Monday, 21 November 2016

The secrecy of the IICSA and the damage it has caused

Back in November 2014 I wrote an article for the Guardian. "The child abuse inquiry needs to start again with transparency and trust". The first two paragraphs said this.
Trust. That’s the issue. Child abuse survivors, particularly those abused in institutional settings, are often highly mistrustful and obsessively motivated. It’s hard for those not abused in childhood to understand how devastating it is to be so thoroughly betrayed by the very adults and authorities on whom you depend for your care, and how profoundly that affects your ability to trust anybody in later life.

The home secretary Theresa May’s conduct in setting up the inquiry falls far short of building the trust necessary to gain the confidence of these extremely and justifiably mistrustful people. It is clear from her statement in parliament on Monday that she isn’t close to understanding how much transparency is really needed.
The most important point I made at the time was that the inquiry needed to be put on a full statutory footing with the power to take testimony under oath and to compel the production of documents.

At that stage, the inquiry in its non-statutory form was manifestly unfit for purpose because it had no powers to get any information out of anybody who didn't want to co-operate.

Moreoever we had just lost two chairs. Baroness Butler Sloss resigned the day after it was revealed that she had suppressed the name of an abusive (and since convicted) bishop from a report she had prepared into abuse in the Church of England. Fiona Woolf was a inexplicable selection, a commercial solicitor who specialised in electricity deregulation. How that qualified her to run a child abuse inquiry was and remains a mystery to me.

But after that, some things did improve. Theresa May decided to restart the inquiry as a full statutory inquiry, and a much more comprehensive process of due diligence went into the selection of the third chair, New Zealand judge Lowell Goddard. On the face of it she seemed a much more fitting choice. That it didn't work out and that she resigned this summer doesn't mean that the choice was originally a bad one, that the process for choosing her was flawed or that her subsequent resignation could reasonably have been predicted. Sometimes good decisions turn out badly.

But I think lack of transparency is still a major problem. Since it was set up, the IICSA has produced just one progress report. It is 15 pages of PowerPoint-style layout. Only a page and a half (less than 500 words) actually includes any description of progress. It amounts to half a page on each of pages 12, 13 and 15. The foreword from the Chair and the introduction from the Secretary between them are longer than that.

500 words describing 18 months of progress is really not enough. It is quite frankly an insult to the intelligence of the public and especially survivors. I can understand that it takes a while to get an inquiry to the point where public hearings can take place. It is a far more complex undertaking than an individual criminal trial. For instance Laurence Soper (former Abbot of Ealing) was arrested in August this year on suspicion of child abuse, and his trial probably will not start until February or so. That's the trial of one man. Looking into the alleged failings of multiple institutions is more complex and takes more preparation. People will get that if you explain it and regularly describe how far you've got.

I don't expect a running commentary on what evidence is being looked at prior to the public hearings. I don't expect the anonymity of complainants to be breached. But surely can't be hard to produce a regular update (fortnightly or so) describing what has been achieved and what is the schedule for the next events, and stating what has caused the change where the schedule is changing.

Because this sort of information has not been released, there is a widespread perception that absolutely nothing has happened in the last 18 months, that all the money spent has been wasted and that we will have to start again from scratch with the new chair. This plays into the hands of those who think the inquiry should never have been started and should be stopped. The publicity that such people whip up deepens the despair of those survivors who wonder if they will ever be heard, and deepens the cynicism of a minority of survivors who see this as the establishment scheming to find ways of protecting itself. It was all so avoidable just by being serious about transparency and letting people know on a regular basis what progress is being made.

The perception further exists that having achieved nothing in 18 months, the inquiry is going to be hard-pressed to complete 13 investigations, whatever additional investigations will also be needed but not yet scheduled, reach its conclusion and write its report within the remaining three and a half years of the original five year estimated timescale.

The perception that it will take longer the the original 5-year estimate may well be true. The inquiry has not released any schedule so we don't know what they think about it. The precedent of the delays to the Chilcot inquiry is not encouraging. People fear that Professor Jay's promised but as yet unpublished review will cut down the scope of the public hearings in order to stick to the schedule, and instead encourage more papers-only reviews and more people to go to the Truth Project instead.

I think that would be a mistake. There are things that can be done to speed up the process without sacrificing public hearings. It is my understanding that Goddard intended chairing every public hearing for all five "strands" of the inquiry. As a result, all the hearings would have had to be conducted consecutively. Given the amount of evidence that will need to be heard, that seems unwieldy. Instead, we could have multiple public hearings going on in parallel. Each investigation could have its own panel member chairing it, its own lead counsel asking the questions, its own legal and secretariat team supporting it. The panel members would meet regularly to swap experiences (and would of course read the transcripts of each other's hearings).

The panel should also point out that its terms of reference don't require it to investigate every institution that ever failed children. For instance we don't need to look in detail at the failings of every local authority social services department. It should be enough look at a sample sufficient to detect patterns of failure that are likely to be replicated nationwide, and to make recommendations for change accordingly. Similarly, for example it's probably not necessary to look in detail at every parish of the Roman Catholic Church. They inquiry is currently scheduled to look at the English Benedictine Congregation (who run a number of schools) and the diocese of Birmingham (where several abuses are known to have happened). It is likely that we will learn enough about the failings of the Catholic Church from those two investigations to be able to make recommendations that are applicable to the church in general. A combination of parallel hearings and wise choices concerning which institutions to investigate in detail should keep progress moving while not sacrificing thoroughness.

