THE CLOWN SHOW GOES ON

Appointment of the Child Abuse Inquiry Panel was irrational and irregular. The Panel must go.

Theresa May and Fiona Woolf have both told us that the Child Abuse Inquiry can be converted to a statutory inquiry if the Chair who replaces Fiona Woolf (or maybe the one after that) requests that the Inquiry be converted to a statutory Inquiry.

Let’s assume that the aim is to permit conversion to a statutory inquiry.

If it is the aim to create a statutory inquiry, then it seems to me that there are very real problems with the appontment of the current Inquiry Panel.

If my analysis is correct, then the current Panel must go.

A statutory inquiry in this context refers to an inquiry conducted in terms of the
Inquiries Act 2005

It seems to me that Section 9 of the Act is highly problematic for the notion that the Inquiry can be converted to a statutory inquiry if the current Panel stays in place.

I’ll try to explain why I’ve reached the conclusion that the appointment of the current Panel is irrational and irregular and that it precludes conversion to a statutory inquiry if the current Panel remains.

Here is what Section 9 says:

9 Requirement of impartiality

(1)The Minister must not appoint a person as a member of the inquiry panel if it appears to the Minister that the person has—

(a)a direct interest in the matters to which the inquiry relates, or

(b)a close association with an interested party,

unless, despite the person’s interest or association, his appointment could not reasonably be regarded as affecting the impartiality of the inquiry panel.

(2)Before a person is appointed as a member of an inquiry panel he must notify the Minister of any matters that, having regard to subsection (1), could affect his eligibility for appointment.

(3)If at any time (whether before the setting-up date or during the course of the inquiry) a member of the inquiry panel becomes aware that he has an interest or association falling within paragraph (a) or (b) of subsection (1), he must notify the Minister.

(4)A member of the inquiry panel must not, during the course of the inquiry, undertake any activity that could reasonably be regarded as affecting his suitability to serve as such.

Subsection 9(1) is of crucial importance to my concerns so I’ll repeat it here to make reading easier.

(1)The Minister must not appoint a person as a member of the inquiry panel if it appears to the Minister that the person has—

(a)a direct interest in the matters to which the inquiry relates, or

(b)a close association with an interested party,

Notice that the decision as to the suitability of a Panel Member is to be made by the Minister, in this case the Home Secretary.

The letters from Panel members give their assessment of their background. That is not the test. It is for the Minister to decide.

Self-assessment by Panel members is inappropriate and irregular in my view.

More importantly it seems to me that at least some of the letters from Panel members are dishonest.

I assume that these problematic letters were produced with legal advice, possibly from Ben Emmerson QC, counsel to the Inquiry.

Ih their letters some members of the Panel refer to section 9 in their self-assessment exercise and decide they don’t have a problem.

But when Panel members have had employment in the sector, don’t they have a “direct interest” in “the matters to which the inquiry relates”?

In my view they do.

And what about the survivors? Don’t they have a “direct interest” in the “matters to which the inquiry relates”?

In my view they do.

Another problem with the letters from the Panel members is that they are, in my view, irrational.

The test in Subsection 9(1)(b) disallows Panel membership if a prospective Panel member has a “close association” with an “interested party”.

This issue was the basis for some of the furore about how close (or not) Fiona Woolf’s relationship was with Leon Brittan.

Although  nobody close to the Inquiry used the term, the implicit assumption was that Leon Brittan was an “interested party” to the Inquiry.

So who are the “interested parties” to this inquiry?

I don’t know.

Nor, I suspect, does Ben Emmerson QC.

Nor, I suspect, do any of the Panel members.

I suspect that no list of “interested parties” exists.

The consequences of the list of “interested parties” not having been defined are important.

Even if the Panel members’ letters were correct in assuming self-assessment was valid, they can’t rationally self-assess whether they have a “close association” with an “interested party” since nobody knows who the “interested parties” are.

Nor, can the Minister currently apply the test in Subsection 9(1)(b) at the moment for the simple reason that Theresa May doesn’t know what the list of “interested parties” might turn out to be.

So Theresa May has no rational basis to decide whether any current Panel member can remain in place if the Inquiry is converted to a statutory inquiry.

Nor, currently, can Panel members fulfil the requirements of Subsection 9(2):

(2)Before a person is appointed as a member of an inquiry panel he must notify the Minister of any matters that, having regard to subsection (1), could affect his eligibility for appointment.

To do that a prospective Panel member has to know who the “interested parties” are. They currently don’t..

And, if I’m correct that no list of interested parties exists, then no Panel Member can have fulfilled the requirements of Subsection 9(2)

Being blunt, the appointment process has been a mess from the start.

It seems to me that the current Panel must go.

To allow ratonal appointment of a replacement Panel the Home Office must compile a list of “interested parties.”

Are “interested parties” individuals (think Leon Brittan) or organisations?

Has anyone addressed that fundamental question. Not so far as I’m aware.

In light of recent failings by the Home Office I suggest that a draft list be published to allow, for example, the Twitterati to add names or organisationis to the list.

Once a list of “interested parties” exists the issue of who does or does not have a “close association” with “interested parties” can be rationally decided.

Some will, no doubt, complain about the consequences of an approach that is Section 9 compliant.

I don’t see any insuperable problem. The “Public Panel” notion is how I would solve the desirable situation of involvement of the survivors and other interested individuals or researchers.

The current Panel must go.

A new, improved version of the Child Abuse Inquiry is needed.

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