A judge-led inquiry?

Fortunately, the consensus in favour of the child abuse inquiry being statutory with powers to compel the production of documents and the attendance of witnesses and the power to take evidence under oath appears to have spread to Theresa May. She has indicated before the Home Affairs Select Committee that she now favours a statutory inquiry, and the weekend before Christmas wrote to the panel giving them notice of imminent changes to the inquiry.

But this still leaves open the question of who should run the inquiry. There's been a lot of discussion on this point and some of it has got a bit heated. The first thing we need to get past is the issue of whether "establishment" membership is of itself a bar to running the inquiry.

There are those who say that anybody in the "establishment" is by definition unacceptable, because this would mean the establishment is investigating itself. Depending on how widely you define the establishment, this would rule out every judge in the land, probably just about every lawyer (on the basis that they have all met judges) and possibly everybody who has ever visited Parliament for any reason. I can understand the distrust of those who feel that way, but I think that there is danger of throwing out the baby with the bathwater here.

There are at least some MPs who have been pressing for an inquiry. I think it certain that a considerable proportion of the members of the establishment (no matter how you choose to define it) are as disgusted as ordinary members of the public about what is being discovered about child sex abuse. They are just as disgusted as you and I are for instance at the words of Tim Fortescue about how the whips might help MPs with problems about "small boys".

Also, its not actually the job of the inquiry to look into who did what to whom at Elm Guest House or Dolphin Square. That's the job of the police, and they are working at it. How those two scandals were covered up will be part of the inquiry, but only a very small part. Organised and institutional abuse has been going on in far more places than those two, so Elm Guest House and Dolphin Square will form only a very small part of the overall inquiry. There are lots more failures in lots of other places which the inquiry will have to look into.

The point I'm making is that while undoubtedly there are abusers within the establishment (just as there are abusers in all walks of life) not all the establishment should be assumed to be complicit. There are honest people among them if we are prepared to find them, and they will have far more to do than talk to Leon Brittan about lost dossiers.

Baroness Butler Sloss has been on air today talking about the inquiry. She is still confident she could have done a good job. The problem is that with her brother having been Attorney General at the time key events occurred, the probability is that she would have to investigate his actions for incompetence or even wrongdoing. If she had continued and gone on to criticise him in her report, then all would have been well in terms of perceptions of her impartiality. But suppose that she investigated and concluded he had done nothing wrong, and had acted competently and correctly in all ways? Would the public be prepared to believe that was really true, or would they suspect that she had covered up for her brother? That suspicion would be sufficiently widespread as to damage confidence in the report as a whole

So let's look through the existing options.

One option is to convert the inquiry to a statutory inquiry with the existing panel, select a chair from among them, and let them get on with it. There is undoubtedly useful experience within the panel and I believe they have much they can contribute. There are a few problems with this approach.

The first problem is that the existing panel was selected by the non-transparent process which led to the fiascos of the Butler-Sloss and Woolf resignations. It is clear that due diligence wasn't done on either of those two candidates, and it follows that due diligence probably also wasn't done on the rest of the panel. So there is going to be a confidence and credibility gap in the minds of a substantial minority of the survivors.

The second problem is that one or two of the panel members have got themselves into unseemly public spats with survivors. No matter who is principally to blame for these, the fact is that we need the panel members to be sufficiently disciplined not to rise to any kind of provocation and to get on with the job. Hopefully everybody has learned their lesson and it won't get repeated, but if there is any doubt about it, some people will have to go.

The third problem is to question whether any of the existing panel members has sufficient stature to stare down unco-operative witnesses and extract useful evidence from them, and whether the panel has enough stature to have its recommendations accepted by government, and indeed whether a panel approach, needing consensus or at least majority support, would be able to be sufficiently decisive to make the kinds of radical recommendations that may be needed.

The second option is to dismiss the panel and appoint a new person to run the inquiry. That would have certain advantages. The person would not be limited to only putting forward recommendations which had the support of a majority of colleagues. The disadvantage is that there is useful experience in the panel and it would be a pity to throw it all away.

A third option would be to appoint a single person, but to re-appoint most of the panel as "Assessors", i.e. as advisors to the chair. An advisory board of this kind would be able to assist the chair, but would not have the disadvantage of requiring majority support for recommendations. This is the option I favour.

The question then is who the new chair should be. There are a number of separate criteria that need to be considered here.

1. Needs to have the respect of all but the most anti-establishment survivors. 
2. Needs to know enough about how inquiries work to be able to effectively wield the powers of a statutory inquiry, and so get the evidence needed for informed recommendations.
3. Needs to have experience of abuse, its effects on victims, and on administrative arrangements designed to minimise it.
4. Needs to have sufficient stature that radical recommendations will get taken seriously by government and other bodies when the report is issued.

I think a bit of expansion is needed in respect of point 3. In my view, it is not enough to have prosecuted, defended or acted as a judge in criminal cases where the defendant was charged with child abuse crimes. We already know that abusers ought not to abuse, this is trivially true. The inquiry will be looking into why non-abusers didn't take evidence of abuse seriously, and so let abusers get away with it. In doing so, these non-abusers have mostly not committed any crime.

The inquiry is going to have to look at institution procedures, organisational cultures, how and why people don't feel able to come forward with concerns, and what needs to be done to change this. So we will need somebody who has been involved in this aspect of child protection.

A small-scale example of how not to do such an inquiry is Lord Carlile's inquiry into Ealing Abbey and St Benedict's School. Lord Carlile had previosuly prosecuted and defended child abuse cases. His report included some very sonorous phrases about who was to blame, but didn't do much more that was any use. The only recommendations on child protection that he included in his report were ones that had already been made by other bodies. His only new recommendation was a reform of governance arrangements. While was a good idea in general terms, it didn't get to the root of why abuse had gone unreported for decades. He included in his report a new version of the school's safeguarding policy, which he said was as good as anywhere else in the country, but which still allowed the school the means to avoid reporting abuse in a wide range of circumstances. In other words, Carlile didn't achieve much. For the national inquiry we need far more.

