the Inquiry Rules 2006. ‘Core participants’ can have legal representatives (Inquiry Rules 2006 rr 5 – 8).

I find this whole passage so surreal, I should perhaps say no more till I can be told what the legal source of it is.

Freezing or possession orders

Under the heading ‘freezing or preservation orders’ DH switches back to a panel, and asks ‘whether [it can say if] they have obtained a freezing or preservation order on all documents listing evidence or allegations of child sexual abuse.’ I had genuinely thought about search and seizing powers for an inquiry (used to be called an Anton Piller order); but where DH and Mr Scorer leave me behind is that they have not explained to me how such orders can be made by an inquiry.

‘Freezing orders’ like ‘search orders’ are injunctions (Senior Courts Act 1981 s 37; granted under Civil Procedure Act 1997 s 7), which in the case of a search order can only be granted in the High Court, and of a freezing order mostly in the High Court (with one or two cases being dealt with in the family court or county court). That is these orders are only available from a court. Further an injunction cannot normally made against the Crown, which would exempt many of the documents an inquiry might want to freeze, or cause to be searched for.

Legal sources

I have tried to set out a law basis for most things I’ve said. I beg anyone else who asserts points of law to say where they’ve got it from. And this is especially where things are read by child sexual abuse survivors (a) who are very anxious to see this child sex abuse inquiry get off to a proper start (most that I am aware of would prefer a statutory inquiry chaired by a judge); and (b) who have enough worries without unreliable information (if DH’s is unreliable?) being put out.

I don’t mind mopping up the legal points afterwards; but I’d much prefer that journalists or anyone else ask me first. I promise I’ll do my best to state what law I know. I’ll say when I don’t know (and there are lots of bits in this area of law where things are unclear). And I won’t tell you things just because I think that’s what you want to hear.

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#CSA SURVIVORS DEMANDS TO THERESA MAY, HOME SECRETARY

CHILD SEX ABUSE INQUIRY: Survivors to Theresa May, Secretary of State for Home Department

From the undersigned survivors of child sexual abuse; and in respect of the Home Office child sex abuse inquiry (‘the inquiry’) announced on 7 July 2014

WHEREAS:

  • You have agreed to consult on the matters referred to below; and as a matter of fairness you should do so;
  • We urge that the inquiry start as soon as possible; but we are mindful that it should be set up in a way in which we have as much confidence as possible

WE RESPECTFULLY demand:

  1.  That we, and any other survivors whose addresses are notified to you by 29 November 2014, individually be consulted as to the appointment of a chair to the inquiry
  2. That we individually be consulted as to the terms of reference of that inquiry (‘terms of reference’)
  3. That the inquiry should be on a statutory basis under Inquiries Act 2005, with full powers under that Act
  4. That the chair should start work full-time immediately following finalisation of the terms of reference at 4 above
  5. That the chair should report six-monthly to Parliament, to your Department and (in summary form) to individual survivors who respond, and until such time as the inquiry is complete in accordance with the terms of reference.

Dated this …………. day of November 2014

Signed: ……………………………………   Full Name: ……………………………………..

Please indicate your area of concern:

Survivor                      Concerned Family Member                            Professional

Other: ……………………………………………………………………………………………

If you wish to add your name to a list of survivors addressed to Mrs May, Secretary for State for Home Department please email elainehook@hotmail.com to request a form; and to complete the form and return it by email to elainehook@hotmail.com no later than 12.00 noon on Friday 14th November 2014.
Very many thanks.

#CSAINQUIRY: REQUEST – SURVIVORS TO HOME SECRETARY

Note from David Burrows

To any survivor reading what follows:

Here’s a first attempt at a throughly justified demand/request to Mrs May: I’ve never drafted something like this before (ie my ‘expertise’, like another prominent solicitor I know of, is limited in this field).

I’ve tried to keep it simple: five demands (where there are bullet pts there should be numbers; but translation from Word to Worpress on my computer seems to loose this: sorry).

