Monday, 26 June 2017

Ealing WILL be kept in the Inquiry

Following the hearing on 6th June, Alexis Jay, chair of the inquiry, has announced a decision as follows.
Having considered all of the submissions, my decision is that the EBC [English Benedictine Congregation] hearing should take place as planned in November and December 2017 and that evidence in relation to Ealing Abbey/St Benedict's will be heard but not before the relevant criminal proceedings have concluded. Reasons for this decision and my decisions in respect of any other matters will follow.
What this means is that the IICSA hearing in November/December will cover Ampleforth, Downside and Worth. But they have made a definite commitment to hold a further hearing on Ealing at a later date once the forthcoming criminal trial is over. This is different from the original proposal which was to wait until after the trial and them make a decision as to whether any hearings on Ealing were necessary at all.

This at least does provide some reassurance to the Ealing survivors that Ealing Abbey will be looked into, rather than them being left in a limbo for at least a year and a half since they were designated as core participants waiting to know whether they will have anything to participate in. We don't know when the Ealing hearings will take place - it depends on how long the criminal trial takes.

There's no news yet as to whether Fort Augustus will be kept in the inquiry. I wish I had something more positive to say other than that I think there is a strong case for keeping Fort Augustus in, and that must at one time have been accepted by the inquiry otherwise there could have been no justification for designating Fort Augustus survivors as core participants when this happened last year. I hope that reasoning is treated with due weight by the chair.

Friday, 9 June 2017

Fort Augustus, Truth and the IICSA

In his famous 1974 Caltech commencement address Cargo Cult Science, Nobel prizewinning physicist Richard Feynman mused on the standards of truth expected of scientists. It really is a wonderful speech and I recommend you follow the link above and read all of it. But here's the bit that is relevant to what I have to say.
It’s a kind of scientific integrity, a principle of scientific thought that corresponds to a kind of utter honesty—a kind of leaning over backwards.  For example, if you’re doing an experiment, you should report everything that you think might make it invalid—not only what you think is right about it: other causes that could possibly explain your results; and things you thought of that you’ve eliminated by some other experiment, and how they worked—to make sure the other fellow can tell they have been eliminated.

Details that could throw doubt on your interpretation must be given, if you know them.  You must do the best you can—if you know anything at all wrong, or possibly wrong—to explain it.  If you make a theory, for example, and advertise it, or put it out, then you must also put down all the facts that disagree with it, as well as those that agree with it.  There is also a more subtle problem.  When you have put a lot of ideas together to make an elaborate theory, you want to make sure, when explaining what it fits, that those things it fits are not just the things that gave you the idea for the theory; but that the finished theory makes something else come out right, in addition.

In summary, the idea is to try to give all of the information to help others to judge the value of your contribution; not just the information that leads to judgment in one particular direction or another.

The easiest way to explain this idea is to contrast it, for example, with advertising.  Last night I heard that Wesson Oil doesn’t soak through food.  Well, that’s true.  It’s not dishonest; but the thing I’m talking about is not just a matter of not being dishonest, it’s a matter of scientific integrity, which is another level.  The fact that should be added to that advertising statement is that no oils soak through food, if operated at a certain temperature.  If operated at another temperature, they all will—including Wesson Oil.  So it’s the implication which has been conveyed, not the fact, which is true, and the difference is what we have to deal with.
The point he's making that scientists need to hold themselves to a higher standard of truth, they mustn't mislead with technically truthful statements. Advertisers do that all the time, but scientists shouldn't, they are the bearers of an important responsibility to tell the truth without misleading.

Lawyers are also supposed not to lie, they are "officers of the court" and have a duty to the court over and above their duty to their clients. But (in my layman's understanding) their duty can get a bit fuzzy round the edges when there is the opportunity to mislead with technically true statements and they have a client's interests to defend. But the lawyers acting for the IICSA in a very real way don't have a client to defend, they are servants of an inquiry supposedly dedicated to discovering the truth. There should be no need for those sorts of games, no matter how legal they are and how well they fall within the codes they adhere to. The lawyers for the inquiry should be able simply to tell the truth without shading it. We should be able to hold them to that higher standard.

