Tuesday, 6 June 2017

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?


  1. Jonathan, thank you for posting this - it is right that these facts are known. You have also done the right thing by refusing to sign the confidentiality agreement. And your cogent analysis perfectly shows why these decisions hamper tje enquiry's own terms of reference.