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