It has been suggested that an initial draft form of terms of reference might be helpful as a starting point for discussion by survivors and their representative bodies. Below is such a  draft.


Please do not think I have any special expertise in drafting inquiry terms of reference. I am but a lay person (with some legal experience) in this.


What follows is a draft – very much a draft – based very loosely indeed on the terms of reference approved in Jersey in March 2013 for their continuing inquiry.


This child sexual abuse inquiry is set up within the terms of Inquiries Act 2005.[1] It is asked and directed to inquire into the following and to make recommendations:

Part 1: Past events

  1. Establish the types of institutions (including specific institutions: eg schools, foster and other local authority home) in which sexual abuse of children occurred, or is alleged to have occurred, for a period since 1960.[2]
  2. Establish and define in what other circumstances of any type (eg in Rochdale, Rotherham and Westminster) child sexual abuse occurred.
  3. Define the organisations and their administration (including recruitment and supervision of staff), management, governance and institutions and any other establishments caring for children, where child sexual abuse has been alleged, in the period under review.
  4. Consider whether child protection aspects of all institutions and establishments were fully appropriate (in objective and modern terms) to meet the proper needs of children and their safeguarding and protection.
  5. Examine and inquire fully as to any political and other oversight of children’s homes, fostering services schools and other establishments run by any public body concerned with child protection (eg local authorities and government departments and ministers). For the avoidance of doubt this aspect of the inquiry will require that witnesses be examined publically as to their involvement (and is likely to involve examination of former government ministers and other local and national politicians).
  6. Define all other relevant independent investigations and reports conducted in response to child sexual abuse issues in the period under review.
  7. Consider the experiences of those witnesses who suffered abuse or allege abuse, and hear from staff who worked in these services, together with any other relevant witnesses. It will be for the inquiry to determine, by balancing the interests of justice and the public interest against the presumption of openness, whether, and to what extent, all or any of the evidence given to it should be given in private.
  8. Identify how and by what means concerns about abuse were raised and how, and to whom, they were reported.
  9. Establish whether systems existed to allow children and others to raise concerns and safeguard their wellbeing, whether these systems were adequate, and if not to identify such failings as in the inquiry’s opinion there were.
  10. Consider and define (1) to what extent systems now exist to enable children and others who allege child sexual abuse to raise concerns and safeguard each individual child’s wellbeing; (2) whether these systems are adequate; and (3) if not to identify such failings as in the inquiry’s opinion there were.
  11. Review the actions of the agencies of the government, the justice system and politicians during the period under review, in particular when concerns came to light about child sexual abuse and how they were responded to by the agencies who should have responded.
  12. Consider how all those concerned with child protection (eg Police departments, Health authorities and Education and Social Services Departments) dealt with concerns about alleged abuse, what action they took, whether these actions were in line with the policies and procedures of the day, and whether those policies and procedures were adequate.
  13. Establish whether, where child sexual abuse was suspected: (1) it was reported to the appropriate bodies, including police and children department; (2) what action was taken by persons or other public bodies including the police; (3) whether this was in line with policies and procedures of the day; and (4) whether those policies and procedures were adequate.

Part 2: Recommendations

  1. Review fully present procedures and practices, and hear from appropriate individuals and representative and public bodies as to what their recommendations would be.
  2. Make full recommendations – including further primary and delegated legislation and statutory guidance – to ensure as far as possible that responses to such child sexual abuse as is identified by the inquiry never happens again.
  3. To make recommendations as to how criminal and family court proceedings can be co-ordinated and operate for the maximum benefit of the welfare of children (including how their evidence should be adduced in any civil or criminal court).

David Burrows

[1] I know that at present the inquiry is set up on a discretionary basis (ie not formally under Inquiries Act 2005). Most survivors would, I think, prefer to see the inquiry set up under the 2005 Act.

[2] This is the start date identified by the Jersey inquiry


Questions, 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 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 [2014] EWCA Civ 404 in the Court of Appeal Longmore LJ explained the position as follows:

Consultation on what?

[21] 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 [2014] 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’:

[34] 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 [2009] EWCA Civ 1361 per Dyson LJ at [51]. In R v Secretary of State for Education ex p M [1996] 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 [108] and [112] of the judgment of the Court of Appeal in: R v North and East Devon Health Authority exp Coughlan [2001] QB 213, [1999] EWCA 1871.