So imagine my disappointment when Ms. Karmy-Jones, counsel to the inquiry for the Roman Catholic investigation, said the following in her initial remarks to the hearing on June 6th.
In relation to core participant status, it must be remembered that when individuals were granted core participant status, it was made plain in the notices of determinations that were sent out that the inquiry is obliged to take a proportionate approach to its investigation and will not be in a position to investigate fully the circumstances of each and every core participant's personal experience. It must be remembered that there is a difference between the status of a core participant and a witness. Individuals have been designated core participants because they have a significant interest in the matters under investigation within the Roman Catholic Church investigation. That allows them to take part in proceedings, to make submissions, to receive relevant disclosure and to be represented at inquiry hearings, but it does not necessarily mean that their evidence will always automatically fall to be adduced or that the inquiry will be in a position to investigate their specific experiences.
Now let me be clear, every single word of that paragraph is true. Ms. Karmy-Jones is absolutely not lying. But nonetheless, in offering true statements, she is seeking to justify a course of action (dropping Ealing and Fort Augustus from the inquiry) with a description of the situation which is incomplete and thereby inaccurate.

Let's talk first about the distinction between a witness and a core participant. Ms. Karmy-Jones is perfectly correct in her description of the difference. It is quite possible for instance that if a large number of survivors from one location all describe similar experiences in their written statements, they might not all get called to give evidence in person in public hearings. The inquiry could with perfect justification decide that a representative sample was sufficient to establish the existence of a pattern and therefore evidence of institutional failure, which after all is what it is supposed to be finding out about.

Let's look next at the "proportionate approach". Yes the statement about a proportionate approach is in every published determination on core participant status. Core participant status can only be justified for people if "they have a significant interest in the matters under investigation". But this is where Ms. Karmy-Jones' point begins to look a bit more shaky. In the context of survivors, awarding CP status can only possibly mean that the inquiry has a definite intention to investigate the institution in which the survivor was abused, or which otherwise failed to prevent the abuse. There is no earthly point in defining survivors as core participants when they are associated with an institution the inquiry has no intention to investigate. This would be disproportionate and and the legal representation for them out of the inquiry budget would be a waste of taxpayers' money.

The inquiry has made determinations awarding core participant status to survivors from both Ealing Abbey/St Benedict's School and Fort Augustus Abbey and school. Ealing is mentioned by name in the scope of the Roman Catholic investigation, while Fort Augustus is not. However, this makes no significant difference, the inquiry's clear intent to investigate both was signalled by the awarding of CP status to both groups of survivors.

Ms Karmy-Jones later said this specifically in the context of Fort Augustus.
It is important to remember two things, and I deal with this in some detail because of the news reports. Firstly, the inquiry's jurisdiction is restricted to England and Wales. And secondly, rather than the specific allegations of abuse, the inquiry's remit is to investigate possible or alleged institutional failings in safeguarding.
The matter that seems to have given rise to concern is an interpretation of a passage from Mr Emmerson's opening at the preliminary hearing in July 2016, set out in Mr Khan's document. But just to remind the parties of what he said, he said:
"The inquiry's scope is limited to England and Wales, but because clergy involved in the Benedictine schools have been moved between Scotland, England and Wales, and because, despite being in Scotland, Fort Augustus Abbey and its schools were affiliated with the English Benedictine Congregation, we will investigate failures in relation to that school as well."
It appears that the last sentence of that passage has been interpreted as meaning that this inquiry will investigate Fort Augustus as a whole, including the nature and extent of allegations of abuse there, and Fort Augustus as an institution's response to it. But we suggest that is incorrect. Mr Emmerson was plainly speaking with the caveat that the scope of the inquiry was limited to England and Wales, and specifically references the issue being the movement of individuals.
If that were so, and if the chair had interpreted the scope of the inquiry in this way, and if as a result there was never any intention to investigate Fort Augustus in general, it would not have been proportionate to designate survivors claiming to have been abused at Fort Augustus as core participants. But they were so designated.

The chair, designated the Fort Augustus survivors some time after Mr. Emmerson's speech which Ms. Karmy-Jones quoted. So she clearly thought she had the right to conduct a general investigation of Fort Augustus and has held that view for some time. It would definitely have been disproportionate to make designations of survivors of abuse at in institution outside the scope of the inquiry. So this proposal not to investigate Fort Augustus in general can't possibly be down merely to a clarification of the intentions the inquiry had all along. This is a definite proposal to change the scope of the investigation.