So who would fit the bill? Well, any reasonably experienced judge would meet requirement 2 above. I think a judge is needed rather than a QC, because judges have been trained to judge things, whereas QCs are trained to be advocates. Most judges were QCs before they became judges, so if QC skills are also needed, then any likely judge candidate will have them.

Requirement 3 narrows the field somewhat. To meet this requirement, we need a judge with experience of Family Division, where decisions concerning the welfare of abused children get made.

Requirement 4 basically requires that the judge be sufficiently senior that he or she will be taken seriously be government, whichever party is in power by the time the inquiry issues its report. I suggest that means an Appeal Court or Supreme Court judge.

That leaves Requirement 1, the confidence of the survivors. For that to be achieved, whoever is appointed has not got to have close links to those whose actions are inevitably going to be closely scrutinised, and in addition the judge's record would need to include a significant number of decisions which went against the "establishment", so that there is evidence that he or she is prepared to act against the establishment when the facts require it.

Who would meet all these criteria? I don't follow judicial appointments, so I'm not in a position to suggest names. Others should be in a position to know whether any particular person meets all these criteria described. I accept that the field is fairly narrow, there are not that many people in the entire country who have the necessary knowledge and experience. But I think that the number of possible candidates who meet all these requirements is greater than zero, and we can therefore move on and finally set this inquiry in motion.

Child sex abuse inquiry Terms of Reference

I thought it might be worthwhile to have a look at the Terms of Reference of the Child Sex Abuse Inquiry and see what it actually says.

It starts with a paragraph titled "Purpose", as follows.

To consider the extent to which State and non-State institutions have failed in their duty of care to protect children from sexual abuse and exploitation; to consider the extent to which those failings have since been addressed; to identify further action needed to address any failings identified; and to publish a report with recommendations.

I'm concerned about the term "duty of care". Are we talking of a legal duty here, or a moral one? If a legal duty, then does this mean the inquiry should not comment on cases where the absence of a legal duty meant (for instance) that abuse went unreported? Does it mean that the inquiry should not make recommendations regarding changes in the law? Inclusion of the phrase makes these things very unclear.

I would remove "in their duty of care" from the first part of the sentence. It stands perfectly well without it, and is in fact clearer as a result. "To consider the extent to which State and non-State institutions have failed to protect children from sexual abuse and exploitation".

It is unfortunate that only sexual abuse is being considered. Other forms of abuse often also accompany sexual abuse, and we have found (for instance in the case of the death of Daniel Pelka) that institutions can thoroughly fail to detect and respond to cases of abuses of other kinds. It seems to me that the institutional responses necessary to detect and act on evidence of abuse are much the same irrespective of the kinds of abuse involved. If we are having trouble tackling sexual abuse, I suspect the issues of neglect might be even worse.

If we want to address the limitation to only sexual abuse, then we could alter the first part of the sentence further, as follows: "To consider the extent to which State and non-State institutions have failed to protect children from abuse and exploitation".

The first paragraph is actually the primary part of it. Everything else looks to be supplementary descriptive material on how the inquiry will go about its business.

After the initial paragraph of the purpose is the phrase "In doing so to:" and then a list of bullet points. Let's go through them one by one.

• consider all the information which is available from the various published and unpublished reviews, court cases, investigations etc. (hereinafter “the reports”) which have so far concluded;

They have a lot of paper to look through. There's a long history here.

• consider whether such institutions failed to identify such abuse and/or whether there was otherwise an inappropriate institutional response to allegations of child abuse and/or whether there were ineffective child protection procedures in place;

This is very important and very good. This doesn't just deal with active cover-ups (though it certainly includes them) but also addresses cases where through lack of training and awareness or just because of plain disbelief, available evidence was either not recognised for what it was or not properly acted on.

• advise on any further action needed to address any institutional gaps or failings within our current child protection systems on the basis of the findings and lessons learnt from these reports;

Oh dear. In context, the previous bullet doesn't now look nearly so good. They are only to advise on action needed in the context of "the reports". This is the only source of information that has been mentioned. Very specifically, the terms of reference make no mention at all of the inquiry being permitted to seek out any other sources of information, such as testimony from survivors of abuse. It very much looks as if this is a "paper-only" inquiry, and given the single source of information listed this is in fact a "review of reviews". The inquiry is not going to get anywhere at all with such a narrow remit. It is also going to be a sore disappointment to the survivors if the inquiry does in fact stick to its terms of reference and exclude survivor testimony. This is not the "once in a lifetime opportunity" (to use Theresa May's words) to get to the bottom of this problem.

• disclose, where appropriate and in line with security and data protection protocols, any documents which were considered as part of the inquiry; and

Notice again that we are talking only of documents, not of testimony or any other forms of evidence.

• publish a report with recommendations.

Repeats the first sentence of the Terms of Reference. The document has clearly not been drafted by the Home Office but rather by the Department of Redundancy Department.

Then we come to the Scope, The first part of the scope is an illustrative (but not exhaustive) list of "State and non-State institutions" the inquiry may wish to look into.

• Government departments, Parliament and Ministers;
• Police, prosecuting authorities, schools including private and state-funded boarding and day schools, Local Authorities including care homes and children’s services, health services, prisons/secure estates;
• Churches and other religious denominations and organisations;
• Political Parties;
• The Armed Services.

That's not bad, that's a fairly comprehensive list, and it is clear from the context that the inquiry can look elsewhere as well if it wants.

The next item in the scope is as follows:

The Inquiry Panel will cover England and Wales. Should the Inquiry Panel identify any material relating to the devolved administrations, it will be passed to the relevant authorities;

This I know has already caused concerns. There are major scandals in Scotland (e.g. Fort Augustus Abbey) and Northern Ireland (e.g. Kincora) which are therefore excluded from the scope of the inquiry. Survivors from Scotland and Northern Ireland are understandably going to feel very left out and betrayed by this limitation.

