Justice Lowell Goddard’s resignation as the Chair of the Independent Inquiry into Child Sexual Abuse has taken us by surprise, but it should not have done. Over 2 years have now passed since Theresa May announced the inquiry, and so far it has achieved almost nothing tangible at all, except to lurch from crisis to crisis: it has now lost with 3 chairs, various “panel members”, and an unquantifiable tranche of written evidence submitted between 14th September and 2nd October last year which was “instantly and permanently deleted” due to a computer malfunction.
In due course it may become clear whether the new Home Secretary, Amber Rudd, pushed her, or whether Goddard simply decided enough was enough: the news yesterday that she had spent 70 days of the last year out of the country, suggests that she had little appetite for the job and my hunch is that she simply decided to walk away.
The theory that she may have been elbowed out rests partly on the fact that in her remarkably curt resignation letter she signed herself off as “Hon. Dame Lowell Goddard QC”.
Joshua Rozenberg has pointed out that High Court Judges in England drop the letters “QC” on appointment, and he assumes (correctly) that New Zealand judges do the same. Since Goddard would know how she should be addressed, Rozenberg’s theory is that the letter was drafted for her by some Home Office official not au fait with the niceties, who then handed her the letter and left her in a metaphorical library with a bottle of brandy, a pen and the expectation that she would do the decent thing.
But I don’t think he is right. Dame Lowell is no longer listed as a serving Judge on the official website of the New Zealand judiciary, so it may be that the tricky etiquette of how to address a former New Zealand Judge seconded into another jurisdiction to do the job of an inquiry chair is still a chapter waiting to be written in Debretts Modern Manners. If one must read things into the wording of her letter (and I would prefer not to), it seems more striking to me that it is addressed simply to:
The Rt Hon Amber Rudd MP
2 Marsham Street
If someone in the Home Office had drafted the letter then it is a bit odd that they would have omitted the post-code, the inclusion of which would be second nature to a Home Office civil servant, though perhaps not to Goddard herself.
But whoever drafted the letter, the fact is that she was right to resign.
Bluntly, and even before any evidence had been heard, it was becoming apparent that she simply wasn’t up to the job. Until now her most celebrated case was Howse v. R  UKPC, a thoroughly nasty child murder trial. Unfortunately she made a horlicks of it by admitting a shed-load of inadmissible evidence, before delivering a summing-up in which, to quote the restrained words of Lord Carswell:
“… she spent very much longer than was desirable … with a description of the killings in terms which were unduly emotive and capable of fuelling prejudice.”
The result was that, in the words of Lord Rodger and Sir Andrew Leggatt:
“It is impossible to imagine a clearer example of a trial that has gone off the rails ….”
If you substitute the word “inquiry” for “trial” their words seem equally apt today. How it was ever thought that a judge who made such a mess of a murder trial was a suitable candidate for this behemoth of an inquiry is difficult to understand.
Trying a murder trial is a difficult enough task to be sure, but holding the ring between prosecution and defence, applying the law and summing up the facts to a jury is simplicity itself compared to chairing a public inquiry in which large numbers of participants are constantly jostling for attention and demanding decisions. An inquiry chair is constantly required to make decisions about the procedure and strategic direction of the inquiry, while at the same time evaluating and concentrating intently on the evidence in order to write a worthwhile report at the end of it all. It is gruelling and exhausting work when the subject matter is the route for a new motorway. When it concerns terrible and emotive accounts of child abuse it requires a very special person to handle it successfully.
And in the last few days – even before she had heard a word of evidence – Goddard’s incompetence had become embarrassingly obvious, not just to lawyers involved in the inquiry, but to journalists watching from the sidelines. The Times’ Sean O’Neill wrote a story last week about the Judge’s apparent inability to understand the law which allowed her to impose reporting restrictions:
“The incident compounds fears in legal circles that Justice Goddard is insufficiently familiar with British law and institutions to lead an inquiry of this scale and complexity.
Under her leadership IICSA’s progress has been slow and expensive. More than a year after her opening statement it has taken no evidence and will not do so until next year. However, it has hired 155 staff and opened offices in London, Liverpool, Darlington and Cardiff.”
Joshua Rozenberg, who also watched Goddard’s performance, thought that O’Neill’s assessment was “if anything too generous to her.”
The fundamental problem is that the terms of reference of the inquiry, established by Theresa May when she was Home Secretary, are stunningly wide:
“To consider the extent to which State and non-State institutions have failed in their duty of care to protect children from sexual abuse and exploitation; to consider the extent to which those failings have since been addressed; to identify further action needed to address any failings identified; to consider the steps which it is necessary for State and non-State institutions to take in order to protect children from such abuse in future; and to publish a report with recommendations.”
For practical purposes there are no limits. There is no cut off point at, say, ten, twenty or forty years. There is no limit to the numbers of institutions that have to be investigated, there are a number of organisations that the inquiry has indicated are “for example” within its scope:
Even this is not an exclusive list. Any proper inquiry into just one of these organisations is capable of lasting years, yet the IICSA is supposed to investigate all of them, and others too. Quite simply, it cannot be done, at least not by the inquiry in its current form and I suspect that Justice Goddard has resigned because she has belatedly realised as much.
