I hate to be Cassandra yet again, but Amber Rudd has made the wrong decision in appointing Alexis Jay as the new Chairman (and like it or not, “Chairman” is the word used in the Inquiries Act 2005 under which she has been appointed) of the “independent inquiry into child sexual abuse” (“IICSA”); and Professor Jay was wrong to accept the appointment.
This is not, as some have suggested, because a social worker like Professor Jay is in some way compromised when the Inquiry examines the conduct of other social workers. She has in fact been an inspector of social work since 2005, criticism of other social workers has been her business for some time and she is well qualified to comment on social work failings should she come across any.
Nor is it because of any personal failings. Many of those who have worked with Prof Jay speak highly of her, and her report into sexual exploitation in Rotherham between 1997 and 2013 has been widely praised.
The first observation is well founded. Anyone wanting to understand how the “conservative estimate” of “1400 victims” was arrived at will not be able to do so from paragraphs 4.3 – 4.7 of the report, where Professor Jay discusses how she worked it out. It includes this:
“To help reach an overall estimate of the problem, we used reports to the Local Safeguarding Children Board (formerly the ACPC) and Council committees. We examined minutes of the Sexual Exploitation Forum and minutes of independently chaired Strategy meetings where individual children were discussed. These included inter-agency discussions about hundreds of children who had suffered, or were at serious risk of sexual exploitation. We also had access to lists, and sometimes summary descriptions, of many hundreds of children who were supported by Risky Business [a voluntary organisation working with young people that Jay went out of her way to commend], individually or in group sessions.
If Jay had given the answer “1,400” in a Maths test any half-decent teacher would be bound to put a red line through it and demand that she show her working. “Inter-agency discussions” have their place of course, but nowhere in the report are there more than a few hints as to the numbers that were used to calculate the final figure.
It is also true that there is no acknowledgement in the report that any allegation of abuse could have been false. It might have been better if there had been, and it is true that the report cites a number of disturbing anonymised “case studies” of abuse, most of which were never tested in court. On the other hand, Professor Jay’s remit was not to rule on individual allegations but to report on whether Rotherham Council and others had adequately protected children generally from the risk of sexual exploitation. She was asked to concentrate on the wood and it was probably inevitable that the individual trees would be overlooked.
But whatever the merits or defects of the Rotherham inquiry, the fact is that it was an entirely different beast from the IICSA. It relied upon reading council “case files,” reviewing earlier reports into child sexual exploitation in Rotherham, and interviewing a large number of current and former council officers and employees and representatives of local “agencies,” as well as young people themselves. Such a procedure has much to commend it (not least its speed), but the IICSA, a statutory inquiry under the provisions of the Inquiries Act 2005, is not the same sort of inquiry at all. Although there are various strands – including the so-called “truth project” in which anonymised unchallenged evidence will be collected and reviewed – and although no doubt the Inquiry will generate vast quantities of written material, (it has collected around 35,000 documents when last counted, and heaven knows how long some of those documents are), at its centre will be the public examination and cross-examination of witnesses.
Although the procedure at an inquiry is supposed to be “inquisitorial” rather than adversarial, and although it will be broken down into numerous different sections, there will still be a multitude of different parties all clamouring to influence the content of her final report. Anyone tempted to imagine that an “inquisitorial” procedure is automatically conducted in a less bruising and antagonistic way than an adversarial one need only look at reports of the Hillsborough Inquest to be disabused.
In fact the procedure is not so very different from that of a court hearing a complex, multi-party case. Witnesses will be examined – and in some circumstances cross-examined – by counsel to the Inquiry before being cross-examined by other parties. In fact, the question of whether to allow cross-examination of any particular witness, and if so how much, and perhaps even in some cases even which specific questions can be asked, will be for the Chairman to decide.
At present there are at least 188 (although there could yet be more) “core participants” who have, amongst other things, rights to:
(a) be provided with electronic disclosure of evidence, subject to any restrictions made under S.19 of the Inquiries Act 2005;
(b) be able to make opening and closing statements at any hearing;
(c) suggest lines of questioning to be pursued by Counsel to the Inquiry;
(d) be able to apply to the Inquiry Panel to ask questions of witnesses during a hearing.
This is not an area in which Professor Jay appears to have much experience. Certainly there were no “core participants” in her Rotherham Inquiry, nor was there any cross-examination, nor was anyone legally represented.