It is also a fact that abusers don't observe administrative or even national boundaries when abusing, and so it is entirely possible that there are links between locations inside and outside England and Wales. With this geographical limitation, it may be hard to follow these up.

The Inquiry Panel will consider these matters from 1970 to the present. However, the Inquiry Panel may be presented with evidence that will lead it to conclude that this timeframe should be extended further;

Many survivors are unhappy with this temporal limitation. There are whose who were abused in the 1960s or even earlier who want the opportunity to give evidence. If evidence of earlier abuse comes to light, it is not clear from the terms of reference whether the panel can extend the temporal limit unilaterally or whether they would have to go back to the Home Secretary for permission. I rather suspect that they will have to ask the Home Secretary, since if they could extend the limit unilaterally, there would be no point in mentioning a limit in the first place.

This, along with Theresa May's suggestion that the inquiry could later be converted into a statutory inquiry if the chair requests gives the impression of the whole thing not having been fully thought through. There's no point in putting limits on what the inquiry can look into if you already anticipate that the limits may be inappropriate.

The Inquiry will not address allegations relating to events in the Overseas Territories or Crown Dependencies. However, any such allegations received by the Panel will be referred to the relevant law enforcement bodies in those jurisdictions;

And there goes another major scandal that can't be looked into by the inquiry, the alleged abuses at Haut de la Garenne children's home in Jersey. That's three major scandals that the inquiry can't look into. No wonder some people are thinking that the inquiry is being designed carefully to find out as little as possible.

For the purposes of this Inquiry “child” means anyone under the age of 18. However, the panel will consider abuse of individuals over the age of 18, if that abuse started when the individual was a minor.

That's a fairly obvious statement.

The next part of the Terms of Reference is a list of "Principles". Here's the first.

The Inquiry Panel will have full access to all the material it seeks, unless there is a statutory impediment to it doing so;

This is a big problem. In fact there are several big problems with this.

First, if we look back the the Purpose section, it seems that the inquiry is supposed only to be looking at past reports that are already in the public domain, and no other sources of evidence are mentioned. If that is the case, then this point is somewhat redundant. There can't be a statutory impediment to looking at information that has already been made public.

But if the panel is able to look at other sources of information, then this sentence becomes a tautology. They can look at anything except the things legally they can't look at. Well, that's obvious, and to mention it here makes it seem that the panel and the public are having their noses rubbed in it concerning how limited this inquiry is supposed to be. No wonder there are people boycotting the discussions about the inquiry.

The "statutory impediment" will in fact keep an awful lot of information from the inquiry. A non-statutory panel inquiry has no powers to require the production of documents from any organisation (state or non-state) which chooses not to co-operate with the panel. We already know how difficult it is to get documents out of State organisations where failure or wrongdoing is suspected - just look at the trouble Alexis Jay had getting the documents she wanted out of Rotherham Council.

But it gets worse when you consider non-state institutions. It is vanishingly unlikely that any independent school where abuse has occurred will be willing to co-operate, for the same reason that persuaded them to cover up the abuse at the time - they don't want the damage to their reputation. An article by Andrew Norfolk of the Times earlier this year listed 130 independent schools where teachers had been implicated in sex crimes against children. That's just the schools where the abuse has been found out. There may well be others where the cover up has been successful until now. None of them will want to co-operate with the inquiry.

We've seen the attitude the Roman Catholic Church has had towards inquiries that have been held in Ireland. Without a statutory basis I can't see the church having the slightest inclination to co-operate with this inquiry.

So, it seems to me that the "statutory impediment" is enough to prevent the inquiry from holding anybody to account who doesn't want to co-operate.

Any allegation of child abuse received by the Inquiry Panel will be referred to the Police;

If the inquiry is a papers-only inquiry as suggested by the Purpose, then it's unlikely that it would ever receive an allegation of abuse from anybody, and this item in the Principles is accordingly redundant.

But this item must be there for a reason, and so notwithstanding the Purpose they must be expecting to receive allegations. So the Terms of reference are inherently self-contradictory. No chair worth his salt will be willing to take on the inquiry while the ToR remain in such a state.

Assuming that evidence from survivors is taken, this principle is in fact sensible, and the panel should provide an information pack to survivors describing how their evidence will be handled, in two parts along the following general lines:

1. Information concerning abusers will be passed straight to the police and not otherwise be handled by the inquiry.
2. Information concerning the failure of others (particularly within institutions) to protect the victim from abuse will be looked at by the inquiry itself.

It's important that this distinction be made, so as to avoid as far as possible confusion and disappointment among the survivors who may give evidence.

All personal and sensitive information will be appropriately protected; and will be made available only to those who need to see it;

This is in fact an important piece of reassurance. It enables survivors to retain their anonymity. Their names and other identifying details will not be published.

It is not part of the Inquiry’s function to determine civil or criminal liability of named individuals or organisations. This should not, however, inhibit the Inquiry from reaching findings of fact relevant to its terms of reference.

Like the point on passing allegations of abuse to the police, it's important that this is made clear - nobody is going to get compensation from the inquiry, though it may well be that the inquiry's findings will provide material that will assist subsequent claims for compensation. (This of course is a further reason why many organisations will not co-operate with the inquiry: they won't want the inquiry to have evidence that will result in "findings of fact" that will expose them to claims.)

There are one or two good points in the Terms of Reference, but the overall impression is that it is a half-thought through mess. It is self-contradictory concerning the range of information the inquiry can access, there are redundant phrases within it, there are phrases whose meaning is very unclear. It has the air of having been hurriedly scribbled on the back of an envelope in response to a 30-minute deadline. It is not the way to write the Terms of Reference for possibly the most important inquiry undertaking in the last 100 years.