And the question has to be asked why the decision to propose this change? An obvious answer is that the inquiry is under-resourced and behind schedule, and needs to jettison as many investigations as it can get away with. But if that were true, they wouldn't be able to say so because Professor Jay has promised that the inquiry scope wouldn't be reduced. So they have tried to reduce the scope while kidding everyone (including themselves) that they are doing nothing of the sort. It won't do.

IICSA and publicity

At the hearing on Tuesday, about the only time Professor Jay said anything at all was to condemn the press coverage of the proposal to drop Ealing and Fort Augustus.

When the issue of press coverage was first raised by Ms. Karmy-Jones, Counsel to the inquiry,  Professor Jay. had the following to say, as recorded in the transcript
I want to comment here. We were indeed concerned to see the press coverage. It seemed to suggest that I had made a decision to exclude Fort Augustus and Ealing Abbey. I would like to make it clear that I have not made any such decision.
The only problem is that this isn't what the articles said. The Sunday Post said "Last week, Fort Augustus Abbey was left off the list of schools to be examined by the IICSA later this year." which is strictly correct. The CTI submission did have a list of schools to be examined later this year, and Fort Augustus was not on it. However the end of the article did make it clear no final decision had been made. The last word was given to an IICSA spokeswoman, as follows.
A spokeswoman for the IICSA said the institutions to be examined were still not set in stone – despite the new proposals. She said: “No decisions of any sort have been made about the matters to be considered at the hearing.”
Can't be much clearer than that.

The Times was even more careful in its coverage, saying:
Next week lawyers for Alexis Jay, chairwoman of the Independent Inquiry into Child Sexual Abuse (IICSA), will propose that no evidence be called about decades of abuse of pupils at Ealing Abbey and its adjoining independent school, St Benedict’s.
See that word "propose"? That's not an indication that a decision has already been made. And the Times also carried a response from the IICSA, as follows.
A spokesman for the IICSA said: “No decisions have yet been made about the matters to be considered at the Benedictine hearing that is due to start later this year. Submissions will be heard from inquiry counsel and core participants about this at the preliminary hearing.”
So it's a bit rich for Professor Jay in the hearing itself to complain that it had been suggested that a decision had already been made when both papers went to the trouble of making it clear that a decision hadn't been made. I don't think that Professor Jay deliberately lied in her role as chair, especially in a formal hearing, so I'm going to assume that Professor Jay, in her annoyance that the matter had been made public, was careless in her reading of the articles or careless in her characterisation of them. More care really is needed.

Ms. Karmy-Jones also went on at greater length about this, and part of what she said concerned the effect of the news articles on survivors.
... they are unfortunate, not least because of the very real distress that they will have caused a number of individuals, including core participants and potential witnesses to these matters.
I notice some vary careful wording here, about the distress "they will have caused". Not "they have caused", but "they will have caused". I rather suspect she doesn't have evidence that survivors have been caused distress by the newspaper articles, and of course she mustn't lie . What caused the distress was her own submission to the inquiry (accurately reported) proposing that Ealing and Fort Augustus be dropped. It was in all probability leaked to the press by survivors in their anger at the proposals, and I know for a fact that survivors of my acquaintance were very pleased to see the matter aired in public. One survivor has written to me as follows.
It is not stretching the truth to say that the grotesque proposal to drop Ealing because a trial might be prejudiced by testimony to the IICSA from victims of Benedictine abuse over at least six decades is what caused us all no small distress. Contrary to the IICSA’s opinion that the newspaper articles upset us, we welcomed the media exposés of this monumentally stupid proposal on the IICSA’s part. I spent a few days back in very dark places in my mind as PTSD and the urge to react with extreme violence — as I so often did as a young man — took a brief hold of me. I am afraid that I now see some of the individuals staffing the IICSA more as unwitting allies of pedophiles than of the core participants they should be treating with some modicum of respect.
That is an indication of the extent to which the proposals have caused very real anger among survivors. The Shirley Oaks Survivors Association has already withdrawn co-operation with the inquiry. The high-handed approach of the inquiry is alienating survivors and it's going to have to stop while they still have any survivors willing to participate in the public hearings.

