A clanking machine; and no direction home
The progress towards setting up the #CSAinquiry makes me think of a large old clanking steam roller going backwards up a hill. No-one on the metal machine knows what is at the top of the hill or what is over the cliff on the far side of the top; but the machine ploughs on, steadily. It has no real direction to go (but its drivers don’t know that). It has no direction home; and no planned way forward to the report which is expected to emerge.
A real problem for survivors, and anyone else who wants to see this inquiry emerge with a truly effective report, is that Snow May and the seven politicians all thought their job was done when the inquiry was announced on 7 July 2014. They assumed – I imagine – that it would merrily plough on from May’s breathless announcement; and that, all in good time, a report would emerge. The old clanking machine set off up the hill. None of the politicians and their various staff (1) contemplated in any structured way what the inquiry is expected to achieve. And (2) none – Snow May, or anyone else – have addressed the facts that the inquiry must have at a minimum the following:
• a format and structure (eg panel; panel with a chairman; chairmen with experts or assessors);
• that the basic common law (eg as to the impartiality of those involved) must be complied with; and
• that, given the importance of the inquiry – for survivors and the future of child law – some clear terms of reference must be defined.
The result is that the Home Secretary and the politicians have not addressed (1) (what the inquiry is expected to achieve); and all sorts of people – survivors, concerned individuals, family law reformers (like me), journalists, bloggers and the like – are making a lot of noise about the various elements of (2) without themselves – for all their concern and well-meaning – being clear as to (1) either. At least, that seems pretty much the position, as far as I can see.
And still the old clunking lump of metal trundles backwards up that hot scrubby hill.
For now I will define some of the terms which I think apply; and then on another day I shall try to be more specific about what is an inquiry under Inquiries Act 2005 and why I think this inquiry must be set up – as soon as possible – with a statutory format.
Format of the inquiry
An inquiry like this set up by a Government minister can be (1) discretionary – ie the minister can ask it to do what the minister defines by terms of reference; or (2) it can be statutory.
A statutory inquiry is set up under Inquiries Act 2005. Its powers to call witnesses are more extensive than for a discretionary inquiry; but its procedure is still intended to be relatively informal. (My impression is that the child sex abuse inquiry is not yet even clear, six months in, as to what procedures it will adopt: calling witnesses, evidence, representation for anyone, expert evidence etc). A statutory inquiry is subject to a set of Inquiry Rules 2006.
What might this inquiry want to do?
An enquiry has no power to establish guilt. It is not there ‘to see justice done’. That is for the police. The inquiry inquires, literally. It takes evidence – of fact and of opinion. And it reads documents (potentially mountains of documents with this inquiry). It then reports to the minister who set it up.
Someone – and it must not be the Home Secretary or any of her minders (‘officials’) – surely needs to be clear how the inquiry is to deal with the evidence: what evidence, why and from whom? For example:
(1) Evidence as to what happened to some survivors: eg by statement to third parties; by statement to specialist evidence gatherers etc.
(2) Evidence from those involved in cover-ups; politicians; police; institutions (schools, local authorities etc). Should these people be cross-examined and by whom?
(3) Witnesses who can describe the present system for dealing with child sexual abuse: police, courts, schools and other institutions: what is happening on the ground today?
(4) Witnesses – including health professionals, academics, family lawyers and other opinion witnesses – who can put forward thoughts for the future of child safeguarding and protection (eg review of Working Together etc etc).
The inquiry will need to direct itself carefully as to to what extent it can, or needs to, consider a wealth and massive variety of documents and of live evidence; and to avoid the 15 years and more which eg the Saville Inquiry needed. The inquiry will need to distinguish between witnesses of fact and witnesses of opinion (experts and assessors). As it is at present set up, with a rump of panel members, I should have thought that they may need to be reminded that they are not witnesses, or entitled to express an opinion (whilst they have a semi-judicial capacity). Truly, though, but the panel stretch of water, as things now stand, is very murky.
A firm hand – I would say a single hand – at the wheel of the clanking inquiry machine will be needed to unravel the forms and variety of evidence; how it is to be collated; and where opinion evidence and panel information are to be unscrambled and knitted together again for a coherent report.
Terms of reference
Once the above has been done (and it need not take very long if it is done in a clearly defined way (six months in, and there is no evidence that the Home Secretary is even beginning to think in any sort of logical way)) the broad format of the inquiry and the structure for what it is to do is will be reasonably clear.
Then – but only then – the Home Secretary, with a proposed chair (this is what Inquiries Act 2005 directs, if she chooses a statutory inquiry) can consult with interested parties (including survivors and their representatives) to put into clear words the terms of reference of the inquiry.
The clanking machine can then be turned so it is pointing in the right direction; it can be driven back down the hill onto a flat area – ie the potentially substantial array of information and evidence; and the beginnings of a realistic inquiry with a chance of achieving something for survivors and future generations of children can move forward in a structured and purposeful way.
To follow: definition of a ‘statutory inquiry’.