The judge then quoted these passages, in particular the following:

[108] 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 [1986] 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…’


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]


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 [2000] 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?


Listening to children: their rights

Child support abuse inquiry, significant harm, domestic violence, domestic abuse: what do words such as ‘abuse’ and ‘harm’ mean? I ask mostly in the context of listening to children (though in passing its pre-Beveridgeian legal aid Act the Tory government allowed itself to be enmired in a squalid debate about legal aid for domestic abuse, or the more domestic serious violence: legal aid was limited to the latter).

By what factors do we judge when harm to, or abuse of, a child demands action; and what are the child’s rights to be heard when harm occurs? First, a reminder of the great sound bite from the Cleveland inquiry ‘the child is a person, not an object of concern’. Children must be listened to for themselves not because they are the subject of some charitable exercise.

This followed on from the words of Lord Scarman – a great judge and very human philosopher – in Gillick v West Norfolk and Wisbech AHA [1986] 1 AC 112, [1985] UKHL 7 (http://www.bailii.org/uk/cases/UKHL/1985/7.html ):

One finds plenty of indications [in the common law] as to the principles governing the law’s approach to parental right and the child’s right to make his or her own decision. Parental rights clearly do exist, and they do not wholly disappear until the age of majority. Parental rights relate to both the person and the property of the child – custody, care, and control of the person and guardianship of the property of the child. But the common law has never treated such rights as sovereign or beyond review and control. Nor has our law ever treated the child as other than a person with capacities and rights recognised by law. The principle of the law, as I shall endeavour to show, is that parental rights are derived from parental duty and exist only so long as they are needed for the protection of the person and property of the child.

That is, parental rights over a child must recede as the child – though still a child – gets older.

The aspirations of Cleveland and Gillick found statutory expression in Children Act 1989. That act specifically said that the ‘wishes and feelings’ of a child of age and understanding must be taken into account (CA 1989 s 1(3)(a)). Another main aim of the Act was to regulate the taking of children into local authority care. A care or supervision order should only be made if a family court considered that the child was suffering, or thought likely to suffer, ‘significant harm’ (CA 1989 s 31(2)).

‘Harm’: the starting point

Meanwhile, what is the meaning of ‘abuse’? Literally it means misuse (or miss-use), a use of something or someone which is outside the norm (ab = Latin for ‘from’). I had a teacher once who told us: ‘You haven’t used a book, till you’ve abused it): ie read it, put pencil notes in the margin and so on. He did not mean to tear up the book, or scribble in pen all over it.

It is a narrow semantic spectrum: ‘abuse’ or ‘harm’. That said, is it not best to start with the minimum concept of ‘harm’ of any sort (ie not ‘significant’ harm) as the relevant terminology for aberrant behaviour towards a child and in the context of when to listen to that child? Abuse of that child may be found to have happened; but any form harm to a child must surely be the minimum for listening? Having listened, the listener must move promptly – and appropriately to the child’s needs, and sensitive to his/her confidentiality – to act to protect and safeguard the child.


Fairness and the inquisitorial inquiry

It seems a bit obvious to say it; but an inquiry inquires. Principles which apply to an inquiry are very similar to those which apply to a judge; but the component which is investigatory, inquisitorial, inquiring – call it what you will – goes beyond what judges do. This note looks at this inquisitorial aspect a little more.

Three fundamental components apply to any inquiry:

  • That it be fair: that is, that it hears all points of view, and that when it considers those points of view it is free from bias
  • That it investigates without favour to anyone all matters which arise during its work
  • That it commands the trust, so far as possible, of all those concerned with the inquiry

Perhaps it need hardly be added: that fairness is a cornerstone of our judicial and administrative system; and that it should be reflected in political life and appointments also.

Fairness and impartiality: freedom from bias

I’ve gone on a lot about ‘impartiality’ and, its opposite, ‘bias’ over the past few days (eg in an open letter to Fiona Woolf, its proposed chair: https://dbfamilylaw.wordpress.com/2014/09/07/csainquiry-open-letter-to-fiona-woolf-on-bias/). Fairness as a fundamental legal principle demands two things: that as a decision-maker (tribunal, judge, panel of inquiry etc) you hear both sides of the case before making up your mind (or as lawyers put it: audi alterem partem); and that in making up your mind you have no bias as between the arguments put to you, or as between the people putting forward the arguments. If you are asked to investigate, there must be no bias in favour of, or against, any person you are investigating.

