7. Submission by Ms Twite

Ms Twite: Yes, thank you, my Lady.

My Lady, I represent the children rights organisations, and they include Save the Children Fund, Just for Kids Law, and the Children’s Rights Alliance for England. I’m instructed by Just for Kids Law with pro bono support from Norton Rose Fulbright.

Can I start by giving two thank yous to your team. Firstly to the operations team, who I know have been working behind the scenes this morning to resolve technical issues and have been of great assistance to me. And secondly to your legal team, as in the past couple of weeks there has been correspondence between the children rights organisations and your legal team and we have managed to resolve a number of issues between us, which does mean that both our written submissions to the Inquiry for today’s hearing and my oral submissions are shorter than they otherwise would have been.

But we do feel the need to emphasise, whilst of course acknowledging the enormity of the task you are team faces, that engagement with our team is critical to meet the still ambitious timetable that your Ladyship has set, and we hope that this level of engagement does continue going forward.

As we set out in our written submissions, there are still a number of issues that we need to thrash out regarding Relativity, and we have invited a short meeting between the relevant members of your team and Epiq to deal and iron out some of those outstanding issues. I don’t intend to address you on those today, my Lady. You have our written submissions on Relativity and I don’t intend to repeat them, or to repeat all of our written submissions generally, although of course we do still rely on what is said in them. But I know that you and the Inquiry team have them and will consider them.

What I do want to do shortly today in the time I have is to address the two main areas, and those are, firstly, the scope of Module 2 and the list of issues that was helpfully suggested by Mr Keith this morning, and, secondly, to address you on the listening exercise.

Before I come to those main points there are two very short points about process that I wish to make. Firstly, about Rule 9 requests. In company with others we have previously requested disclosure of the actual Rule 9 requests. We still do make that request but we don’t intend to repeat the submissions that we have previously made upon that.

However, we have in correspondence and in our written submissions requested for a number of other ministers and other bodies to be sent Rule 9 requests. We are grateful for the indication that from Mr Keith that those suggestions are being considered. What we ask is that we are informed as to whether or not those requests have been acceded to, so we can understand the reasons behind whether or not a certain body is receiving a Rule 9 request that we suggested should do and we can make further submissions if and where appropriate.

I think I’m right in understanding from Mr Keith this morning that no Rule 9 request has been sent to the MOJ that is relevant to the scope of this module, of Module 2. We did invite such a request to be made to the MOJ, so if the Inquiry team are not intending to do so, we ask that we be informed, that the course could be done in the monthly update note, so that we understand why not and we can, as I say, make further submissions where appropriate.

The second short point I wanted to make was to endorse a suggestion by Mr Keith that there is an earlier preliminary hearing this summer. We would ask that thought be given to listing that earlier than July, as that would potentially be just before a time when I imagine a number of people will be taking a summer break, and we are concerned that in practice that might not achieve much more than the September hearing. But we ask that that is something that the Inquiry give consideration to.

If I can I will move on to the two main submissions that we wanted to make orally today. The first being – concerning the scope of Module 2 and how the list of issues plays into that.

Mr Keith this morning invited a direction from you that a list of issues for Module 2 be provided either in late April or early May. We welcome this. This would be immensely helpful to our preparations. But we would also welcome the opportunity to feed into the list of issues ourselves and not be provided or presented with a final definitive list. That might mean, for example, that a draft be circulated earlier. We leave the details of that up to the Inquiry. But we would be grateful for some directions or indications on that point as to how the Core Participants feed in to what would be an appropriate list of issues for this module to consider.

Again, for example, we note that there was a suggestion from Mr Keith this morning that decisions made about custodial settings would not be considered within this module. I understand that is perhaps the rationale behind the lack of Rule 9 requests for the MOJ.

We ask, along with others we note, for further information about this decision. We had considered that decision making concerning children in custody would be properly within the scope of this module. And this may be exactly the sort of issue that is properly considered by us being provided with a provisional list of issues that we can then provide comments or submissions on.

Having said that, there are a number of points I wanted to make today about the scope of this module. Firstly, in relation to children, whilst we would welcome the opportunity to provide more details about exactly how this module should consider the impact of children, in brief we anticipate that the list of issues will include how children were considered, and of course it will need to include whether and how decision making considered the impact on children, including how that decision making dealt with children who had protected characteristics, whether those rights were sufficiently prioritised, and also look at the quality of that decision making, which is not only about how those decisions were made and how children’s rights were considered, but also the evidence or the expertise used to feed in to those decisions.

We hope this is something that we can flesh out further by providing more details about the list of issues, which we hope to be provided for by your Inquiry team.

Secondly, there is a question about how this module fits in with later modules, and that’s particularly true when it comes to children. As we understand it, there is likely to be more detail forthcoming in early summer of this year about the scope and detail of future modules. And we understand that one of those modules will consider in particular children, the impact on children, and education. We invite your team to provide us with as much information as possible about what issues might be covered in those, because of course what issues are considered in Module 2 in relation to children will be affected by what issues are considered in a later module. And whilst it is inevitable that there may be some overlap, it is of more concern to us that there may be inadvertently a gap in what is considered and what we invite this – the Inquiry to consider in this module will inevitably be impacted by that.

So the more information that can be provided to us about that earlier on, the easier that exercise will be. Then, of course, there will be a further question about how this module and that later module interact in particular concerning the rights of children.