The terms of reference are going to have to get rewritten from scratch. They are clearly unfit as they stand.

Mark Sedwill evidence to HASC - 3

The next questions relate to Kincora and then to the possible conversion of this inquiry to a statutory public inquiry.

Q20   Dr Huppert: Can I move away from the question of the appointment of the chair? Important, but I think we have explored that in the letters quite well. Could you help me to understand some of the process points, and particularly to unpack some of the comments made about the relationship with the inquiry that Sir Anthony Hart is doing into Kincora, the inquiry that is being done in Northern Ireland and abuse there at Kincora Boys’ Home in particular? I pressed the Home Secretary on this and she said that she would make sure that nothing happens to allow any information on individuals to slip through the cracks. She did not quite confirm that the inquiry in Northern Ireland will get all the Security Service co-operation that is needed. Have you thought about how this will be ensured: that the Home Secretary’s aim, which is right, is delivered?

Mark Sedwill: We have. There is not much I can add—I do not think there is anything I can add in public—but I think that the Home Secretary was signalling in that remark that we will ensure that nothing does fall between the cracks and the right procedures will be in place with all of agencies that might be involved.

Q21   Dr Huppert: The information that he needs will go to Sir Anthony Hart?

Mark Sedwill: Either to him or to this inquiry panel, but if it relates obviously to Kincora, I think exactly what the Home Secretary was setting out, yes.

Well, he managed to say absolutely nothing at all in those two answers. We are no wiser as to how (if at all) the inquiries will be coordinated and how (if at all) the NI inquiry is going to get Security Service cooperation regarding Kincora. Huppert seemed satisfied with this, if indeed he even noticed that no information had been provided.

Q22   Dr Huppert: Thank you. Again, just briefly, the Home Secretary has left open the option of converting this into a full inquiry. That decision is up to the chair of the panel, but presumably you would have comments on it. When do you think you would want to see that happen?

Mark Sedwill: It is not up to the chair of the panel. We need to appoint the chair. The chair then needs to reach a view and then the Home Secretary would—

Dr Huppert: But the Home Secretary has said she would implement the chair’s decision?

Mark Sedwill: Yes, but that is the formality of it. Obviously we will see what the chair says. I think a lot of this is one of the topics that are being discussed in the various meetings the Home Secretary has been having with the survivors’ group. She set out in the House the reasons for making it non-statutory so far. We will obviously have to see what the new chair, and indeed the panel as a whole, concludes once the whole panel is in place and then I would offer my advice to the Home Secretary in the light of that.

This is explosive. Notwithstanding what Theresa May has said in the Commons, Sedwill is saying that it is the Home Secretary's decision whether or not to convert the inquiry into a statutory inquiry, that she has no obligation to do so even if the chair requests it, and that he will formulate his advice to her depending on what the (as yet unappointed) chair says. This looks a very long way from the more or less automatic acquiescence to a request which is what May suggested would happen in her statement in the Commons. What on earth is going on here?

Q23   Chair: Thank you. Let us just look at this timetable. The Home Secretary has asked this Committee to conduct a confirmation hearing. We have rejected the idea of sending nominees, because we felt that was inappropriate. You understand the reasons?

Mark Sedwill: I do understand, Mr Chairman.

Chair: When do you expect to send us a name?

Mark Sedwill: We have not set a precise timetable yet and, as I say, the Home Secretary is still having these meetings and so she does not want to set that out until she has done that. I know she is before you in a couple of weeks and will be able to say more about it then. Our objective is to be able to send you a name certainly in the New Year. I would not anticipate it would be before that. As I mentioned, there have been a lot of suggestions so far; there might yet be more. We will have to assess all those. There are three sets of criteria: their experience and capability, their availability and willingness to take the job, and—to go to your first question, Mr Chairman—of course, the due diligence issues.

Chair: So by the New Year?

Mark Sedwill: Then one of the issues that the Home Secretary is still considering and discussing is how to involve survivors’ groups or their representatives in honing down that list so that she makes a fully informed choice at the end of the day.

So they have no idea when they will have a new chair, but certainly not until the new year. While I accept that they have to be a bit more thorough this time because of the mess they made the last two appointments, the problem is that the longer they take, the more people will believe that the delays are deliberate and intended to cause the inquiry to fail.

Q24   Lorraine Fullbrook: Mr Sedwill, how easy or difficult do you think it is going to be to find a chairman of such eminence to chair this panel, who has not in the past had some dinner or a discussion with somebody who is historically part of the establishment?

Mark Sedwill: Ms Fullbrook, you put the conundrum very well and that was on our minds throughout the process for selecting the first two candidates. We were trying to navigate that. The scope and scale of the inquiry is such that we always felt that what we were looking for was a chair obviously without any conflict of interest in the sense of the Act, but with the right qualities to conduct a professional and thorough inquiry, relying on the expertise of the panel, and for every member of the panel, as I suggested a moment ago, to know that they would at some point very likely encounter an institution or individual they had some kind of contact with before, and to conduct themselves accordingly. The question is not whether there is any kind of relationship; it is whether you can conduct an inquiry, just as this Committee and others do, when the person sitting on the other side is someone in the institution you have had a relationship with before. As I say, for the chair in particular, what we had not appreciated until the problems arose was the extra test that we needed to apply. But it is going to be challenging and there is not a consensus yet among the survivors as to who that person might be, but our aim is of course to build a consensus and earn their confidence.

The question was a silly one. The problem is not finding somebody with no connections to "the establishment", but in finding somebody with no significant connections to somebody who it is already known is likely to be questioned about an alleged cover up. And obviously Sedwill felt more comfortable with this. He gave by a substantial margin his longest answer of the session so far: 235 words.