She was the third chair of the inquiry. The first, Lady Justice Butler Sloss, was a highly regarded judge: she resigned after it was suggested – on the flimsiest of evidence – that her brother had protected political paedophiles. The second, the City solicitor Fiona Woolf, was an astonishing appointment, not least because she had no judicial experience beyond sitting as a part-time magistrate: she too resigned after it was suggested that she was too close to Leon Brittan (who was at the time under formal investigation for sexual offences by the Metropolitan Police).
The new Home Secretary, Amber Rudd has a dilemma. Does she scrap the existing inquiry – 155 staff and all – and start again, or does she try to continue?
She has said that it will continue, but to do that she will need to find another Chair. Of course it may be that she has planned Goddard’s resignation, and if so she presumably has someone waiting in the wings. Rozenberg suggests that the current counsel to the inquiry, Ben Emmerson QC could step up to the bench and chair it. “He’s a fearless lawyer and knows much more about the inquiry than anyone else. Goddard included.” That is true but I doubt that Emmerson – one of the country’s leading human rights lawyers – would want the job. After two years of thankless effort it would not be altogether surprising if he too was looking for a way out. And even if he did accept it, she would then need to find another counsel to the inquiry, which would pose a whole new set of problems.
If she doesn’t have a substitute already jogging up and down the touchline it is very hard to see where she will find one now. I suspect that practically all English High Court judges – including the likeable and immensely capable Lady Justice Hallett, Rozenberg’s other recommendation – were considered before Goddard’s appointment, and all of them were either ruled out on the basis that they were too close to people who might be inquired into, or simply “too close to the establishment” (all judges are, by definition, pillars of “the establishment”), or they declined the invitation. Very few judges or high-flying QCs would now want to be associated with – to change the sporting analogy – this rain-affected-timeless-test of an inquiry which has already made Chilcot look like a 20:20 thrash under the floodlights. Perhaps somewhere in the English speaking world there are judges who would be persuadable; a £500,000 p.a. package will sugar the bitterest of pills. At a pinch she probably even has the power to appoint an unwilling English judge. But it’s no good choosing yet another Judge who is either unable or unwilling to see it through.
Any new Chair she does find will not want to be bound by decisions made by Goddard. He or she will need to make changes, for example, to the procedure that the inquiry adopts when dealing with disputed claims of sexual abuse, such as those involving Lord Janner. At the moment the investigation into Lord Janner is anomalous: the other 13 “investigations” are into institutions: Nottinghamshire Council, Lambeth Council, The Anglican Church and so on. The inquiry website says that:
“The investigations will give a voice to victims and survivors of child sexual abuse, enable the Inquiry to understand how institutions have failed to protect children from sexual abuse and make practical recommendations to ensure better institutional protection for children in the future.”
That is all very well so far as “institutions” are concerned. Nobody can seriously doubt that child abuse took place within the Church, or within homes operated by councils. But Lord Janner is not an institution he is, or was, an individual. His guilt or otherwise is very hotly contested, yet the fact that he is being included in a project designed to “give a voice to victims and survivors” seems to presuppose that his accusers are victims. This is a recipe for muddle and unfairness.
It is worth remembering how the inquiry came about in the first place. It was announced the day after Leon Brittan was interviewed by the police on suspicion of rape (the fact of the police interview was publicised). That allegation went nowhere, although the police decided not to tell Lord Brittan that before he died. Allegations were also swirling around about other MPs, some of which may have been true but many of which have since been shown to be false or at least highly dubious. Even Tom Watson, one of Brittan’s main tormentors, has apologised to his widow for describing him, disgracefully, as “as close to evil as any human being could get.” It turned out he wasn’t actually very close to evil at all; and nor for that matter was Harvey Proctor, or Ted Heath or Lord Bramall, although all three have had either their lives or their reputations blighted, whilst their accusers have turned out to be deranged, deluded or deceitful.
Now that the allegations against Brittan, Heath, Proctor and Bramall have been exhaustively investigated and found wanting, an inquiry that was set up largely on the basis that there had been some sort of “VIP paedophile ring” needs at least to acknowledge the possibility that politicians and others in public life are not – as conspiracists were telling us – part of an “elite” protected by a code of omerta, but are in fact just as vulnerable to false accusations as anyone else, and in some ways more so. It would be strange if an inquiry set up partly on the basis of false innuendoes were to continue merrily on its way under a new Chair without any real recognition of the fact that some of those claiming to be the victims of VIP abuse were in fact nothing of the sort.
One way or another this blighted and jinxed inquiry needs a complete reboot. Either Ms Rudd must come up with a new Chair with the authority to radically change its methods and direction, or she must have the courage to turn to her new boss and say “Prime Minister, you set this inquiry up with the best of intentions, but I’m afraid it can’t work; I’m going to tear it up and start it again.”