Parallel hearings would not necessarily be simple to achieve. Parallel hearings means evidence needs to be collated more quickly, lines of inquiry decided on sooner, more buildings and rooms found in which the hearings can be conducted (including facilities for press and witnesses). The panel members recently mentioned in evidence to the Home Affairs Select Committee the problems they have been having finding suitable premises for hearings.

The panel's recent appearance before the HASC was rather a car-crash. Just about every question met with a what appeared to be a pretty belligerent intention to provide little or no answer. That's not the way to win friends and influence people, in Parliament or outside. While the work can proceed in the absence of friends, it's a whole lot easier with them. Quite frankly the HASC members mostly aren't lawyers, they were asking fairly soft questions and could easily have been treated with more friendliness. That they weren't suggests that the inquiry has acquired a siege mentality where the press and parliament and even the public are regarded as enemies trying to break down the gates. If true, that has to be changed and quickly.

When the inquiry has been asked for comment on various issues, it has usually not been the Chair or any of the other panel members who have come forward. It has been members of the Victims and Survivors Consultative Panel, most frequently Peter Saunders, Lucy Duckworth or Chris Tuck.

There are a number of serious problems with this policy. First, speaking to the media on behalf of the inquiry is not within the VSCP's terms of reference (unless they have been secretly changed, which itself would be a most nontransparent thing to do).

Second, the VSCP members are (according to the terms of reference) supposed to "bring a representative cross­-section of experience and opinion to the Inquiry's work". In other words they are supposed to be representing survivors to the inquiry, not the inquiry to the survivors. I get the impression that neither the inquiry panel members nor the VSCP members realise how damaging it is to the reputations both of the VSCP and the inquiry as a whole for the VSCP members to be straying from their role in this way. In a particularly bad example, on the Victoria Derbyshire programme Peter Saunders got into a quite unseemly row with Raymond Stevenson of the Shirley Oaks Survivors' Association. It took the fallout from that and the sense that the story might be careering out of control for Dru Sharpling of the panel itself to give interviews later that day.

The third problem with VSCP members being the public face of the inquiry is that they are quite peripheral to the inquiry's operations. They will take no part in any investigations and are in no position to say what progress is being made or to say whether or to what extent this or that event or resignation will affect the inquiry as a whole. There are plenty of people in the press and among the survivors who realise this, and every time VSCP members appear in the press the more trust in the inquiry drains away, because press and survivors know that the people who do have the answers are keeping quiet.

There appear also to be some significant oddities about the way the inquiry was set up. According to the Inquiry Rules 2006, the only people appointed to the inquiry by the sponsoring minister (in this case the Home Secretary) are the chair and other panel members. The other senior posts, including the Secretary, Counsel and Solicitor to the inquiry are for the chair to appoint. And yet all three posts were appointed before Goddard, and it would appear the Home Office didn't make it clear that they were in fact people she had the power to appoint rather than the Home Office.

Goddard in her statement to the Home Affairs Select Committee alluded to the frustrations of not being able to start fresh with her own team. The IICSA has claimed that only a small proportion of the inquiry secretariat has been drawn from Home Office civil servants, but to the best of my knowledge they are predominantly in senior positions, including John O'Brien, who is Secretary to the Inquiry.

I don't know and have never met John O'Brien. What I do know is that the Home Office is a notoriously secretive department, and that secretiveness contributed to the early missteps which I described in my Guardian article. This secretiveness is the opposite of what is needed in order to reassure the survivors who have been let down so many times that they are justifiably very mistrustful. It is a secretiveness the inquiry seems to have inherited and it is doing huge damage.

So here is my plea to Professor Jay:
  • Start producing frequent and regular progress updates so as to reassure survivors and others that progress is being made.
  • Don't cut down on public hearings, run them in parallel and delegate them to your fellow panel members in order to make faster progress.
  • Keep VSCP members away from the press and have panel members more frequently available for interview.
  • Be friendly to the Home Affairs Select Committee
  • Think of ways of increasing transparency wherever possible in everything you do.

1 comment:

  1. You don't touch on the problems behind the scenes connected with Ben Emmerson's core role.

    Setting aside the question of how well these have been handled so far, they've complicated the relationship between the Inquiry and the public. Prof. Jay's position is not an easy one, having to respond to the conflicting demands of (rightfully) impatient survivors, the determination of powerful interests to undermine trust in the inquiry and the confusion of the general public.

    Nevertheless, these challenging circumstances are a good example of the sort of real world conditions that the Inquiry is going to have to take into consideration in formulating robust guidelines aimed at ensuring that institutions avoid the calamitous safeguarding failures of the past.

    The Emmerson situation has provided Prof. Jay with the opportunity to show that she understands how important the Inquiry's own practical commitment to transparency is to its work.