Monday, 30 May 2011

"Accountability" is not synonymous with "Heads must roll" - but are there really constitutional issues at stake?

Appeal from Judgment of Foskett J -R (Shoesmith) v Ofsted and others [2011] EWCA Civ 642

The Court of Appeal found against the Secretary of State.  The court also found against Haringey London Borough Council but found in favour of Ofsted in relation to the Joint Area Review urgently conducted in November 2008.  See The Guardian 28th May – “Sharon Shoesmith ruling: welcome but few cheers” and “Local Government Lawyer” 27th May.

A Spokesperson for the government said:

“The Government thinks that it was right in principle for Sharon Shoesmith to be removed from her post as Director of Children’s Services.
“There are questions of constitutional importance involved in this case, beyond the specific question about whether Ed Balls should have had a further meeting with Sharon Shoesmith before removing her.
“Our initial application to appeal has been turned down by the Court of Appeal. We intend to pursue an appeal to the Supreme Court.”

This was the reaction to the Court of Appeal decision in the judicial review brought by Sharon Shoesmith (former Director of Children Services at Haringey) against Ofsted, the Secretary of State and Haringey Council – see The Telegraph 28th May 2011.  Few people would disagree with the point that, in principle, Sharon Shoesmith had to be replaced.  As Director of Children Services at Haringey, the buck stopped with her and serious failings were identified in relation to her Department.  Nevertheless, others cannot claim to emerge unscathed and that must include the Rt. Hon. Ed Balls MP who, at the time, was Secretary of State for Children, Schools and Families.   The Judicial Review found Mr Balls wanting in relation to HOW he went about his decision-making.  The review was not concerned with the merits of Mr Balls' actions.

The case does not, as such, raise questions which might be considered to be of constitutional importance so it is necessary to ask just what is in the mind of Ministers in the present government.  They appear to see judicial review as the judiciary exercising too much power and they are seeking ways to stem such judicial activism.  The setting up of the Committee to consider a UK Bill of Rights may also be seen as part of this governmental agenda.

Where the real responsibility lies for Baby-P’s death

Those with whom Baby-P lived carry the direct responsibility for his death.   Tracey Connelly (Baby-P’s mother) pleaded guilty to causing or allowing the death of a child – Domestic Violence, Crime and Victims Act 2004 s.5.  Her boy friend Steven Barker and a lodger (Jason Owen) were convicted on 11th November 2008 of the same offence.  Connelly was given an indeterminate sentence of imprisonment with a minimum term of 5 years.  An appeal was abandoned.  Barker was sentenced to 12 years imprisonment – this sentence to run concurrently with life imprisonment (minimum 10 years) for the rape of a child aged 2.  He later lost an appeal against the rape conviction.  Owen was sentenced by the trial judge to an indeterminate sentence of imprisonment but this was altered on appeal to a determinate sentence of 6 years.