Tuesday, 6 June 2017

Statement following June 6th IICSA Hearing

Today, the inquiry has been discussing a proposal from its own senior lawyers that events at two monasteries and their attached schools should be excluded from the Roman Catholic investigation.
The reason given for dropping Ealing Abbey is a scheduling clash with the forthcoming criminal trial on child abuse charges of a former senior Benedictine monk. The date of this trial has been known to the inquiry for almost six months. The reason given for dropping Fort Augustus is that it is in Scotland, even though it was run by the English Benedictine Congregation and therefore the institutional failure is that of an organisation based in England.

If Professor Jay adopts this recommendation from her senior legal team, she will break a public promise not to reduce the scope of the inquiry’s investigations, made when she was first appointed chair.

There are two troubling aspects to this proposal. The first is that the inquiry’s lawyers thought that a reduction in the scope of the inquiry was an appropriate response to a date conflict for a hearing not due to start for a further five months. It gives the impression that the inquiry is more interested in its own convenience than in a determination to seek the full truth about abuse in the Roman Catholic Church.

Second, the proposal was made a month ago and the inquiry intended that it would remain secret until today's hearing. They expected that abuse survivors from both Ealing and Fort Augustus would co-operate in keeping quiet about a proposal which jeopardises their right to give their evidence in open hearings. The inquiry had no moral right to ask this of them, and inevitably there have been some stories in the press.

The inquiry’s response to these stories has been to demand that, as a condition for receiving further documents, survivors sign a confidentiality undertaking that bars them from speaking in public about any document on any subject that they receive from the inquiry. This is a ludicrous over-reaction, and contrary to the Home Secretary’s explicit instruction to conduct the inquiry with the maximum possible degree of transparency.

In some cases, child sex abuse has not been discovered promptly in part because institutions have used onerous confidentiality obligations to prevent whistleblowers from disclosing concerns which would cause unwelcome publicity. It is ironic to see the inquiry displaying precisely the habits it will have to investigate and expose in others.

This inquiry is extremely important and I want to see it succeed. To do so, it must retain the confidence of the survivors whose evidence will be central. This sorry sequence of events could hardly have been better at undermining their confidence had the inquiry been acting with that deliberate aim in mind.

IICSA and Confidentiality

As, you'll have seen from the previous blog article, I have serious issues over the IICSA's atitude to secrecy. Here are some questions I put to Martin Smith, Chief Solicitor to the IICSA, via my solicitor.

1. What is the legal ground for the Inquiry's demand that I provide a confidentiality undertaking?
(Note: I wholly accept the need to maintain the statutory right of victims to anonymity under the Sexual Offences (Amendment) Act 1992 and I have no intention of breaching that right. That right however exists independently of the Inquiry and is not affected by the presence or absence of a confidentiality undertaking. The Act is however irrelevant to any information that might be provided by the Inquiry that does not disclose the identity of victims, and so the requirement for a general confidentiality undertaking is disproportionate to the aim of assuring victims' anonymity where this has not already been waived.)

2. What legal grounds does the Inquiry have for refusing to provide documentation to a core participant in the absence of such an undertaking?

3. The terms of reference to the inquiry require you to "Conduct the work of the Inquiry in as transparent a manner as possible, consistent with the effective investigation of the matters falling within the terms of reference, and having regard to all the relevant duties of confidentiality". Given this instruction from the Home Secretary, and subsequent emphasis by the Home Affairs Select Committee and others on the importance of transparency in this inquiry, what practical justification is there for imposing on core participants a blanket duty of confidentiality over "all documentation provided ... by the Panel, their secretariat or legal team"?

4. The previous chair of the Inquiry, Justice Lowell Goddard, said in her opening statement on 9 July 2015: "When I accepted my appointment, I said that I was committed to ensuring the Inquiry’s work would be conducted as transparently as possible, and that I would make public statements at regular intervals so that it does not become remote from the public it exists to serve. The principle of transparency is reflected in the terms of reference for the Inquiry and I intend to ensure that this is faithfully implemented. Some aspects of the Inquiry’s work are of course confidential for good reason. However, I am determined to put as much information into the public domain as I properly can, as soon as I can." Has there been any change from this position by the current Panel, and if not, in what way is the demand for a blanket confidentiality undertaking by the Inquiry consistent with this publicly stated approach?

5. In the example of the submission from CTI to the chair about Ealing Abbey etc which will be discussed at the hearing on 6 June, in what way is a requirement to keep this document confidential justified given the Terms of Reference and the promise made by the previous Chair? In other words, what harm is done to "the effective investigation of the matters falling within the terms of reference"?