The job of an inquiry panel – whether it is discretionary (as now set up by the Home Secretary for child sexual abuse issues) or statutory (under Inquiries Act 2005) – is to inquire. Its function is inquisitorial.


It follows from this that an inquiry has a dimension which is absent in a judge or jury’s decision-making. A judge hears two (sometimes more) opposite arguments and has to decide between them. These arguments are put before a court or tribunal by opposing parties: they chose the issues and the judge acts as an arbitrator between them.

An inquiry investigates. Its job goes much further than that of a judge, which is essentially passive. Like a police investigation the inquiry – by definition – must make sure all stones are turned. A judge only hears about and deals with what is put before the court by the parties to the case. An inquiry may have to go further than investigating immediate issues; and then may need to follow up leads which those issues turn up.

The checks against bias must therefore be more rigorous than with a judge in his/her refereeing role. How difficult would it be – for example – for an inquiry member if s/he was required not only to hear from, but then also to have to demand more incriminating information from, a friend, neighbour, political or work colleague?

Trust in the inquiry

Fairness and what it demands (eg in terms of partiality) is a matter of law. The need to investigate is a matter of fact deriving from the terms of reference and subject matter of the inquiry. Does a third dimension apply? In a case where there are individuals whose mistreatment is in issue, surely the Government Minister who sets up the inquiry must be sensitive to the concerns of those individuals?

Broadly people trust judges. They accept they have a professional job to do, and have been appointed to do it. They accept their role – mostly – without undue question. If a court is called upon to decide a complaint or deal with a prosecution then – with a few notable exceptions – the fairness and impartiality of judges is accepted. But where there are serious questions raised for an inquiry by individuals closely involved in it (the clients of the inquiry, for want of another word) their trust in the inquiry panel is surely a factor the minister who sets up the inquiry should take into account in a clear and express way. The independence of a judge is a given. That of a lay chairman or other panel member is not. That affects confidence in the inquiry.

Lord Hutton’s inquiry into the death of David Kelly has been regarded as a whitewash; but that is less because of the character of the judge who conducted it than with the way it was set up, its terms of reference and the way the enquiry was used to prevent a proper inquest. And the Attorney-General – another Government minister – blocked any further progress with that inquiry: eg by reconvening the inquest.

Consequences of impartiality, illegality

If after the event it is found that a judge has not declared an interest, or is found to be biased his/her decision must be set aside. Remember Lord Hoffman, whose wife was a member of Amnesty International and who sat as a judge on the Pinochet case: the decision on Pinochet in the House of Lords was set aside because Lord Hoffman might be biased; or Lady Porter’s unsuccessful attempt to have the council auditor sacked for bias? One adjudication set aside, another upheld.

If a tribunal member is found later to be biased their report probably cannot be set aside; but what does that bias do for public perception of the extent of their investigation or the value of any investigations they put forward?



Cleveland report


The report of the Butler-Sloss inquiry into child abuse in Cleveland (HMSO, Cm 412) was published on 6 July 1988. (A helpful summary of the report from BMJ of 16 July 1988 is at http://www.ncbi.nlm.nih.gov/pmc/articles/PMC1834212/ .) On 21 August 2014 the report of Prof Alexis Jay into child sexual exploitation was published (http://www.rotherham.gov.uk/downloads/file/1407/independent_inquiry_cse_in_rotherham ) and is now the subject of a Commons Committee inquiry.


A discretionary inquiry (ie not under Inquiries Act 2005) has been set up by the Home Secretary on to inquire into child sexual abuse, though in controversial circumstances (see eg https://dbfamilylaw.wordpress.com/2014/09/07/csainquiry-open-letter-to-fiona-woolf-on-bias/ in relation to the role of its proposed chair Fiona Woolf). Its terms of reference are yet to be published.


In a very different part of the same child protection forest, Sir James Munby, President of the Family Division has set up a work group which has issued a modest consultation on dealing with ‘children and vulnerable witnesses’ in court (http://www.judiciary.gov.uk/publications/president-of-the-family-divisions-consultation-interim-report-of-the-children-and-vulnerable-witnesses-working-group-31st-july-2014/ ).  This will be considered separately.


What has changed since 1988?


