Why a statutory inquiry?

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

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

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

Open justice principle

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

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

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

17Evidence and procedure

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

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

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

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

‘Interested party’

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

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

Freezing or possession orders

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

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

Legal sources

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

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


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.