6. In an article in the Guardian in November 2014, before the inquiry was made statutory (, I emphasised the need for transparency, stating "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." Given the very real and justified reasons for abuse survivors to mistrust those in authority (including the Inquiry itself), have you considered the psychological effect on survivors of requiring them to sign what will be interpreted by them as a gagging order?

7. You should note that from their point of view this requirement will almost certainly be regarded as a hostile act which will undermine their trust in the inquiry.  Their interpretation of this hostility (which exists whether or not you consider it to be rationally based) will hardly be lessened if the documents they are required to keep confidential include proposals that adversely affect their right to be heard in public hearings. In light of the need to maintain the trust of the survivors, have you considered the extent to which such confidentially requirements are likely to be profoundly counterproductive to the work of the Inquiry?

8. Whatever the legal justification (or lack thereof) I can see a practical need to ensure that evidence to be put before the inquiry is not raked over in the press prior to the Panel hearing it. As a practical measure I would have no objection to giving a confidentiality undertaking with regard to evidence not yet in the public domain that will be put before the inquiry in public hearings, until such time as documents containing this evidence are referred to in hearings and are thereby made public. In your view, would such a modified declaration for core participants be a reasonable approach to this matter, and if not, why not?

9. Given both the importance of the subject matter of this Inquiry and the very large sums of public money being spent on it, there is a strong public interest in ensuring that the Inquiry can be held to account by the public in its conduct, notwithstanding its independence from government. Therefore there is a strong justification for making public documents that relate to the Panel's conduct of the inquiry, such as (in the current case) proposals to reduce the previously publicly stated scope of the Inquiry's investigations. What countervailing justification can you offer for requiring that such documents be kept confidential even for a limited time?

10. Have you consulted with the Victims and Survivors Consultative Panel regarding this aspect of the Inquiry's engagement with survivors, and did you follow any advice they gave? If not, why not?

11. Please ensure that the VSCP's advice is sought prior to giving your response to the issues raised above, since this issue falls squarely within the VSCP's terms of reference in providing advice to the Inquiry on how to relate to survivors.

12. Please note that I as a core participant will not accept a response from the Inquiry on these points that is marked "Private and Confidential". These points are not confidential and are part of a conversation in which there is an entirely justified public interest, and I will not correspond on a private footing on public interest matters. There is and can be no question of my approaching you for some kind of consent to publish your reply or any future correspondence on this topic.

Martin Smith sent a reply. It was addressed to my solicitor and marked "Strictly Private and Confidential".

Because I'm barred from receiving documents from the inquiry unless and until I sign the confidentiality undertaking, he had to check with Smith whether I was in fact permitted to see his reply at all. Eventually it was confirmed that I could see it. I'll publish and comment on it as soon as possible. It's pure Sir Humphrey Appleby.

The Secret Child Abuse Inquiry

(I was originally intending publishing this last Friday. I received legal advice to the effect that the Inquiry might want to take sanctions against me for breach of confidentiality even though all the key facts mentioned below were already in the public domain. So I've decided to wait until the proposal mentioned below becomes public by being mentioned in the June 6th Inquiry hearing. At the time of publication, the proposal has been made to the inquiry but the Chair has not yet made a decision. It's a sad state of affairs that the Inquiry appears to be hopping mad that I've offered a quote to the papers about a subject that was already known about.)

Last Tuesday a piece appeared in the Times about a proposal by the IICSA to drop Ealing Abbey and Fort Augustus Abbey from the scope of the public hearings. Back on May 14 the Sunday Post in Scotland published a similar article.

The Times of course knows I'm a prominent campaigner about abuse at Ealing Abbey, we go back to when they ran a splash about the abuses there way back in April 2010. So they contacted me for a quote, which I was happy and perfectly entitled to provide, essentially that it would be a very bad idea to drop Ealing and would break a public promise made by Professor Jay not to reduce the scope of the inquiry.

This is the situation.