The Cleveland report was an influential document in the field of child protection and children law; and it was an important factor in the reform plans which lead to Children Act 1989 the following year. One of its more striking recommendations was that children must be treated as individuals not ‘objects of concern’. This attitude developed from another development in child law reform deriving from Gillick v West Norfolk and Wisbech AHA [1986] 1 AC 112, [1985] UKHL 7: that the views of children ‘of age and understanding (Children Act 1989 s 1(3)(a)) must be heard by the courts when their futures and welfare were being considered.


In terms of Rotherham, I suspect, one of the more important legacies of Cleveland is Working Together to Safeguard Children (now in its March 2013 edition:  https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/281368/Working_together_to_safeguard_children.pdf). It is too early yet to say; but it seems highly likely that Working Together (and its demands under Children Act 2004) was not followed in Rotherham. Were its elected members and staff working for the council (as well as local police) aware of Working Together and the 2004, of how it is intended to work and its significance for children in their area? I doubt it.


Is Working Together working?


At this stage we can only pose questions; but any child sexual abuse inquiry – which must surely be chaired by a judge of Supreme Court or Court of Appeal level (as with the recent press inquiry under Lord Justice Levison)? – must address such issues as:


  • Is Working Together working?
  • Are children being listened to: ie not just heard: but is what they say truly acted upon by those whose duty it is to act?
  • How easy is it for children to speak to someone who will listen?
  • Are the police listening properly?
  • How are we safe-guarding children; and making sure it happens?
  • And in court (criminal, family court and other hearings), how is their evidence being dealt with; and how sensitively?


There are many, many more issues (I’ve only jotted down a few that spring to mind immediately)…


No doubt putting right what has gone wrong – and what is still going wrong – will involve resources; but that tawdry argument should not let us overlook children, any abuse they may suffer and their wishes and needs (in that order, especially where they are old enough). Politicians should start by reading what some of those who have suffered are saying now: they must be listened too as well.


Ministerial consultation


It had been niggling away at me over the week-end and as the writhing form of the intended #CSA Inquiry has unfolded over the past three or four days: does the Home Secretary have any duty to consult with survivors when she sets up her inquiry (in whatever legal format that may ultimately be). Any wind in my sails may have been taken away a little, by the fact that it was reported on 21 July 2014 – how reliably, I do not know – that she had already promised to ‘consult’. I doubt she has, in fact done so, so far as appointment of Lady Woolf as chair is concerned; and if she has done so, probably not in any realistic way.


So is there any duty upon her to consult? On a brief reading (so far) I have found no decision on the point in relation to a discretionary inquiry (ie as distinct from a statutory inquiry under Inquiries Act 2005). By definition this is an area very much within ministerial control. However courtesy and the feelings of a number of those involved – the survivors – might have dictated some form of consultation. And, it seems, she promised she would consult. Hers is an administrative decision. It is therefore susceptible to ordinary administrative law: judicial review and so on.


Duty to consult and the common law


Strictly speaking the common law does not require her to consult. However, the tendency of modern government and administration is to do so whenever reasonably possible. The Court of Appeal has considered the point in the last few months. (This was in relation to the closing of a local authority run home; but the principles are broadly the same.) In R (ota LH) v Shropshire Council [2014] EWCA Civ 404 (http://www.bailii.org/ew/cases/EWCA/Civ/2014/404.html) Lord Justice Longmore explained the position as follows:


Consultation on what?

[21] 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.


‘Fairness in consultation’


The role of fairness in consultation is stressed by the leading judicial review text-book by reference to another case, R v North & East Devon HA exp Coughlan [1999] EWCA 1871: http://www.bailii.org/ew/cases/EWCA/Civ/1999/1871.html ) where the Master of the Rolls Lord Woolf said:


[108] 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.


It would always have been courteous of Mrs May to consult, I should have thought. If nothing else it is a modern approach to administrative decisions. If she does not do so on that ground alone there is probably little that those affected can do to challenge her failure.


Was consultation promised?


If she has indeed promised consultation, that may raise different issues about her decision-making and whether Home Office procedures can be reviewed. Lord Woolf said (as quoted above) that if consultation ‘is embarked upon it must be carried out properly’. Was consultation promised? Might it reasonably be expected? What form should consultation on the panel and its terms of reference take then?


Alongside questions about the ‘impartiality’ of her chair, Mrs May might reasonably be expected, please, to answer those three questions.