How will she deal with the situation in which, say, an institution wishes to make the case that a core-participant complainant or survivor is lying or exaggerating for financial gain? Counsel for the complainant might submit that cross-examination is unnecessary and should not be permitted, or should be heavily restricted. Counsel for the institution would claim that it is unfair, and perhaps even unlawful, to restrict it. “Common sense” does not supply the answers to such dilemmas; one person’s common-sense is another’s flagrant injustice. If she gets the answers wrong there is always the possibility of an aggrieved party seeking to judicially review her decision.
It helps that she is not alone, and not without legal assistance. In fact all her fellow panel members are lawyers: Ivor Frank, is a practising barrister, Professor Sir Malcolm Evans, is a highly respected legal academic (although there is no obvious use for his particular specialism of the law of the sea), and the fourth member, Drusilla Sharpling is a barrister and former Chief Crown Prosecutor for London. Counsel to the Inquiry, Ben Emmerson QC, is an immensely respected barrister, and he is supported by a team of other lawyers.
All this legal back-up is just as well, but it may not be enough. For a start, if Professor Jay has to consult with her panel members on all questions of law, that will slow down the speed at which the inquiry can move. And although the panel members are distinguished in their own right, none of them as far as I know has any actual judging experience. None has yet been awarded the rank of Queen’s Counsel and, with the possible exception of Ivor Frank, it seems unlikely they have had much experience of public inquiries.
So given its lack of relevant experience, we can probably expect the Panel to lean pretty heavily on the indisputable Rolls Royce expertise of Ben Emmerson. They are lucky to have him, but again there could be problems. Even with his supporting legal team, the strain of the inquiry on Mr Emmerson was going to be immense even when the Panel was to be chaired by a professional judge. If his duties are now to be extended to advising the panel on the day to day legal problems, that will only add to it. He is not superhuman and there is only so much work that he can do before either its quality suffers or the strain starts to tell. Moreover, some of the most difficult issues are likely to arise when the QC of a core participant disagrees with Mr Emmerson. Professor Jay will then be asked to adjudicate, without any comparable legal expertise of her own to call upon.
There is another potential problem: relying too heavily on either the legally qualified panel members or counsel to the Inquiry could itself lead the Professor into dangerous territory. The law – principally the Inquiries Act 2005 and the Inquiries Rules 2006 – make it quite clear that decisions of procedure are for the “chairman” of the inquiry to make, not her counsel, and not the Panel as a whole.
Perhaps the knottiest immediate problem that she faces will be how to deal with the proposed investigation into the alleged crimes of Lord Janner. The terms of reference for the Inquiry are:
“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.”
There are 13 investigations (or “investigation modules” as they have been named) planned into, for example, the Anglican Church, the Catholic Church, Lambeth Council, and so on.
Although it is not the function of the inquiry to determine criminal or civil liability, the law and the terms of reference both make it clear that
“this should not, however, inhibit the Inquiry from reaching findings of fact relevant to its terms of reference.”
This could mean, simply, that if while investigating the failings of institutions, where strong evidence is found against individuals the inquiry will not need to fear the making of findings of fact implicating those individuals.
However, one of the 13 planned investigations, and in fact the first scheduled to hear public evidence according to the decision of the little-lamented Lowell Goddard, is not into an institution at all, but directly into the allegations against Lord Janner; or rather, as Counsel to the Inquiry carefully put it last month “into allegations of child sexual abuse involving the late Lord Janner and the institutional responses to those allegations.” There is something awkward about this form of words, as though the round peg of an investigation into Lord Janner were being forced into the square hole of an inquiry into institutions. Investigating an individual would fall outside the Inquiry’s terms of reference, hence the reference to the “institutional responses to those allegations.” The institutions in question are presumably the Police and Crown Prosecution Service which decided against prosecution many years ago, and perhaps the Leicester children’s homes which many years ago allowed him to visit. Yet some of the allegations against Lord Janner were not made until very recently, long after he ceased to be any conceivable threat to children (if in fact he ever was). Is the Inquiry to hear the “new” evidence which is relevant to his guilt or innocence, but can be of no relevance to these “institutional responses”? Presumably it will, because in an investigation into Lord Janner it would be absurd to ignore it. But in doing so it will risk stepping well outside its own terms of reference.
Already there are suggestions that the Janner family may be intending to take legal action to prevent the Inquiry singling him out in this way. It certainly does not weaken their case that the investigation is now to be chaired not by a High Court Judge but by a legally unqualified Professor of Social Work.
Professor Jay has shown great courage in accepting the hospital-pass of this Inquiry but the Home Secretary would have been better advised to use Goddard’s resignation as a reason to wind the whole thing up and start again with a clean sheet. I fear the Professor has bitten off more than she can chew.
1In the interests of transparency I should mention that he is a solicitor who has occasionally instructed me.