The Inquiry is aware that its scheduled dates for the hearing on Benedictine abuse (starting on November 27th and running for 3 weeks) are slap bang in the middle of the scheduled dates for the trial of a senior Benedictine (scheduled to start on 2 October and last for 3 months). He is entitled to a fair and unprejudiced trial and clearly this is at risk if IICSA is holding public hearings into child sexual abuse at Ealing during the trial of a senior Benedictine monk on charges of child sexual abuse allegedly committed while he was living at Ealing. So the Counsel to the Inquiry has proposed that Ealing is dropped altogether, or alternatively that the inquiry waits until after the trial to see whether there is a need for a separate hearing for Ealing afterwards. In addition it is proposed that Fort Augustus be dropped altogether because it is in Scotland, and the inquiry's scope is limited to England and Wales. This proposal is due to be discussed at an inquiry hearing on 6th June after which the chair will make a decision.

It seems that certain people at the inquiry are somewhat cross that this has leaked out, and are also cross at me for having been quoted on the subject, even though the Times contacted me, I didn't give them the document, the story was out in the public domain well before.

There are two troubling things about this proposal. The first is how staggeringly ill-advised it is, and the second is the fact that the inquiry wanted and expected the proposal to be kept secret until the hearing on 6th June.

Let me first describe why this is a thoroughly bad proposal.
  • Ealing Abbey and events specific to it have already been written into the scope of the Roman Catholic investigation. (Look particularly at section 3.1.4.)
  • Professor Jay has previously publicly promised that the scope of the inquiry will not be reduced. She is quoted on the Inquiry website saying "I want to reassure victims and survivors that the panel will not be seeking any revision of the Inquiry’s terms of reference or introducing any new restrictions on its scope." The proposal to drop Ealing (if adopted) will break that public undertaking.
  • Events at Ealing are central to understanding how the Roman Catholic Church responds to abuse, because Ealing has received more sustained scrutiny than any other Benedictine house. It has had an emergency unannounced inspection by the Independent Schools Inspectorate, it has had two Statutory Inquiries by the Charity Commission, two of its own "independent inquiries" (one by Lord Carlile) and an Apostolic Visitation organised by the Vatican, plus probably more publicity than any other Benedictine house.
  • On the basis that Ealing is within the scope of the Roman Catholic investigation, several survivors and others have been designated as Core Participants and have been preparing themselves on the understanding that they would be giving evidence in public hearings.
  • No justification beyond the fact of the date clash has been given for the proposal to drop Ealing.
  • When the Inquiry announced on 27 April the dates of the Benedictine hearings, they already knew about the date clash with the criminal trial. I had warned them via my solicitor as soon as I learned of the trial dates on 20 January - three months before. My solicitor contacted the inquiry the same day because we knew from Professor Jay's review that they were thinking of December for these hearings. They had plenty of notice of the clash and could perfectly easily have set a different date that avoided it.
  • Fort Augustus, even though it is in Scotland, was previously decided to be within the scope of the inquiry because it was run by the English Benedictine Congregation, which as an organisation based within England and Wales is within the scope. The determination for CP status for White Flowers Alba (an umbrella group for Fort Augustus survivors) published on 16 August 2016, includes this "The individual members of White Flowers Alba whom I have designated as core participants experienced sexual abuse in Scotland by members of the English Benedictine Congregation, or in one case, by clergy from a Catholic Order whose headquarters is in England. While the individuals experienced sexual abuse in Scotland, which falls outside the Inquiry’s terms of reference, the alleged institutional failure relates to an institution based in England and Wales."
  • Not only did abuses occur at Fort Augustus but monks were sent there from Benedictine houses in England after they were known to have abused elsewhere. For instance Richard White (aka Fr Nicholas White) was sent to Fort Augustus from Downside, after he had been found on two separate occasions to have abused pupils of Downside School. This connection can't be properly investigated if Fort Augustus is taken out.
  • Survivors and others from Fort Augustus have been designated as Core Participants and have a reasonable expectation that they would be giving evidence.
The inquiry's alternative proposal, that a separate hearing for Ealing might be held later, is not much better.
  • Even hearings restricted to the other houses can hardly avoid the risk that public hearings into Benedictine child sex abuse might prejudice the trial of a senior Benedictine monk on child sex abuse charges.
  • There are some differences between how Ealing and the other houses have addressed the crisis. For instance Ealing adopted Lord Carlile's recommendations on governance and the other houses ignored them. Those in charge of the other houses can hardly be asked about this without any mention of Ealing, risking greater prejudice to the trial.
  • They also can't be asked about this at a later hearing just for Ealing because they won't be there!
How the Counsel to the Inquiry (i.e. the senior barrister for the Roman Catholic investigation) didn't think of all this for herself is quite frankly beyond comprehension.

