RIGHT TO A FAIR INQUIRY: A HUMAN RIGHT?

European Convention 1950: ‘right to a fair trial’

‘Rights’ have been in the news recently, especially with Tory plans to repeal the Human Rights Act 1998. As explained at https://dbfamilylaw.wordpress.com/2014/10/05/human-rights-act-1998-and-english-law-part-ii/ the vast majority of rights protected by the European Convention 1950 are protected also by the English common law. Art 6(1) of the Convention protects the ‘right to a fair trial’; or, the corollary, it gives freedom from injustice. This right and its associated components – such as a trial in open court, advice privilege, freedom from bias, and duties of disclosure of documents – have been well-known to the common law for centuries. For most routine areas of court work the concept of a fair trial is uncontroversial. A person must have (1) notice of the case against him/her. The judge must be (2) entirely free from bias and (3) s/he must hear both sides of the argument before delivering a public judgement.

But supposing that A is someone concerned in the process of a public inquiry and wishes to say that an inquiry panel member is not impartial (‘biased’ in the technical legal sense: in A’s reasonably held opinion); or A wishes to say that s/he is personally affected by the decision-making process of a parole board in the release of someone convicted of sexual abuse on A; or A has evidence to show that a person is inappropriate to work in a school with young children? Does A have the right to challenge any of the appointments concerned; and if so on what grounds and how?

Article 6(1): ‘civil rights’

The relevant part of Art 6(1) reads:

6          Right to a fair trial

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. Judgment shall be pronounced publicly…

So what is a ‘civil right’ (other than one where a person can use ordinary court proceedings)? Its definition first depends on the end result being that a public body decision-maker is required to make some form of judicial or quasi-judicial decision. Many administrative decisions have a judicial quality; and in such a  case the decision-maker must act in a quasi-judicial way: free from bias and hearing both sides of any argument. S/he must take into account all matters relevant to the decision, and not take into account irrelevant matters; and s/he must act within statutory powers provided to, and according to procedures required to be followed by, the public body.

But where do rights available under administrative law (eg to be consulted; to receive reasons (or not) for a decision and so on) shade into rights which are ‘civil rights’ to be protected by a fair trial under Art 6(1)?

Personal interest

The starting point must be the extent of the personal interest which A (in the examples above) has in the outcome of the decision. What is the decision challenged and to what extent is A affected directly by it?

By this criterion the victim of child sexual abuse who is still alive when her abuser is being considered for parole has a direct personal interest in the outcome of the parole board’s decision-making. If the abuser may return to live near her or her family then she may have real, and justified, anxieties about what he may do, as may her family. It would be thought that she should be heard as to his explanation for parole being appropriate after he has presented his case. It could plausibly be argued that she has a civil right so to be heard. More research is needed as to the extent of that right. Research will probably find that rights are limited, as the law now stands.

At the other end of the spectrum is the person concerned at appointment of an individual (B) who may be an alleged abuser, though not convicted. His/her information should be passed to the school appointing B. It is difficult to see how this duty (so far as it is a ‘duty’) to provide information can be converted to an actionable ‘right’; save perhaps where A has – or will have – a child at the school. (On a separate point, if a person plans to give information to a public body which is confidential they must be careful how they go about it (R (H and L) v A City Council [2011] EWCA Civ 403: disclosure of confidential information by police to a local authority who passed on that information inappropriately and in breach of confidence to others).

Spectrum of personal interest

In between these two ends of the spectrum is the person who wants to object to the format or terms of reference of an inquiry. Provided that that person (A) can show ‘sufficient interest’ (Senior Courts Act 1981 s 31(3); or that she is a ‘victim of an unlawful act’: Human Rights Act 1998 s 7(1)) in the inquiry’s proceedings and if a right is in issue, then A can apply for judicial review of decisions in relation to the setting up of the inquiry.

In R (ota Howard and anor) v Secretary of State for Health [2002] EWHC 396 (Admin), Scott Baker J and R (ota Persey and ors) v Secretary of State for Environment, Food and Rural Affairs [2002] EWHC 371 (Admin), Divisional Court (Simon Brown LJ and Scott Baker J) (judgment was given on the same day, 15 February 2002), applicant sought review of decisions to hold a private, not public, inquiry in each case (Howard: widespread abuse of patients by two doctors; Persey: inquiry following the foot and mouth epidemic). The challenge was based on the rights to freedom of expression under Art 10. Both applications were refused.

In neither was there any suggestion that the challenge to the setting up of the inquiry was impermissible; but in these two cases the claims were framed under Art 10. If there is an assertion that the decision-making qualities of the inquiry chairman may be unlawful because of a perceived bias, that should – in logic – be capable of judicial review challenge. In the analogous case of a judge in court proceedings, the party who wishes to assert the judge’s bias can apply to the judge and ask him/her to recuse him/herself (come off the case). How can this be done in the case of an inquiry where the panel is chosen by the Secretary of State concerned and there are no court proceedings in existence; nor will there be?