Dear Lady Woolf


Perceived bias: the law


I write to you as one solicitor to another and as one officer of the Supreme (‘Senior’) Court to another. I am aware of the concerns expressed in the press and other media at your appointment to chair an inquiry on the variety of the long-standing child abuse allegations. I write to you as one solicitor to another to ask you to say what is your side of the story in relation to published allegations about your personal and public relations with individuals who may be required to give evidence; and to ask you to reflect upon whether or not you can be said to be biased in the light of your own contacts and the people who may be inquired into by the panel.


First, I assume you and the Home Secretary consider that you have the ‘necessary expertise’ to conduct this inquiry. Inquiries Act 2005 s 8(1)(a) requires that when a minister appoints, s/he must consider that, ‘as a whole… [an inquiry panel member has] the necessary expertise to undertake the inquiry’.


Inquiries Act 2005


The relevant parts of statute law on which your appointment turns is Inquiries Act 2005 s 9. This I believe can be explained, at common law, by reference to recent Supreme Court authority on the subject of ‘perceived bias’.


I take it as axiomatic that like any judicial or administrative process or inquiry the appointment, and operation of, the inquiry is bound by ordinary common law and other rules of fairness. I start from the assumption that, as stated by Administrative Law (2009) Wade & Forsyth (10th Ed) at page 801: all forms of inquiry have in common is ‘the independence of the person (or persons) who conducts the inquiry and writes the report’


The common law of England and Wales can reasonably said to be summarised in European Convention 1950 Art 6(1) and that this guarantees freedom of bias in any judicial or administrative process; and I assume that an inquiry like this comprises elements of both. Further Inquiries Act 2005 s 9 makes specific provision as to ‘impartiality’ (ie freedom from bias):


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.


In what follows I shall assume that s 9(1)(a) approximates to ‘actual’ bias (as defined below); and that in all other respects normal common and administrative law principles apply (see eg Porter v McGill (orse McGill v Weeks) [2001] UKHL 67, where the challenge of Porter was to a local authority appointed auditor and his inquiry).


Bias at common law


It has been said by the Court of Appeal that judicial impartiality is ‘the fundamental principle of justice, both at common law and under European Convention 1950 Art 6’ (Morrison & Anor v AWG Group Ltd & Anor [2006] EWCA Civ 6, [2006] 1 WLR 1163 per Mummery LJ at para [6]). If it is breached a judge is disqualified from hearing a case. If ‘bias’ – in the technical sense of the term, as considered below – is found then recusal (ie the judge must take him/herself off the case) must follow as a matter of law.


Bias arises where a judge may be said to be unsuitable to try a case because of a personal interest (however remote; and compare this with Inquiries Act 2005 s 9(4) above) in the outcome of the case; or because the judge is in some other way is, or appears to be (appearance of bias may be critical to this, as explained below), unable to form an independent view of the case before the court. Thus bias may arise in two ways:


  • ‘Actual bias’ – That the judge has, as a matter of fact, a personal interest in the outcome of the case; or
  • ‘Perceived or apparent bias’ – for example, because of an expressed point of view or because of the judge’s personal opinion of a matter in issue or a party in the proceedings.


The test for bias of either category is whether the ‘fair-minded and informed observer’ would conclude that there was a real possibility of bias (Lord Hope in Porter v McGill (orse McGill v Weeks) [2001] UKHL 67). In either case bias – in the general sense of the word – may not actually exist.


In the case of ‘actual’ bias it arises automatically on the facts of a case (eg a relationship with a party or witness in the proceedings; or where a judge owns shares in a company involved in the litigation). This may be equivalent to the impartiality required by s 9(1)(b). I shall assume that the Mayor has given sufficient thought (though in truth I wonder) to the question of ‘actual’ bias or s 9(1)(b) impartiality. I shall concentrate on perceived bias.


‘The fair-minded and informed observer’ – perceived bias


The modern test as to whether judicial bias may be present, as applied to civil proceedings, is defined by Lord Hope in Porter v Magill [2008] UKHL 62 and this test can be taken now to be the authoritative distillation of recent case law variants on a similar theme:


The question is whether the fair-minded and informed observer, having considered the facts, would conclude that there was a real possibility that the tribunal was biased.


