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.