The law in the case of an inquiry is much the same as the common law (I explained this in eg https://dbfamilylaw.wordpress.com/2014/09/06/reflections-on-law-of-bias/ and https://dbfamilylaw.wordpress.com/2014/09/07/csainquiry-open-letter-to-fiona-woolf-on-bias/). Inquiries Act 2005 s 9 deals with the question of bias – otherwise freedom from impartiality – as follows:

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.

If bias can be challenged in a judge as a matter of guarantee to a fair trial, it must – in logic – be the case that it can be challenged by judicial review. A has a basis for application to the Admin Court to test, in front of a High Court judge, the bias of a panel chairman or member. At present it is not clear from any known existing case law, that law will follow logic. It remains for A to test the logic in law; and to test the ‘fair’-ness of a panel appointment in terms of Art 6(1).

Lawfulness of the decision

If this can be done, then it will be for the Admin Court – to which a judicial review application is made – to assess the information available to the Secretary of State. The court will consider whether – in terms of bias, or lack of impartiality – the decision to appoint was lawful. Thus, for example, in the two cases cited above the court had sympathy with the applicants who wished to have the enquiry made open to the public; but there was no basis on which the judges could fault the legitimate exercise of the discretion of the Secretary of State in each case. They were not prepared to say that the decision of the Secretary of State was unlawful.

‘Bias’ goes to the root of a fair trial; and to the root of a fair disposal of an inquiry’s work (and see Inquiries Act 2005 s 9 above). If as a matter of law, bias is found to exist (actual or perceived), it is difficult to see how the court could not intervene on judicial review to quash the Secretary of State’s decision to appoint the person found to be biased.

#CSAINQUIRY: RIGHTS AND THE CHILD SEX ABUSE INQUIRY

Introduction: ‘a law to stop this…’

‘There must be a law to stop this’ you said angrily.

‘Meaning?’

‘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]

‘BIAS’ AND FREEDOM OF INFORMATION

A right to know?

This note seeks to answer the question: can a private individual request disclosure of information in relation to an inquiry set up by a Government minister. Specifically can a member of the public insist on disclosure of information as to the qualifications and impartiality of an inquiry panel member to take on the job? Can a member of the public in any way challenge the bias (‘bias’ is a technical legal term in this context already explained in https://dbfamilylaw.wordpress.com/2014/09/07/csainquiry-open-letter-to-fiona-woolf-on-bias/: specifically there in the context of Mrs Fiona Woolf’s appointment to chair a child abuse inquiry) – or possible bias – of a panel member? Can that person see relevant information as to what is known by a Government department of a panel member?

The short answer is that probably a member of the public is entitled to this information under general principles in Freedom of Information Act 2000 s 1(1):

1 General right of access to information held by public authorities.

(1)Any person making a request for information to a public authority is entitled—

(a)to be informed in writing by the public authority whether it holds information of the description specified in the request, and

(b)if that is the case, to have that information communicated to him.

That said, the law on inquiries is not as clear as it might be. I will concentrate here on a discretionary inquiry set up by a minister; but I shall say that for disclosure purposes common law rules for a discretionary inquiry are much the same as those set out for statutory inquiries under Inquiries Act 2005 are much the same.

Freedom of Information Act 2000: Kennedy

The question of the extent to which information can be compelled to be produced by a public body was considered by the Supreme Court recently in Kennedy v The Charity Commission [2014] UKSC 20 (http://www.bailii.org/uk/cases/UKSC/2014/20.html). A journalist, Mr Kennedy, had asked under FOIA 2000 for information from the Charity Commission on George Galloway’s Miriam charity. His request had been refused. The Commission successfully argued – in that particular case – that their refusal was covered by the exemption in FOIA 2000 s 32(2).

The Supreme Court, in agreeing with the Charity Commission (on a 5-2 majority), considered fully the law on openness of public bodies; and, incidentally, the extent to which this was governed by the common law. European Convention 1950 law was only relevant where it diverges from domestic law (as eg in the case of privacy).

Judicial body: the ‘open justice principle’

There is no doubt that judicial processes must be open (subject to certain narrow exceptions: see eg https://dbfamilylaw.wordpress.com/2014/09/01/family-laws-shakey-hold-on-the-common-law/). Lord Toulson summarised his view of the law in this area at paras [110]-[140]. He and the court as a whole take their starting point from his judgement in R (ota Guardian News and Media Ltd) v City of Westminster Magistrates’ Court [2012] EWCA Civ 420:

[69] The open justice principle is a constitutional principle to be found not in a written text but in the common law. It is for the courts to determine its requirements, subject to any statutory provision. It follows that the courts have an inherent jurisdiction to determine how the principle should be applied.