But even more troubling is that the core participants whose right to engage in the public hearings was being jeopardised were expected to keep quiet about this. It was clearly an unrealistic expectation and so the knowledge of the proposals quickly got into the press, initially in Scotland. But did the Inquiry have any moral right to expect confidentiality in the first place? After all, the Terms of Reference include the requirement to:
Conduct the work of the Inquiry in as transparent a manner as possible, consistent with the effective investigation of the matters falling within the terms of reference, and having regard to all the relevant duties of confidentiality.
How can this possibly be consistent with maintaining secrecy over a key proposal to change the scope of the inquiry's investigations, breaking previous public promises to the contrary?

It gets worse. Since the Times article was published, I have been advised through my solicitor that the IICSA is saying that further documents relevant to the hearing on June 6th cannot be disclosed to me unless and until I sign a confidentiality undertaking. I understand that this requirement is being imposed on all core participants. The document requires that I promise to treat as confidential:
"... all documentation provided to me and/or my representatives by the Panel, their secretariat or legal team, (whether it is provided to me / my representatives in hard copy, electronic form or otherwise)"
I've refused to sign it. If I were to sign it, the confidentiality undertaking itself would become part of the "documentation provided" by the Inquiry and I would not even be able to disclose the fact that I had received it and was bound by it. So I'm blogging about it now when I haven't signed it and am still at liberty to talk about it.

In case you though this might be a mistake, a bit of over-zealous drafting, the lawyers for the core participants have been told the following by the inquiry, and so this is what I've had confirmed the confidentiality undertaking requires of me.
"For the avoidance of doubt, the confidentiality undertaking covers not only material disclosed via Relativity but also all communication from the Inquiry to core participants, including any documents circulated by email or letter. In order for you each to circulate the attached submissions to others within your teams and to your clients the Inquiry also needs to have received signed undertakings from whoever they will be provided to."
That's the inquiry's version of transparency.

Clearly there are categories of documents that should be kept confidential. I'm not suggesting that everything should be open. For instance documents that identify victims of abuse who haven't waived their statutory right to anonymity clearly must remain confidential until the identifying information has been redacted. Also it's pretty obvious that documents containing evidence to the inquiry shouldn't get raked over in the press before the Panel has had a chance to consider them. My solicitor can probably think of some more categories of documents where the principle of confidentiality is justified, and I'm quite relaxed about some things being kept confidential where there is a clear justification either in terms of protecting survivors or in terms of ensuring the Inquiry can carry out its investigations properly.

The documents I'm now being refused access to include the other parties' responses to the proposal to drop Ealing and Fort Augustus. These aren't in any way sensitive. It's vanishingly unlikely that they contain any specific evidence, we aren't at that stage yet. But this means that I, a core participant for the Roman Catholic investigation, can't prepare for the hearing on 6th June and therefore can't properly instruct my solicitor, because the necessary documents have been withheld from me by the inquiry. This is outrageous.

A blanket requirement to keep everything confidential runs the risk of being abused. The temptation will be to use the blanket requirement to protect the inquiry from justified public scrutiny as to how it is going about its business. In fact, arguably that has already happened when the Inquiry expected the proposal to drop Ealing and Fort Augustus from the inquiry to be kept secret, and is could easily now happen with the attempt to impose a confidentiality undertaking on everyone as a condition of receiving any further non-sensitive documents.

One of the key issues the inquiry will have to address is the habit of organisations to use confidentiality requirements to prevent whistleblowers from disclosing their concerns about wrongdoing or bad practice to the civil authorities.

The Inquiry appears to have acquired precisely the habit it is going to have to investigate and expose in others. How ironic is that?

Sunday, 4 June 2017

IICSA Preliminary Hearing

IICSA will be holding a preliminary hearing about the Benedictine strand of the Roman Catholic Church investigation on Tuesday 6th June.

There has already been some news about it.

From the Times: Child abuse inquiry set to drop investigation into Ealing Abbey monks
From the Sunday Post: Fury at sex abuse inquiry snub: Ex pupils ‘devastated’ by bombshell U-turn

I'll be blogging as soon as possible after the hearing. For legal reasons, I'd better not do so until then.

Watch this space.