Tuesday, 6 June 2017

IICSA and Confidentiality

As, you'll have seen from the previous blog article, I have serious issues over the IICSA's atitude to secrecy. Here are some questions I put to Martin Smith, Chief Solicitor to the IICSA, via my solicitor.

1. What is the legal ground for the Inquiry's demand that I provide a confidentiality undertaking?
(Note: I wholly accept the need to maintain the statutory right of victims to anonymity under the Sexual Offences (Amendment) Act 1992 and I have no intention of breaching that right. That right however exists independently of the Inquiry and is not affected by the presence or absence of a confidentiality undertaking. The Act is however irrelevant to any information that might be provided by the Inquiry that does not disclose the identity of victims, and so the requirement for a general confidentiality undertaking is disproportionate to the aim of assuring victims' anonymity where this has not already been waived.)

2. What legal grounds does the Inquiry have for refusing to provide documentation to a core participant in the absence of such an undertaking?

3. The terms of reference to the inquiry require you to "Conduct the work of the Inquiry in as transparent a manner as possible, consistent with the effective investigation of the matters falling within the terms of reference, and having regard to all the relevant duties of confidentiality". Given this instruction from the Home Secretary, and subsequent emphasis by the Home Affairs Select Committee and others on the importance of transparency in this inquiry, what practical justification is there for imposing on core participants a blanket duty of confidentiality over "all documentation provided ... by the Panel, their secretariat or legal team"?

4. The previous chair of the Inquiry, Justice Lowell Goddard, said in her opening statement on 9 July 2015: "When I accepted my appointment, I said that I was committed to ensuring the Inquiry’s work would be conducted as transparently as possible, and that I would make public statements at regular intervals so that it does not become remote from the public it exists to serve. The principle of transparency is reflected in the terms of reference for the Inquiry and I intend to ensure that this is faithfully implemented. Some aspects of the Inquiry’s work are of course confidential for good reason. However, I am determined to put as much information into the public domain as I properly can, as soon as I can." Has there been any change from this position by the current Panel, and if not, in what way is the demand for a blanket confidentiality undertaking by the Inquiry consistent with this publicly stated approach?

5. In the example of the submission from CTI to the chair about Ealing Abbey etc which will be discussed at the hearing on 6 June, in what way is a requirement to keep this document confidential justified given the Terms of Reference and the promise made by the previous Chair? In other words, what harm is done to "the effective investigation of the matters falling within the terms of reference"?

6. In an article in the Guardian in November 2014, before the inquiry was made statutory (https://www.theguardian.com/commentisfree/2014/nov/04/child-abuse-inquiry-transparency-trust), I emphasised the need for transparency, stating "Child abuse survivors, particularly those abused in institutional settings, are often highly mistrustful and obsessively motivated. It’s hard for those not abused in childhood to understand how devastating it is to be so thoroughly betrayed by the very adults and authorities on whom you depend for your care, and how profoundly that affects your ability to trust anybody in later life." Given the very real and justified reasons for abuse survivors to mistrust those in authority (including the Inquiry itself), have you considered the psychological effect on survivors of requiring them to sign what will be interpreted by them as a gagging order?

7. You should note that from their point of view this requirement will almost certainly be regarded as a hostile act which will undermine their trust in the inquiry.  Their interpretation of this hostility (which exists whether or not you consider it to be rationally based) will hardly be lessened if the documents they are required to keep confidential include proposals that adversely affect their right to be heard in public hearings. In light of the need to maintain the trust of the survivors, have you considered the extent to which such confidentially requirements are likely to be profoundly counterproductive to the work of the Inquiry?

8. Whatever the legal justification (or lack thereof) I can see a practical need to ensure that evidence to be put before the inquiry is not raked over in the press prior to the Panel hearing it. As a practical measure I would have no objection to giving a confidentiality undertaking with regard to evidence not yet in the public domain that will be put before the inquiry in public hearings, until such time as documents containing this evidence are referred to in hearings and are thereby made public. In your view, would such a modified declaration for core participants be a reasonable approach to this matter, and if not, why not?

9. Given both the importance of the subject matter of this Inquiry and the very large sums of public money being spent on it, there is a strong public interest in ensuring that the Inquiry can be held to account by the public in its conduct, notwithstanding its independence from government. Therefore there is a strong justification for making public documents that relate to the Panel's conduct of the inquiry, such as (in the current case) proposals to reduce the previously publicly stated scope of the Inquiry's investigations. What countervailing justification can you offer for requiring that such documents be kept confidential even for a limited time?

10. Have you consulted with the Victims and Survivors Consultative Panel regarding this aspect of the Inquiry's engagement with survivors, and did you follow any advice they gave? If not, why not?

11. Please ensure that the VSCP's advice is sought prior to giving your response to the issues raised above, since this issue falls squarely within the VSCP's terms of reference in providing advice to the Inquiry on how to relate to survivors.

12. Please note that I as a core participant will not accept a response from the Inquiry on these points that is marked "Private and Confidential". These points are not confidential and are part of a conversation in which there is an entirely justified public interest, and I will not correspond on a private footing on public interest matters. There is and can be no question of my approaching you for some kind of consent to publish your reply or any future correspondence on this topic.

Martin Smith sent a reply. It was addressed to my solicitor and marked "Strictly Private and Confidential".

Because I'm barred from receiving documents from the inquiry unless and until I sign the confidentiality undertaking, he had to check with Smith whether I was in fact permitted to see his reply at all. Eventually it was confirmed that I could see it. I'll publish and comment on it as soon as possible. It's pure Sir Humphrey Appleby.

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