Since that quote coined the terms the ‘fair-minded and informed observer’ and Lord Hope has  returned to the same ‘relative newcomer’ in the legal lexicon in Helow v Secretary of State for the Home Department and another  ([2008] UKHL 62 where he further explained his use of the term:


[2] The observer who is fair-minded is the sort of person who always reserves judgment on every point until she has seen and fully understood both sides of the argument. She is not unduly sensitive or suspicious… Her approach must not be confused with that of the person who has brought the complaint. The “real possibility” test ensures that there is this measure of detachment. The assumptions that the complainer makes are not to be attributed to the observer unless they can be justified objectively. But she is not complacent either. She knows that fairness requires that a judge must be, and must be seen to be, unbiased. She knows that judges, like anybody else, have their weaknesses. She will not shrink from the conclusion, if it can be justified objectively, that things that they have said or done or associations that they have formed may make it difficult for them to judge the case before them impartially.


Partiality and the informed observer


So how does Lord Hope’s formula in Helow fit with Inquiries Act 2005 s 9? In the final analysis it must be recalled why inquiries are set up under the 2005 Act. Section 1(1) provides:


1 Power to establish inquiry

(1)A Minister may cause an inquiry to be held under this Act in relation to a case where it appears to him that—

(a)particular events have caused, or are capable of causing, public concern, or

(b)there is public concern that particular events may have occurred.


I would suggest to you, Lady Woolf, that this requires a particularly high duty on you and the Minister. Further you must both have careful regard for the variety of ‘informed observers’ and commentators; and that you examine very carefully your standing in terms of that high duty given the reasons for and the background to the inquiry. Perhaps you should, as quickly as possible, make public your thoughts on Inquiries Act 2005 s 9.


I cannot be an ‘informed observer’ yet: I have not heard your side of the story (para [2] or Helow above). I do hope we shall all hear your side very soon. Then we the observer can consider how s 9 applies to you and whether in common law you can be regarded as biased in your proposed role.


 Listening to children and other protected individuals: a family court response


In parallel with all the press and political furore over setting up a child sex abuse inquiry and the Rotherham cover-up, the Judicial and Tribunals Office have issued a consultation paper from the Children and Vulnerable Witness Working Group entitled an Interim Report and dated 31 July 2014 (http://www.judiciary.gov.uk/publications/president-of-the-family-divisions-consultation-interim-report-of-the-children-and-vulnerable-witnesses-working-group-31st-july-2014/). The group seems to be part of the personal fiefdom of Sir James Munby P and was set up by him following one of his musings (12th View from the President’s Chambers) of 4 June 2014.


The working group (‘WG’) has met once, and seeks responses to its ‘proposals and initial recommendations’ by 3 October 2014. It proposes a rule change – yes, one procedural rule. Yet this is a much larger subject than one rule will resolve; and part of a massive political, legal and sociological subject demanding co-ordinated thinking between criminal, civil and administrative tribunals alongside family proceedings. It is only the civil and family courts aspect of it which the WG is considering. Ultimately the whole topic needs co-ordination with other departments dealing with protected individuals; and with any child abuse inquiry which may be set up. It may be an incremental process; but it needs some clarity of intent, to be based on some form of policy or philosophy.


Proposals and initial recommendations


The working group has put forward a number of ‘proposals and initial recommendations’. In summary these are:


  • There should be a new ‘mandatory [when are rules voluntary?] rule’ for ‘children and vulnerable witnesses and parties’ with practice direction and guidance to be ‘inserted’ in FPR 2010 as soon as possible (13(ii) and (iv)). This is to be drafted by the WG with the Family Justice Council (‘FJC’) (13(xvi)) (not with Family Procedure Rules Committee, which was appointed by Parliament to do this job).
  • Paras 13(vii)-(x) require advocates and litigants in person to identify ‘vulnerable’ parties etc
  • A practice direction for FJC guidance (it is not clear what constitutional role the WG envisages for FJC) to judges is recommended (13(xi); and the status of judicial discussions which children should be clarified (13(xii)) says the group.
  • Special measure should be made for vulnerable witnesses; and ‘the rule’ should contain details as set out in paras 13(xiii) and (xiv).
  • There should be training for judges and advocates (13(xvii)-(xix)) and ‘as part of the (sic) tool-kit’ (what ‘tool-kit’; and whatever that term is intended to mean in context).


This is the limit of what is proposed by the group. I now suggest a number of other headings which should be addressed by the WG, and only – in this context – to vulnerable individuals involved in civil and family proceedings. The wider issues thrown up by modern concerns about the treatment of abused individuals in a variety of contexts – listening to children and others concerned (at whatever stage in their lives), their treatment by public authorities (children’s departments, police, schools and courts), involvement of victims in court prosecutions, child welfare informants etc – needs further, detailed – and urgent – consideration.