The Court of Appeal decision

The conduct of the Joint Area Review and the actions of Ofsted are addressed at paragraphs 14 to 38 of the Court of Appeal judgment.  Given that a Joint Area Review process normally took in the region of 5 months, Ofsted clearly operated under considerable pressure and produced a report between 13th and 28th November 2008.  Despite the omission of some stages normally included in the JAR process (e.g. feedback meetings), the court found that Ofsted acted bona fide and had carried out an open-minded inspection.  In accordance with their remit, the report did not attribute blame to any specific individual but serious concerns were raised in relation to the safeguarding of children.  It should be noted that the report was critical across the board.  Social care, health services, the Police - all came in for criticism.  Nevertheless, some questions remain:
  • Government sources required civil servants to keep in contact with the JAR team and they asked for "definitive evidence on which the Minister can act" - (Court of Appeal at para 30).    The full nature of government involvement with the various Inspectors remains unclear.  (It must have been obvious that the government - itself under intense media pressure - wished to see someone's head roll).  The Court of Appeal (para 24) pointed out that, around 19th November 2008, government officials asked Ofsted to include specific reference to the Baby-P case in their report.
  • Once the report was issued, the Children's Minister (Mr Balls) met with the inspection team on 1st December 2008 and things were said to him which were not included in the actual JAR report - (Court of Appeal paras. 22).  Strictly, given that those things were critical of specific persons, they could not have been properly included in the official Ofsted report.  It is therefore questionable whether such things should have been said to the Minister at a meeting to discuss the report
  • Later the same day there was a Press Conference at which the Minister stated that he was using his statutory power to remove Sharon Shoesmith from her post.  This suggests either an instant decision was taken without full consideration of the report or it indicates the announcement of a preconceived decision for which the report was merely the required ammunition.  It also indicates that the Minister wished to appear tough and decisive before the media.  One might think that this is a regrettable trait of many a modern Minister.
  • The Press Conference was held before the Minister had taken what might be thought to be the proper constitutional step of informing Parliament - (Court of Appeal 44 refers).  Furthermore, Mr Balls got some of the facts relating to the JAR Report wrong - (Court of Appeal 44 and 45)
  • Representatives of Haringey Council met with Ofsted representatives on 1st December 2008 and managed to secure a change of wording to the report -(Court of Appeal 23).  Shoesmith was excluded from this meeting.  A criticism of “members and senior officers” in relation to a failure to secure full compliance with the Climbie Inquiry recommendations was amended to simply “managerial failure.”
  • The JAR criticised Ms Shoesmith for Chairing the Local Safeguarding Children Board (LSCB) when in fact, official guidance at the time indicated that it should be chaired by the Director of Children Services (DCS) - (Court of Appeal 42)
  • The 2008 JAR report also contrasts markedly with a routine JAR conducted in 2006.  The 2006 Report - (see here) - had much to say which was complimentary and stated (para 53) that "child protection work is generally of a satisfactory standard" and also noted (55) that the Local Safeguarding Children Board (LSCB) had been established well in advance of the national deadline and the Board has an ambitious programme and good ownership of the wider safeguarding agenda with procedures in place to review serious incidents.  The fact that Haringey had a high staff turnover in social service work was noted at para 54 of the 2006 report.
  • It appears that the 2008 JAR Report was seen in some quarters as an interim report but somehow it became the final report - (Court of Appeal 24). Ofsted fieldwork had been conducted on the understanding that there would be an initial report which would, presumably, be followed up by a fuller final report.  This change is not explained.
Overall, Ofsted had carried out a bon fide and open-minded inspection and they had "gisted" the report to Shoesmith.  The Court of Appeal considered that this was sufficient.
    The Court of Appeal's judgment in relation to the Secretary of State is at paras. 39 to 75.

    The details of Mr Balls' Press Conference of 1st December 2008 are set out at paras. 44-47 of the Court of Appeal judgment.  Shoesmith first heard of her removal by the Secretary of State when she saw the conference on TV - (Court of Appeal 48).  Haringey suspended her the same day and confirmed in writing on 2nd December.  Her appeal rested on three arguments:
    • Mr Balls had accorded her no procedural safeguards whatever before making the directions of 1 and 19 December which effectively ended her career.  (On 19th December, Mr Balls appointed Mr Peter Lewis to be DCS from 1st January 2009 - a move which clearly obviated any possibility of Shoesmith returning to the post)
    • It was impermissible for Mr Balls to take into account The Sun's petition
    • Foskett J was wrong to conclude that, even if there was procedural unfairness, the Secretary of State would have come to the same conclusion and made the same directions if procedural unfairness had been absent. 
    The Court's role was to look objectively at all that had happened (para 61).  With regard to procedural unfairness, Maurice Kay LJ stated at 61 and 62:

     Whilst I accept that there was a degree of urgency, I do not accept that it was such as to necessitate a truncation of the requirements of fairness to the extent that occurred here. The question one has to ask is how much delay would have been occasioned by according Ms Shoesmith an opportunity to answer the charge. It seems to me that, as at 1 December, the delay need not have been more than modest and, in relation to 19 December, it may have been non-existent. This is not a case of a front-line social worker who may cause damage to individual children. It is one of a DCS, more than a year after the death of Peter, in circumstances where, one way or another, the position could have been safeguarded for sufficient time for fairness to be observed. 