Q25   Chair: Just a final question on this area. You set up the Wanless and Whittam inquiry and the report made some recommendations. You have accepted those recommendations. In respect of recommendation 3, has that begun immediately: there should be a system within the Home Office of recording what information is sent to the police and then a formal procedure of confirming what the result of that reference is? It is just that we are concerned.  We know with these reports that they sit on desks. We want to see this happening now. Have you written to the chief constables, have you told the heads of your Departments that they have to start this now, or is there a process that you have to wait for?

Mark Sedwill: The short answer is yes, and indeed, we have agreed with the national policing lead the protocol by which—

Chair: You have told them to start it now?

              Mark Sedwill: That is done. That agreement is reached.

              Chair: Today? Which day?

              Mark Sedwill: The protocol with the national policing lead was agreed a few days ago. We have been talking to him since the recommendations came out. We took the internal actions immediately, the other recommendations immediately, some of which of course had already been implemented. That process is already in place.

And with that they moved on to other subjects unrelated to the inquiry.

Mark Sedwill evidence to HASC - 2

The next block of questions Mark Sedwill took were about the redrafted letter by Fiona Woolf outlining her suitability as chair of the inquiry. I'll put a group of questions and answers together as they did rather merge into each other.

Q7   Chair: We are grateful for that apology. Were you involved in the redrafting of the letters concerning Fiona Woolf?

Mark Sedwill: No.

Q8   Chair: When did you first know that there was a redraft of her letter? We found it very odd, and we discovered this not by going through great due diligence. It was in just one session of the Home Affairs Committee that we discovered that there was a problem in the whole process. We were astonished that Fiona Woolf’s letters were being redrafted by your officials. Who knew about the redrafting of these letters?

Mark Sedwill: Again, to be frank, I think there is less to this than meets the eye. I was not aware there were seven drafts but, to be honest with you, I do not find anything surprising in the fact that a letter of this kind from the chair of the inquiry to the Home Secretary would go through several drafts as she was seeking to reconcile three diaries, establish the facts and so on. The original draft of the letter, which I think is set out in the Home Secretary’s letter to you of 5 November—I do not really have anything to add to that—was done by the solicitor to the inquiry. I think most of the work on it in subsequent drafts was done by officials in the panel secretariat. What they were seeking to do was to ensure that the letter that Fiona Woolf signed off was a complete and transparent record of contact.

              Chair: I understand that.

              Mark Sedwill: As you will have seen, for example—

Q9   Chair: You are saying you had nothing to do with the drafts?

              Mark Sedwill: Not personally, no, but I would not expect to.

              Chair: Did you know the drafting process was going on?

Mark Sedwill: I was aware that there was a letter in draft. That is perfectly normal, yes.

Q10   Chair: You see, what the public will think very odd is that somebody is appointed to this job and you ask them to declare their interests. You work for the Home Secretary; you do not work for Fiona Woolf and your officials do not work for Fiona Woolf. Isn’t it odd that the very person who should be open and transparent is having her letters redrafted by the officials who work for the woman she is writing to? Do you not think it odd?

Mark Sedwill: Mr Chairman, she is not having her letters redrafted. As I said, the original draft was done by the solicitor of the inquiry panel, not by my officials, and the officials who were working on it with her were mostly those officials in the panel secretariat. It is their job to support the panel and to support the chair of the panel. I get drafts all the time and they will have been through iterations before they get to me. They get to me in draft; I send them back. When I write a letter, for example, to this Committee, I take personal responsibility for the final version of it and make sure that it is a complete record. The fact that it goes through some drafts and iterations, either before it gets to me or indeed after I have seen a draft, is not out of the ordinary.

Chair: I understand the drafting process. We have all been there and we have been around for a while, but the fact that someone from outside is appointed and then has her letters drafted by people who work for the woman who she is then going to apply to join may be seen to be odd.

In essence, Mark Sedwill is saying that there was nothing unusual about Fiona Woolf being given help drafting the letter, even though she is an experienced lawyer, used to dealing with words, and well aware of her obligation under the Solicitors' Code to make a full disclosure.

There are three reasons why this looks very odd, and even bad, to an ordinary member of the public.

1. The first draft was done by the solicitor to the inquiry that Woolf herself was being considered to be chair of. The appearance is that they wanted her sufficiently that they were prepared to do her own declarations for her.
2. The first draft revealed a significant social connection with Leon Brittan, which in the context of a criminal or civil trial in which he was a witness, would have seen her recused from the case. But it appears that no alarm bells sounded within the Home Office as to whether her impartiality (or the public perception thereof) might be impaired, even  though for the connection to be acceptable it would (in the words of Section 9 of the Act) have to be that the "appointment could not reasonably be regarded as affecting the impartiality of the inquiry panel". It is a considerable stretch to try and suggest that being on dinner party terms with the former Home Secretary who may have serious questions to answer about the handling of the Dickens dossier, one of the central issues of the inquiry, couldn't reasonably be regarded as affecting impartiality.
3. If the drafting process had been as Mark Sedwill suggests "to ensure that the letter that Fiona Woolf signed off was a complete and transparent record of contact", then what we would expect to see in successive drafts was new facts being added as memories were refreshed and different diaries consulted. Even if not every draft contained new facts, one would expect that at least some of them did. But this isn't what we saw. In draft after draft, the extent of the connection became that bit less. Facts changed but almost always in the direction of reducing elements of the relationship. The impression given was not of ensuring that a full record was provided, but was rather of paring down the record as far as possible to reduce the possibility that the connection would affect the public perception of bias. That got blown out of the water when the HASC asked for the drafts.

Of course, Woolf was the second chair. They had already had a painful process whereby Baroness Butler-Sloss had had to resign after being appointed and very publicly supported by both the Home Secretary and Prime Minister. It seems that they just didn't learn their lesson from that.

Q11   Tim Loughton: Mr Sedwill, notwithstanding what the Home Secretary is currently proposing over counter-terrorism measures, do you think the historic child sexual abuse inquiry is one of the top three priorities of the Home Office at this time?