Any secrecy by a court as to information held by it (the Guardian wanted to see papers read by a magistrates’ court district judge: and so they should said the Court of Appeal) must be justified either by statute, or – as in the Guardian case – by common law principles. Each case depends on its facts (Lord Toulson: para [113]); but denial of access must be justified:

[114] There may be many reasons why public access to certain information about the court proceedings should be denied, limited or postponed. The information may be confidential; it may relate to a person with a particular vulnerability; its disclosure might impede the judicial process; it may concern allegations against other persons which have not been explored and could be potentially damaging to them; it may be of such peripheral, if any, relevance to the judicial process that it would be disproportionate to require its disclosure; and these are only a few examples.

If parliament is to make an exception to common law rules, especially in relation to a fundamental right, it must do so expressly and clearly (R v Secretary of State for the Home Department, exp Simms [1999] UKHL 33), as it has done in the case of children proceedings (Administration of Justice Act 1960 s 12; and see FOIA 2000 s 32, which exempts court records). If open justice is to be inhibited it must be by the common law or specific statutory exception.

But does this rule apply to inquiries? Lord Toulson considered the definition of ‘inquiry’ in FOIA 2000 s 32(4)(c) namely ‘(c) … any inquiry or hearing held under any provision contained in, or made under, an enactment’. This definition does not include a discretionary inquiry; but there is no reason why the law should treat disclosure in respect of such inquiries differently. So, said Lord Toulson, as far as inquiries are concerned:

[124] The considerations which underlie the open justice principle in relation to judicial proceedings apply also to those charged by Parliament with responsibility for conducting quasi-judicial inquiries and hearings. How is an unenlightened public to have confidence that the responsibilities for conducting quasi-judicial inquiries are properly discharged?

Speaking for all his fellow Supreme Court Justice, he went on: ‘… information about statutory inquiries should be available to the public, unless there are reasons to the contrary’ (para [130]). Disclosure of information was determined entirely by the ‘public interest’:

[129] The power of disclosure of information about a statutory inquiry by the responsible public authority must be exercised in the public interest. It is not therefore necessary to look for a particular statutory requirement of disclosure. Rather, the question in any particular case is whether there is good reason for not allowing public access to information which would provide enlightenment about the process of the inquiry and reasons for the outcome of the inquiry.

‘Process of the inquiry’: information as to expertise and impartiality

If challenged a judge must justify his/her ‘bias’, or possibility of partiality. Is anyone chairing or empanelled for an inquiry in any different position? The rule against bias is one of the cardinal rules of administrative, as it is of civil, law. A statutory panel member is required to be impartial. Inquiries Act 2005 s 9 imposes on the minister who appoints a statutory inquiry the following duty:

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.


A leading textbook in this area – Administrative Law (2009) Wade & Forsyth (10th Ed) – would say that this provision is redundant. It represents the common law. There is no reason therefore why a discretionary inquiry should not be the same as a judge, in terms of a minister being satisfied as to ‘bias’ in an inquiry panel member. It is for a minister to ‘satisfy’ him/herself on this account. There is plainly a public interest in knowing – by disclosure of information – that this has been done properly and on the basis of full information.

Much the same goes for a panel member’s ‘expertise’, and the public interest in knowledge on that score. Inquiries Act 2005 s 8(1)(a) states that, in appointment of a panel member, ‘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’.

Confidential information

Finally, to what extent can a minister claim ‘confidentiality’: that information about expertise and bias/impartiality is confidential? FOIA 2000 deals with the question:

41Information provided in confidence.

(1)Information is exempt information if—

(a)it was obtained by the public authority from any other person (including another public authority), and

(b)the disclosure of the information to the public (otherwise than under this Act) by the public authority holding it would constitute a breach of confidence actionable by that or any other person.

(2)The duty to confirm or deny does not arise if, or to the extent that, the confirmation or denial that would have to be given to comply with section 1(1)(a) would (apart from this Act) constitute an actionable breach of confidence.

It must always be recalled that confidentiality is a question for protecting the information of the confidor. By definition, in the case of panel member, the information is no longer private (ie belonging to the individual alone: here it has been passed to the minister). The information is available – or should be – to a Government department.

Open information as to bias

A judge whose bias – actual or ‘perceived’ – is challenged by a party to litigation must justify his/her lack of bias in open court, or must recuse /him/herself (ie take him/herself off the case; see eg Magill v Weeks (orse Porter v Magill) [2002] 2 AC 357, [2001] UKHL 67). Inquiries are judicial or semi-judicial in the same way as is the court process, so that information as to inquiries must be public (Kennedy at paras [124] and [130]: see above). There is no reason in principle why information as to a panel member should not be as open to the public as is a judge’s defence of any party’s challenge to his/her bias.

AN INQUIRY INQUIRES

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.

Investigation

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?

‘WORKING TOGETHER’: CLEVELAND AND ROTHERHAM

 

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.

#CSAINQUIRY: CONSULTATION AND THE HOME SECRETARY

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.