     The fact that the Secretary of State wrongly assumed that Ms Shoesmith had had the opportunity to put her case, including her case on personal responsibility, to the OFSTED team does not avail him. The question is whether the procedure, taken as a whole, was objectively fair, not whether the Secretary of State honestly believed that it was fairer than in fact it was. 

     The argument relating to The Sun's petition was dismissed in one paragraph:

    I have little to say about the Secretary of State's regard to The Sun's petition. For my part, I do not consider that it was necessarily unlawful for the Secretary of State to have taken it into account. The context is different from the quasi-judicial context in R v Secretary of State for the Home Department, ex parte Venables [1998] AC 407. He was legitimately concerned about public confidence and the petition may have had some modest value in that respect. However, it is unlikely that many of its signatories were aware of the complexities of employment law when they demanded dismissal without compensation. I now turn to the more important matter of the Judge's   "no difference " finding. 

     Thus, the extent to which media pressure influenced Mr Balls remains unanswered.  It may be that such pressure had a greater influence than anyone is actually prepared to admit.  To dismiss the Sun’s petition as having "modest value" may be questionable.

    Legally, the more difficult argument related to the judge's finding of  "no difference."  This is dealt with at paras. 69-74 but a reading of para 72 seems particularly important because it sets out the background in which Shoesmith worked.  Could it be properly said that, if Shoesmith had been allowed to make representations, nothing she could have said would or could have made a difference?  The Court of Appeal concluded that it was not possible to reach that conclusion.

    The judgment in relation to Haringey is at paras. 76 to 127. 

    It was Haringey Council and not Mr Balls who had terminated Shoesmith's employment.  It was done summarily and without compensation or payment in lieu of notice.  (Disciplinary hearing 10/12/08, Appeal Panel 7-12 January 2009 and dismissal letter 19/1/09).  On 6th March 2009 Shoesmith issued judicial review and also commenced proceedings in the Employment Tribunal.  The tribunal proceedings were stayed pending the outcome of the judicial review.
    Haringey's case was that it had no alternative but to act as it did in the light of the OFSTED report and the Secretary of State's statutory intervention.

    Two threshold issues had been raised before the Judge: (1) Was Haringey's treatment of Ms Shoesmith amenable to judicial review? (2) If so, ought the application to have been entertained in view of the alternative remedy available in the Employment Tribunal?   Foskett J had held that they were amenable to review but that the alternative remedy was adequate.  Held by Court of Appeal - (1) Haringey was amenable to judicial review (paras. 77-91) and (2) the alternative remedy in the tribunal was not, in all the circumstances, equally convenient and effective.

    Next comes what is perhaps the most difficult legal question in the appeal relating to Haringey basing its decision to dismiss Shoesmith on the earlier decision of the Secretary of State.  In January 2009, Shoesmith had an appeal against dismissal heard by a Panel of three Councillors.  It was pointed out to them that the decision of Mr Balls was considered by Shoesmith to be unlawful.  The panel declined to rule on this and stated in their reasons for finding against her that there was no reason to suppose that Mr Balls had not made a valid and lawful decision (Court of Appeal 107).

    Put in neutral terms, the point of law is - "Decision-maker X reaches a conclusion on a particular matter.  A second decision-maker Y decides another matter on the basis of X's decision.  X's decision turns out to be unlawful.  Is Y's decision also unlawful."  In some situations, Y may not even be aware of any legal problem relating to X’s decision.  Alternatively, Y might be aware that there is a problem or that there may be a problem.

    This is a question which has troubled administrative lawyers for many years and no clear answer can be stated with complete confidence.  It is discussed in the Court of Appeal's judgment at 111 to 119.   Maurice Kay LJ concluded:

    "Although, at least by the time of the internal appeal hearing in January 2009, Haringey knew that Ms Shoesmith did not accept the lawfulness of the Secretary of State's direction, it was not for an internal disciplinary panel to rule on that.  Haringey was entitled to take the direction at face value.  Whilst it would have been open to Haringey to challenge the direction by way of judicial review, it is not suggested that it was obliged to do so.  Nor had Ms Shoesmith  yet commenced proceedings in the Administrative Court, so no question of adjourning the internal proceedings pending determination of an application for judicial review arose.  For all these reasons, I do not consider that the application for judicial review against Haringey succeeds simply because it acted on an unlawful direction."