Mark Sedwill: Yes.

Q12   Tim Loughton: In which case, given the sensitivities of the appointment of the chair having failed once, do you not think that you might have taken a rather closer interest in the process that led to that final letter and the appointment?

Mark Sedwill: Sorry, just to get the sequence right, Mr Loughton, the letter was the other way around. Fiona Woolf was appointed and announced. After she was announced, she brought to our attention the fact that she had a social relationship with the Brittans. As she said in her article in The Times and I think to this Committee, she had not declared that beforehand because she had not considered it material to conducting the panel appropriately. When she did so, we took advice on whether that met the test in the Inquiries Act. We then went through the process of asking her and the rest of the panel to set out in writing to the Home Secretary any social relationships of that kind. That is the sequence. It was after she was appointed.

So, the inquiry is a top 3 issue for the Home Office, and having lost one chair in part at least because of social connections with people of interest to the inquiry, they appointed and announced a new chair without even asking whether she had any social connections that might be of issue. Fiona Woolf realised that this might be an issue and mentioned it to the Home Office some time after her appointment, and only then did the machinery swing into action to evaluate whether this was a Section 9 concern.

I would like to say that it is to Fiona Woolf's credit that she did mention this, apparently unprompted. The fact that she was a bit late in doing so should not be held against her, it's perfectly common for things to occur to you as you start concentrating your mind on a subject. The problem is not Fiona Woolf's conduct in making the disclosure but the way it was handled by officials thereafter.

From Sedwill's answer, it is also clear that they also hadn't asked anybody else on the panel such questions, and so all the panel members, some time after being appointed, had to go through the process of formally declaring their connections and their belief that it would not affect their ability to conduct the inquiry impartially. What a shambles. This by itself is an argument for revisiting the appointment of the entire panel, starting from scratch using the new process that is supposedly in place for the appointment of the new chair.

Q13   Tim Loughton: I understand that. I am interested not so much in the detail, but in the interest you have taken in that whole process, given that it was after Elizabeth Butler-Sloss had fallen on her sword.

You referred to the Inquiries Act. Notwithstanding the letter of the Inquiries Act, in retrospect do you think it was unwise to allow to go forward the name of Elizabeth Butler-Sloss as the sister of the senior law officer who was in place at the time of many of the cases that were highly likely to be included in this inquiry? Was that an oversight?

Mark Sedwill: I do not think it was an oversight, because we were aware of it. Indeed, when I appeared before this Committee on the issue of child sex abuse back in the summer, I think it was the Chair who asked me about—I think it was announced that day, Mr Chairman—whether it was appropriate, given that she was the sister of a former Lord Chancellor, and we discussed it in the Committee at that point. We were well aware of that and made a conscious judgment that somebody with that record of integrity could conduct the panel notwithstanding that. As I have said, all of us—I take my share in this but this is a judgment that all of us made—did not appreciate that for this particular inquiry the threshold has to be in a different place.

He's going on again about there being a different threshold for this inquiry, as if repeating the point will make it more believable than the first time round. He also makes it clear that they knew from the beginning that Butler-Sloss was Havers' sister, and decided it didn't matter.

Q14   Tim Loughton: Going forward, given these false starts, given these serious question marks about reiterations of drafts of letters and given that the Home Secretary has met, and you say will continue to meet, various survivors’ groups, who some of us have met—and it is very difficult to have a single view, a single representation—do you think we can reach a place where, by and large, the survivors will have any confidence in the next person or persons the Home Secretary nominates to be the chair of this inquiry?

Mark Sedwill: I believe so, because we have learnt the lesson. That is why the Home Secretary set out in the House that she wanted to meet survivors’ groups and have a series of meetings of survivors’ groups before appointing the new chair, and not just on the question of the chair but on the questions of how the panel itself is constituted and so on. We are discussing a range of issues. She wanted to consult them before doing that. I think that process is designed, as she set out, to achieve that confidence.

He says they have learnt the lesson. We will see. The omens aren't all that good given that there has been no suggestion yet that the panel appointments should be revisited, and there are issues yet to be addressed with some panel members. If the lessons have been learned, we will see it in an announcement that the panel composition is being revisited, and in the name provided for the new chair.

The difficulty of getting consensus among the survivors is a real one. They aren't a conventional lobbying group, they are a disparate group of individual with widely differing experiences and understandably with a range of key priorities. Their range of experiences are such that some want a judge to run the inquiry on the grounds that they are independent of the politicians, while others have had bad experiences of judges and don't want one anywhere near the inquiry.

Whoever is chosen as chair, there will be (hopefully a small number of) survivors who think it is a bad choice and will refuse to co-operate. The best that can be hoped for is that the leaders of the charities that provide support to survivors and who de facto are in the position of representing their interests get together and agree a reasonable range of characteristics for the chair that they find acceptable.

Q15   Tim Loughton: Why didn’t you advise her to do that in the first place?

Mark Sedwill: This is a wholly unprecedented situation. I do not think we have ever had an inquiry of this kind and that question did not arise.

I have a bit of sympathy for this. We haven't had an inquiry quite like this before. But comparable inquiries have happened elsewhere and one is going on in Australia right now.  It's not as if they had no means of working out what they were letting themselves in for.

Q16   Tim Loughton: In retrospect, do you think you should have done?

Mark Sedwill: In retrospect, as I say, it was unprecedented and it does set a precedent for particular inquiries of this kind. One should always learn lessons from these kinds of things. Of course, Mr Loughton, had we realised at the time just how difficult this was going to prove, had we been able to set out a process of this kind at the time, it would have taken a bit longer to appoint the first chair but we might have achieved the result the Home Secretary is now trying to achieve.

20/20 hindsight. Isn't it wonderful!

