Like everyone who has ever met or appeared professionally in front of her, I have huge admiration for Baroness Butler-Sloss. She is polite, humane, clever and immensely experienced. She radiates wisdom. All of these are qualities that mark her out as one of the outstanding judges of her generation. But her position as the judge chairing the child abuse inquiry is completely untenable.
A central point of the exercise is to address the concern that there was an establishment cover-up of child abuse, in particular by Mrs Thatcher’s government in the 1980s. There may not have been a cover up at all – in fact bearing in mind the ubiquity of incompetence and the rarity of conspiracies I would be astonished if anything of the sort happened – but if there was, one of its chief architects is said to have been Butler-Sloss’s late brother, Michael Havers, who was Mrs Thatcher’s Attorney-General and, briefly, Lord Chancellor.
Hardly anyone supposes that Butler-Sloss is in fact biased. But that is not enough. Judges must be above any suspicion of bias. For Butler-Sloss to investigate the behaviour of her own brother is about as spectacular a breach of that principle as one can imagine. It is as if Tony Blair’s highly regarded brother, Mr Justice William Blair, had been charged with investigating the origins of the Iraq war.
There is a second reason why Butler-Sloss is a very peculiar choice. She is 80 years old. Of course that in itself is no reason why she should not still be an excellent judge (although judges are now required to retire at the age of 70). Until relatively recently it was quite common for them to sit well into their 80s. I can remember appearing in front of Crown Court judges who certainly appeared to me to be at least octogenarians. Some of them were excellent, although others, probably because of increasing deafness, would develop a tendency to bark, irritably demanding that terrified witnesses slow down and “watch my pen,” a baffling injunction that did little to put anyone at their ease.
Lord Denning, arguably – though it would be a pretty heated argument – the greatest judge of the twentieth century, continued to decide cases until he was 83 (and lived for another 17 years after that), although he became increasingly error prone in his final years on the bench.
But it is one thing to decide a succession of appeals in the collegiate atmosphere of the Court of Appeal where sluggish mental acuity can to some extent be covered up or at least out-voted. An appellate judge who has lost the thread of a complex argument doesn’t even need to give a proper judgement. He or she can always resort to saying “I agree and have nothing to add.” It is quite another thing to ask an 80 year old woman to take on a high profile and open-ended public inquiry.
Even if her physical and mental powers are undiminished since she last sat on the bench – and there is no particular reason to doubt it – she is not a superwoman who can expect to live in perfect health indefinitely. And, although it may be a little churlish to point it out, Butler-Sloss’s last essay into a lengthy and difficult case was hardly an unalloyed success. She decided to try the Princess Diana inquest without a jury. Mohammed Al Fayed successfully appealed her decision, which resulted in Butler-Sloss deciding to step down, citing her lack of experience with juries as the explanation.
Public inquiries, of course, have a habit of getting out of control. The Saville inquiry into the events of Bloody Sunday was originally expected to last for a year. In the end we had to wait 13 years for a report. Saville was investigating events that occurred in a single city over the space of a few hours: Butler-Sloss is being asked to investigate events that happened in any number of public institutions, including government departments, schools and children’s homes, over four decades. Even if she proceeds four times as fast as Saville she will be about 250 before she has even dealt with the 1970s. It may well be that the terms of reference of the inquiry are impossibly wide for anyone to handle satisfactorily. But at least a younger person would have a better chance of completing such a Herculean task and might perhaps rattle through it a little quicker.
Of course we do not know why she agreed to take the job. For all we know all the other obvious candidates, and on paper there are many, simply refused to have anything to do with such a potentially poisoned chalice. It would be entirely in keeping with what we know of Butler-Sloss’s character that she would have courageously accepted a task that her younger and more pusillanimous colleagues had declined.
It matters not why she accepted the role; she should never have been appointed and she should step down at once.