I’ve not mentioned my own preference for a High Court (or higher) judge. I go for a judge, not because I’m a lawyer and so are they. (In fact they are judges, and I am an advocate (as is M Mansfiled QC): ie totally different jobs, in my view.) It is because judges are trained to be impartial (and know when to say if they are not); they are trained to read piles and piles of papers, and to assimilate the important issues from them; they are trained to deal with all aspects of child law and crime (if a specialist child lawyer); and they do their job without fear or favour and take on anyone they think they need to take on, cross-examine etc.

CHILD SEX ABUSE INQUIRY:

Survivors to Theresa May, Secretary of State for Home Department

From the undersigned survivors of child sexual abuse; and

In respect of the Home Office child sex abuse inquiry (‘the inquiry’) announced on 7 July 2014

WHEREAS:

  • You have agreed to consult on the matters referred to below (and as a matter off fairness you should do so);
  • Whilst we urge that the inquiry start as soon as possible, we insist that it be set up in a way in which we have as much confidence as possible

WE RESPECTFULLY demand [request]:

  • That we, and any other survivors whose addresses are notified to you by 29 November 2014, individually be consulted as to the appointment of a chair to the inquiry (‘the chair’)
  • That we individually be consulted as to the terms of reference of that inquiry (‘terms of reference’), which will be fixed finally by you in agreement with the chair
  • That the inquiry should be on a statutory basis under Inquiries Act 2005, with full powers under that Act
  • That the chair should start work full-time immediately following finalisation of the terms of reference
  • That the chair should report six-monthly to Parliament, to your Department and (in summary form) to individual survivors whohave provided a means of contact to your Department; and that this reporting arrrangement will continue until such time as the inquiry is complete in accordance with the terms of reference.

DAVID BURROWS

Dated this     day of November 2014

Signed…

JUDICIAL REVIEW AND HOW IT WORKS

Review of a public body decision

Judicial review requires High Court judge to reconsider a decision (or failure to make a decision) of a public body (eg government departments, local authorities etc). The court considers whether the body made the decision correctly: that is, did it have power to decide the way it did (‘unlawfulness’), did it act rationally in making its decision (‘reasonableness’), and were correct procedures followed (‘procedural’): explained further below?

The court does not re-make the decision. It has the power to quash it (‘quashing order’: ie set aside what the decision-maker has decided), to order the body to do something specific (‘mandatory order’: eg carry out a consultation of individuals affected by a decision) or to tell it not to proceed as it proposes (‘prohibitory order’). The public body decision-maker must then deal with the case within the terms of what the judge has told it to do; or remake the decision with the judge’s decision in mind.

Grounds for judicial review in child sexual abuse inquiry

In the case of the child sex abuse inquiry it is said the Home Office did not act lawfully, and that it failed to follow correct procedures (eg in relation to consultation). In outline this is because of the following:

Lawfulness

The judicial review application asserts that the Home Office did not consider the appropriateness of Mrs Woolf, and the early panel members, till after their appointment (this is clear from the documents finally released by the Home Secretary on 21 October 2014). Mrs May did not properly consider the experience of the panel members.

When their experience and partiality was considered it was on the basis of documents drafted by Home Office officials and the QC taken on for the inquiry (certainly in the case of Mrs Woolf’s letters). The technical legal term for lack of partiality is ‘bias’ as it is called formally in law (I explained this fully in my ‘Open letter to Mrs Woolf’ at https://dbfamilylaw.wordpress.com/2014/09/07/csainquiry-open-letter-to-fiona-woolf-on-bias/ published on 9 September 2014).

The making of the appointment before consideration of expertise and bias is, it will be said, unlawful.

Procedurally wrong

There are two main areas of procedural wrongness in the case of the child sex abuse inquiry. First, consultation was promised Mrs Villiers in the House of Commons in later September 2014. This unquestionably created a ‘legitimate expectation’ – that people could reasonably expect to be consulted about the terms of reference, at least. There would be consultation with people affected by the inquiry – such as survivors – at least as to the terms of reference of the inquiry of this. The law says that, in this context, consultation would have been ‘fair’ in law. (As I write this the BBC news says ‘survivors’ groups’ are to be consulted on a new chair; but there is no mention of the terms of reference.)