    Plainly, this part of the Court of appeal's judgment may probably require the Supreme Court's attention so that the relevant legal principles can be clarified.  However, one moral in the story is that decision-makers need to be careful in making decisions based on the decisions of others when it is known that the latter is open to question.

    From para 120 there is discussion as to whether Haringey had been entitled to base the dismissal on a "trust and confidence" basis.  The Court held that Haringey's concern related to Shoesmith's competence and capability rather that as to trust and confidence in the correct sense.  Foskett J had decided that the decision to dismiss was judicially reviewable and he had decided this on the basis of 5 points set out at Court of Appeal para. 122.  The very appearance of a predetermined dismissal without notice or payment in lieu seemed to the Court of Appeal to be sufficient to make good the charge of unfairness.

    In this section of the judgment, the Court of Appeal was careful not to tie the hands of the Employment Tribunal in relation to the stayed unfair dismissal proceedings.

    Shoesmith's application for judicial review against Haringey therefore succeeded (127).

    The court then considered the relief to which she was entitled (128 to 132).

    Against the Secretary of State a declaration that insofar as they purported to remove Ms Shoesmith from the position of DCS, the directions were unlawful.  Against Haringey - a declaration that the dismissal was unlawful coupled with compensation.  The case was remitted to the Administrative Court to determine the compensation element but the hope was expressed that it might be settled by agreement or by mediation (para 132) and that the Secretary of State might be asked to make a "voluntary contribution" given that his unlawful directions gave rise to the problems.  Concurring judgments of  Stanley Burnton LJ and the Master of the Rolls are at 136-139 and 140-149.  (They expressed some disagreement with paragraph 120 of Maurice Kay LJ’s judgment).

    Working Together – Safeguarding Children - Guidance

    In 2010 a new version of Working Together to Safeguard Children was issued.  The revised Guidance has not escaped criticism – see Community Care February 2010.  It is notable that the 2010 document at para 3.52 states that there is a presumption that the Chair of a Local Safeguarding Children Board will be independent of the local agencies.  Despite criticism by Ofsted that Shoesmith had chaired the Haringey LSCB, this goal of independent chairs has not yet been achieved nationally though it will be eventually.

    Constitutional issues?

    The tragic case of Baby-P raises serious questions as to how the State seeks to protect vulnerable children and how it responds when a tragedy occurs.  The true responsibility for Peter's death has to rest with those who were supposedly there to care for him and who managed to avoid social service and Police challenges to their conduct.

    After the dismissal of Shoesmith there was a second Serious Case Review carried out on the direction of Mr Balls.  Paragraph 5.3 of this is worth noting - "The uncooperative, anti-social and even dangerous parent/carer is the most difficult challenge for safeguarding and child protection services ..."

    In the present financial climate, the government would do well to ensure that Child Protection Services are fully resourced and, if the turnover of social work staff still exists, to take whatever steps are practicable to prevent it.  Continuity in case management is as important as objective oversight of the work of individual social workers.  Both are essential ingredients.

    So, just what constitutional issues are raised here beyond the need for Ministers to announce decisions to Parliament and not the media?

    It seems that the present government is concerned to restrict judicial review.  Here we are in dangerous territory.  Surely, the most important constitutional point is that Ministers must act in accordance with law.  Even at the time of the Baby-P case, the Secretary of State had far reaching statutory powers but the problem was the manner in which he exercised them.  He failed to ensure that Shoesmith was given an adequate opportunity to make representations about his proposed courses of action.  Here is the fundamental unfairness which it is the purpose of judicial review to rectify.  Should this case reach the Supreme Court of the United Kingdom, it is to be hoped that the court asserts the necessity for judicial review to continue to play its crucial role.

    See also - UK Human Rights Blog - Adam Wagner - "The power of unelected judges - Part 1 of 2"

      1 comment:

      1. ---------------------STOP PRESS---------------------
        Public Employee tells minister that the law says that public employees cannot be sacked without 'due process'.
        ---------------------STOP PRESS---------------------