Given a canvas limited to court proceedings – and mostly to civil and family proceedings at that – to what should immediate reforms be addressed? At this stage notes only follow. It is a subject which needs urgently to be developed alongside all the other issues which public authority neglect and political inertia are throwing up in relation to abused children and their treatment by public authorities.


Protected individuals in civil proceedings


First the title is too restricted. The group of individuals covered by the reforms is much wider. Parties, witnesses and all others involved in civil proceedings who might fairly be regarded as vulnerable – I would propose ‘in need of’, or ‘deserving,’ ‘protected status’ – should be the main part of the reforms. I have therefore proposed the slightly clunky working title of ‘protected individuals’: it gets away from ‘witness’ and ‘party’ which implies only court process. It is important to be clear that the information which is provided by a protected individual may not necessarily be for use in court proceedings.


The reforms must consider the special position of individuals (who may later become witnesses) who require protection in other circumstances: for example, because of their relationship with one of the parties (eg parent or child in cases of abuse by a party), because of their capacity (Mental Capacity Act 2005) or because they are child welfare informers (as with the case of X in Re A (A Child) [2012] UKSC 60 and later Re J (A Child) [2014] EWCA Civ 875).


Information from protected individuals


To what information – to use a neutral term – is this consultation addressed? What forms of information are involved; from whom that information will come; how may that information be employed; and by whom and how in court proceedings? Information which is collected from protected individuals, or where they give evidence in court and are entitled to protection, will include:


  • Information which vulnerable individuals (including children) may wish to give to children’s department social workers, schools, police etc), quite separate from court proceedings (at this stage)
  • Information and views which children who are the subject to proceedings may want to provide to the court: eg talking to the judge
  • Evidence which children as parties wish to give to the court
  • Protection for ‘vulnerable’ parties (eg parents and children who allege abuse by a party, where that party may have a right to cross-examine them)


Protection for whom?


Court proceedings which might involve a protected individual in any conceivable role – party, witness, subject (and talking to the judge) – include:


  • Children who take their own CA 1989 Part 2 proceedings and in their own right (with permission from the court as appropriate)
  • Children proceedings where the child is the subject of the case (ie the case is about the child and his/her family): either because parents are seeking an order in respect of the child (Children Act 1989 Part 2 (‘child arrangements’) or Part 4 and 5 (care etc)
  • Women (it will almost invariably be women) who have been abused (or allegedly abused) by a partner or other individual involved in the proceedings
  • Children who are accommodated by a local authority (CA 1989 Part 3) and may be involved in eg judicial review proceedings in relation to their care
  • Children who may be called as a witness in proceedings
  • A child or adult in any civil (including family) proceedings lacks capacity (Mental Capacity Act 2005)
  • A protected individual (as with X in Re J (A Child) [2014] EWCA Civ 875) is required to give evidence in any of the above proceedings and to be cross-examined or to give evidence in front of an alleged abuser


Protected individuals: context of their information and evidence


Extensive procedural changes are needed, and more understanding of the variety of facets which the question of protected parties’ evidence presents. This needs at least a review and a clear definition of the primary law and the court proceedings to which procedural changes might apply. The involvement of protected parties will span their first involvement either with a public authority; or with the courts where, as the subject of private proceedings, they may wish to – or be asked to – give their views as children of age and understanding.


As much flexibility as possible needs to be built into the system, so that where there is evidence it must be available to the court – even though not, in purist terms by a means which accords with every rule of procedural fairness (eg hearsay rules may need to be overridden, opportunities for cross examination reduced or constructed so that the court deals with appropriate questions from a party). A purist approach to the requirements of a fair trial may need to be sacrificed to child welfare.


This will need much more than a single ‘rule’. The role of obtaining child information for a court process needs well developed rules; the position of a judge talking to a child who wants to talk to the court needs a clear structure; and the special status of child welfare informers cries out for proper definition. Some of this may need primary legislation (the Children and Families Act 2014 was such a damp squib for family court reformers).


Child protection inquiry and reform


And this – the position of protected individuals and their evidence – is only a small part the law reform called for in this area. What happened in Rotherham, and in other parts of society, in the abuse of children and young women; what is happening with state interference with parental ties (ie is adoption really still necessary?); how children and other witnesses should be heard in the criminal courts; and how should children be heard and listened to by the courts: all this needs to be linked, but not delayed, in a process of child protection inquiry and reform.