Q17   Mr Winnick: I assume, Mr Sedwill, there will not be any redrafting of letters of the next person recommended or appointed to be chair; I think we can work on that assumption. What I want to ask—

              Chair: Sorry, Mr Winnick. Is that the case?

Mark Sedwill: There is an underlying assumption in the panel’s question that there is something untoward in the solicitor to the inquiry doing a first draft of a letter that set out some facts about a social and personal relationship, that other information collated from three separate diaries that Fiona Woolf was running is then inserted into later drafts of that letter, and that Fiona Woolf herself then makes any final adjustments to it and produces a final letter. There is an assumption here that that is untoward. It is not untoward and I just need to be clear that I would expect that on-the-record letters, on-the-record correspondence from the chair of this panel, whether it is about the substance of the inquiry or indeed other matters, may well go to the chair or other members in draft from their staff and they may well then wish to make adjustments to it. I do not think there is anything untoward in that. We have to be careful not to make that suggestion.

Hmm. Perhaps not many lessons have been learned after all, if the redrafting of letters is still regarded as perfectly OK. That said, I can see that some letters might justifiably get drafted and redrafted, for instance a letter from the chair requesting a conversion to a statutory inquiry or a change in terms of reference. But I hope very much that Sedwill doesn't think it's OK for a prospective chair's disclosure of interests to be drafted and redrafted by the inquiry or the Home Office. As you can see below, Mr Winnick took the same view.

Q18   Mr Winnick: That is in the past. All that I would say is that anyone who is appointed by the Home Secretary to be chair is most unlikely to go through that drafting process, but we shall see. I think common sense dictates the obvious answer on that.

What I want to ask you, Mr Sedwill, is this: these are two highly-distinguished individuals and their integrity is in no way questioned. I will correct that: I am sure that no one has done so and I see no reason why their integrity should be questioned in any way whatsoever. However, I would have thought, on the first choice, that it was not simply a matter of the brother holding high positions, both parliamentary and legal, but the fact that certain aspects would have been known. I would have thought that in itself would have meant some caution on the part of those advising the Home Secretary and that, of course, led to a great deal of embarrassment for the person who was appointed as the first choice.

Mark Sedwill: As I have said, Mr Winnick, I think none of us, including, as you say, these two highly-distinguished individuals, appreciated that in practice the judgment had to be made at a different threshold from that for any other inquiry panel, including the very delicate ones that in particular Lady Butler-Sloss led in the past over many years. Of course, everyone welcomed her appointment when it was made because of that track record. It is also important to keep in mind that this panel is going to have such a wide-ranging brief that most of the members of it will, at some point in the course of the inquiry, probably find themselves dealing with an institution or an individual with whom they have had some kind of contact in the past, because that is the nature of an inquiry of this kind. They will need to conduct themselves, as indeed this Committee often does when you are dealing with a particular topic, by declaring if they have an interest—they will not necessarily know now what that is, so they cannot necessarily foresee that—and conducting themselves accordingly, and that is an entirely appropriate means of proceeding.

And again we have the claim that this is a different threshold. The problem is not that Butler Sloss had a brother in government, but that he would undoubtedly have had an involvement in the handling of issues around child abuse that arose at the time, and that it is possible that the inquiry might have to comment adversely on his conduct and/or competence. Its a clear impediment to impartiality where the chair of a major inquiry might have to criticise the conduct of her own brother, and where this is known from the outset.

Q19   Mr Winnick: What do you think, Mr Sedwill, of the view sometimes expressed that in both cases it was a choice made from what could be described as the very limited location of Westminster—not simply of London but of Westminster—and within Westminster, a very limited location to say the least, places that I certainly do not live in?

Mark Sedwill: Nor I.

Mr Winnick: What about going further afield to the rest of the country?

Mark Sedwill: That is exactly what we are trying to do now, Mr Winnick. Recognising this panel has a different remit and needs to be run in a different way from almost any other inquiry panel we have run in the past, that is why we are spreading the net wider and why the Home Secretary is going through that process, yes.

              Mr Winnick: You are doing that now.

Spreading the net wide is not as unprecedented as all that. The IRA weapons decommissioning process was overseen by a retired Canadian general. Anyway, we will see what they come up with.

More analysis to follow.

Mark Sedwill evidence to HASC - 1

There's a lot of educating of the Home Office still needed if they are going to start to understand what really needs to be done about a transparent process for the child sex abuse inquiry.

Mark Sedwill, Permanent Secretary at the Home Office gave evidence to the Home Affairs Select Committee last week, and a substantial proportion of the questions were about the inquiry. It's worth going through the questions and answers one by one.

Q1   Chair: May I welcome the Permanent Secretary at the Home Office, Mark Sedwill? This is part of the Committee’s normal scrutiny of the work of the Permanent Secretary. Mr Sedwill, could I start with the child abuse inquiry, which seems to be rather leaderless at this moment? You have had two chairs who have subsequently resigned. We know that the panel is meeting at various different locations as we speak, but why is it that so many people are so reluctant to take the chair of this inquiry?

Mark Sedwill: Mr Chairman, thank you. As you say, we have lost two chairs, and I should put on the record again—as I think you have—that Elizabeth Butler-Sloss and Fiona Woolf are both people of the highest integrity who would have done a creditable job but, for reasons I am sure you will want to discuss, it was not possible to pursue them. I do not think there is a lack of people willing to do it. Indeed, as the Home Secretary is discussing the forward plan for the panel with the various survivors’ groups that she is meeting—I believe she still has several of those meetings to go—we have suggestions of 100 names. We will have to work our way through all those, but there is quite a number of suggestions at least of people who might be appropriate to do this.

With this answer, Sedwill appears to be suggesting that if it weren't for all these awkward survivors, both Butler-Sloss and Woolf would have done a fine job. Section 9 of the Inquiries Act 2005 makes specific requirements concerning impartiality, and both clearly failed. Even though the inquiry is still currently non-statutory and so the Act doesn't strictly apply, Theresa May has said in parliament that the inquiry will be converted to a statutory inquiry under the 2005 Act if the chair requests. Even if that wasn't so, there is a common law duty to ensure a reasonable degree of impartiality even for non-statutory inquiries, and the 2005 Act gives a handy standard to apply.