Secondly, reference is made by the panel members’ letters (published on 21 October) to Inquiries Act 2005; yet the inquiry remains non-statutory. A judge on judicial review can be asked to find that this is not rational; and to quash the present decision to set up the panel (with its existing secretariat).

Most survivors say the inquiry should be set up under a single High Court (or higher) judge, who has experience of family law.  (It might also be said that the facts which support this ground is ‘irrational’: in context the rational approach of a decision-maker would be to appoint a single chair who can, for example, take evidence and call upon expert assistance.)

Judicial review procedure

The court procedure for judicial review is intended to be relatively quick and simple; and it is only very rarely dealt with in open court, with live evidence being heard. A judge deals with the case on papers put before the court, and on hearing the parties’ advocates.

Judicial review creates a two-stage process (defined by Civil Procedure Rules 1998 Part 54). First an applicant has to get the court’s permission to proceed. Only a minority of applicant’s get past that stage.

The second, and substantive stage, is that applicant’s claims before the court are heard by a High Court judge who must decide whether grounds exist in fact and in law. If the judge says grounds apply, then s/he decides whether or not to make an order. That is to say, the applicant might prove his/her case, but still not get the order he or she seeks (as happened to Ms Mosley in the recent ota Mosley case below: and see https://dbfamilylaw.wordpress.com/2014/10/29/consultation-and-fairness-after-mosely/: she won overwhelmingly on points, but lost in the result).

Grounds for judicial review

More information on how the main judicial review grounds are characterised (based on Lord Diplock’s characterisation in Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374) follows:

(1)        Illegality or unlawfulness

By definition a public body can only proceed in a way which is sanctioned by law (by an Act of Parliament, or delegated legislation under an Act). ‘Illegality’ means a failure to act within the law. For example, when the decision-maker contemplates a decision s/he must understand the law on which it is based and must apply the law correctly; and s/he must proceed upon a correct assessment of the underlying facts. If the decision-maker is found not to have proceeded according to his/her statutory powers his/her decision is ultra vires (ie outside powers provided by the law).

It is illegality if a decision-maker fails to take into account a relevant issue or takes into account an issue which is excluded by statute from consideration. For example, local authorities are required to take account of the views of certain prescribed persons when deciding whether to accommodate a child (Children Act 1989, ss 20(6) and 22(4)). In R (ota Mosley) v London Borough of Haringey [2014] UKSC 56 Housing Acts required consultation to be undertaken by those likely to be affected by a decision. To fail to take account of all relevant views, leaves open the risk that the decision may be quashed, because it has not been made fairly.

(2)        Irrationality

The classic formulation of ‘irrationality’ is set out in Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223, CA: did the decision maker or public body – in that particular case it was a local authority – take into account matters which they should not have done; or did they fail to take into account matters which they should have considered. Even if they did not act in this way, did they nevertheless come to a conclusion ‘so unreasonable that no reasonable authority could have come to it’? A wider definition of ‘irrationality’ is more likely to be adopted by the courts nowadays; but for many judges the Wednesbury formulation remains the starting point.

The operation of the power is one thing. Its rational use within its legal context is quite another; and the question of whether its operation has been correctly reasoned is what is under consideration. The scope for interference by the courts is narrow. Unless the decision-maker exercises his discretion in a way which is so unreasonable that no reasonable decision-maker could have so operated, and he has taken into account the correct questions, then his decision will not generally be said to have been irrational.

(3)        Procedural impropriety

A decision-maker must act fairly, that is to say in accordance with the principles of natural justice. Common law concepts of natural justice have been extended by European Convention for the Protection of Human Rights and Fundamental Freedoms 1950, Art 6(1) (right to a fair trial). A right to a fair trial does not affect the actual rights which the courts are required to protect; but the Article protects or guarantees the procedures (including, for example, evidential rules) by which those rights are protected. Thus the decision-maker must have regard to the two fundamental bases of judicial, or quasi-judicial (as with an inquiry chair) decision-making: namely that the decision-maker must be free from ‘bias’ and that both sides of an argument must be considered by a decision-maker (audi alterem partem).