It was the Home Office which failed to do its research properly for both Butler-Sloss and Woolf. both were clearly unsuitable by the standards of the 2005 Act and this should have been discovered by the Home Office before they appointed, not by survivors afterwards.

Q2   Chair: Sure, but you were brought in when you were appointed—you have been there now for a year and a half—as the safe pair of hands, the new broom in the Home Office, but here we have a situation where the Home Secretary has been left dangerously exposed, both in Parliament and outside, with a lot of criticism over the way in which the due diligence was carried out. This is not something Ministers should do. This is something for your officials, and therefore you are responsible as head of the Home Office. Why wasn’t that proper due diligence carried out in both these cases before these names were put to Theresa May?

Mark Sedwill: Mr Chairman, I think proper due diligence was carried out. What we had not understood—and I certainly accept I had not appreciated—was that the threshold that we were setting was probably different for this inquiry from that for any other. If I can just talk briefly about the due diligence, this is done rather like security vetting. Checks are done on people’s professional associations—are they on the board of anything that has an association with anyone who might be the subject of the work of the panel? There is a widespread search across the internet and so on. But in the end we rely on individual panel members themselves to identify whether in particular they have any social or personal connections that might either be a real or perceived conflict of interest, because there is no way of—

Q3   Chair: You are saying it was not your fault and the fault of your—

Mark Sedwill: No, I am not saying that, Mr Chairman.

              Chair: But do you accept any responsibility?

              Mark Sedwill: Yes, I do.

It is absolute rubbish that "the threshold that we were setting was probably different for this inquiry from that for any other". The threshold is the impartiality requirement of the Inquiries Act, which the Home Office legal advisers must surely have been able to tell him.

Q4   Chair: Would you like now basically to apologise for the fact that this was not carried out in the way that it should have been?

Mark Sedwill: If I can just finish the point, Mr Chairman, I think we worked to carry out the due diligence in a thoroughly professional way. What we had not appreciated—and I entirely accept this, I must bear responsibility for this as well—was that the threshold we were setting was the threshold set in the Inquiries Act as to whether there is a real or perceived conflict of interest that might in some way undermine the credibility of the panel. This particular inquiry is on such a sensitive issue and the scale, scope and complexity of the work is extraordinary. We had not appreciated that the threshold, as Fiona Woolf herself said, as the Home Secretary said, was in a different place. It needed to be that the chair of the panel could command and can command the confidence of survivors and their representatives.

No, the threshold is in the same place as for other inquiries. The "confidence of survivors and their representatives" Sedwill refers to was lost specifically because both chairs clearly failed to meet the criteria of Section 9 of the Inquiries Act. The sensitivity of the inquiry simply meant that the Home Office needed to be extra sure that it had done its due diligence properly, because the appointment would inevitably come under significant outside scrutiny after it had been announced. They didn't, and two resignations were the inevitable result.

Q5   Chair: But that is a basic failing over the way in which this matter was handled and it has left the whole inquiry in a bit of a mess. This is something that should have been done right at the start, surely. Knowing the problems, you should have sat down with your senior officials and worked out a process of due diligence that would allow the person selected to be the subject of the greatest possible scrutiny. You now accept that that was not carried out. Leaving the threshold aside, this is a judgment that you have failed to make.

Mark Sedwill: Mr Chairman, I am afraid you are trying to make this an issue that it is not. We were applying the tests set out in the Inquiries Act, which we felt was a reasonable way to proceed. We were relying on information that our officials can gather separately and information that the individuals, all the panel members themselves, declare, including their social and personal connections, and we made a judgment on the basis of that. It became apparent that that threshold, as I say, was not appropriate to this particular inquiry. Maybe we could have anticipated that at the beginning.

Sedwill, although he's being a bit unspecific about this, appears to be saying that the fact that Butler-Sloss's brother was attorney-general at the time when it appears that cover ups were happening is not an impediment under Section 9 of the Act. Here is Section 9, let's look at exactly what it says.

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.

It seems to me a straightforward matter of fact that even though Michael Havers is dead, he qualifies as an "interested party" and that Butler-Sloss being his sister definitely counts as a "close association". With an inquiry as sensitive as this, you are very careful not to rely on the belief that the "appointment could not reasonably be regarded as affecting the impartiality of the inquiry panel". So the appointment should have been ruled out because of section 9(1)(b).

As for Fiona Woolf, while her connection with Brittan is not as close as that of Butler-Sloss with Havers, Brittan is still alive and it is reasonable to think that he will be called to give evidence, possibly (if the inquiry is converted to a statutory inquiry) having to give evidence under oath. Were she a judge in a case where Brittan was going to be a witness, she would definitely have had to recuse herself. There's no reason to expect a lower standard of the inquiry.

Q6   Chair: You adopted the wrong threshold?

Mark Sedwill: We adopted the threshold of the Inquiries Act, Mr Chairman. In retrospect, I entirely accept we had not realised that the threshold for this particular inquiry is different, but I do not think it is unreasonable to have adopted the threshold set out in the Act of Parliament for inquiries of this kind. I am sorry. I repeat what the Home Secretary said in the House, I am sorry that we are in the situation we are in. When I was last before you, we were talking about the first chair of this inquiry being able to get the inquiry moving promptly, and of course inevitably this has caused a delay and that has caused a great deal of stress to survivors and their representatives. We are now trying to put that right.

If Sedwill thinks that either Butler-Sloss or Woolf were OK by the standards of the 2005 Act, then he's either incompetent or has been appallingly badly advised.

I'll go through the rest of the HASC questions in subsequent blogs.