Thirdly, when considering the scope of this module, there is, of course, a concern raised by a number of people about how inequalities and protected characteristics are being addressed. That of course includes children. It also includes structural racism. We welcome your clear commitment today, and indeed throughout this Inquiry, to keeping equalities at the forefront of this Inquiry and the forefront of each module. The question, however, that we pose is not whether or not that will be achieved but how it is to be achieved. And we wish to make some short points about that.

The first point we make is that it is important not to conflate structural racism with institutional racism. We endorse, and I don’t need to repeat, the excellent points made by Anna Morris, who addressed you before the luncheon adjournment, about the importance of structural racism, which we also consider to be relevant to the children’s rights organisations.

In our view it is essential to consider the impact of that structural racism as part of the commitment that you have made to consider inequalities throughout this Inquiry.

We also invite the Inquiry to set out its approach into how matters related to inequalities and protected characteristics will be addressed. This could be done by using the structure of an equalities impact assessment on the Inquiry’s approach itself. Having a clear outline of how it will be addressed will allow a transparent consideration of the Inquiry’s approach to considering structural racism and, indeed, any other structural discrimination that is relevant to this Inquiry.

Further, we invite the Inquiry, in setting out its approach, to consider not only individual protected characteristics but also how it will consider the intersections between different equalities, including the intersection of being a child and having another protected characteristic.

In addition to the protected characteristics of the Equalities Act, we also invite the Inquiry to consider inequalities caused by socio-economic disadvantage. Whilst there is no legal duty to do so in England, unlike in Wales and Scotland, this would be clearly material to the content of this Inquiry and your Ladyship’s priorities, and would help to demonstrate the commitment to inequalities in this Inquiry.

In setting out the Inquiry’s approach to how inequalities will be considered, one question, of course, is what evidence and what expertise will be needed in order to inform the approach?

We heard some detail of that from Mr Keith this morning. That was helpful and we are grateful for those indications. But we do endorse the proposal from other Core Participants that an expert on structural racism would support and assist your work. We ask, however, that be considered in the round about all structural consideration, the other protected characteristics, and it would be considered fully as to what expertise does need to be brought before the Inquiry, and indeed in which modules it is more appropriate to bring them in.

I turn now to the second point to make, which was concerning the listening exercise. Your Ladyship knows that this has been a particular interest and importance to the children rights organisation, as indeed to other Core Participants, and we have heard a great deal this morning and we welcome the further information and further clarifications. We also welcome the overall approach and the commitment to enabling a range of channels and specific outreach to seldom heard communities, as well as the commitment to a trauma-informed approach. We look forward to some of our further questions being answered in the webinar that’s being proposed, and we don’t doubt that your team have been working hard on this aspect as well as other aspects of the Inquiry.

However, the children’s rights organisation do wish to express the disappointment that so far no children have been heard from, and we still are not clear how or when they will be. We have asked for more information and we have asked for further explanation as to how children will be able to participate going forward. We know they are not able to participate in the web form that’s currently available on the website. And whilst a number of channels were suggested by Mr Keith this morning as to how participation will be facilitated, many of those channels would not be appropriate for children to participate in. We are concerned that if there are limited ways in which children can participate then that will limit the number of children who do participate.

We asked the question about a hypothetical child, such as a ten-year old who wasn’t able to go to school, living with no garden, and maybe who experienced racial discrimination, how would such a ten-year old contribute to the listening exercise, how would they know about it and how are they going to be supported?

So we have asked for more detail, because whilst we accept that the aims and the commitment are laudable, just like many of these commitments, the devil, I’m afraid, is in the detail, and therefore we do welcome further information, as we have set out in our written submissions, and we thought it helpful to set out some of the additional information that we are requiring and why.

Firstly, we ask for it to be clear what the stated objectives of the listening exercise are. Whilst of course it is understood the importance of hearing from people and them feeding in to the Inquiry, in our submission, to be an effective exercise, there needs to be explicit stated objectives as to what that is achieving. And following from that, understanding how that will feed into the Inquiry and impact on your Ladyship’s decisions.

We have heard today that reports will be considered. We ask whether or not those reports are realistically going to be ready prior to the hearings in Module 2. And again, if they are, how it is proposed they feed in to them.

Following on from that question is, of course, the question of whether or not a proposed timetable is yet in place.

Finally, we ask for a commitment that the tendering exercise for this phase will ask for specific expertise in engaging children and whether that was part of the procurement process.

My Lady, we know that you understand how important it is to engage children in this process, and so we ask, as I say, for those details so that we can assist and hope that we can collaborate in ensuring that the listening exercise is as effective as you aim it to be.

So, in summary, we are inviting directions about the service of key issues – of the service by your Inquiry team of the list of key issues, as well as a direction or some indication about how the Core Participants feed in to determining that.

Further, we endorse and invite the direction of an earlier preliminary hearing, as well as an outline of how the Inquiry is intending to approach the issue of the impact of inequalities, and further detail on the listening exercise, which we understand is probably already forthcoming.

My Lady, unless I can assist you any further, those are the submissions on behalf of the children’s rights organisations.

Baroness Hallett: Thank you very much, Ms Twite, that’s very helpful, and you’ve raised a number of matters that we must consider very carefully. I do understand the concern about the overlap between this module and later modules, and I mentioned the overlap I think yesterday, but I welcome your offer of assistance to make sure there aren’t any gaps and that matters don’t fall between the two modules.

As far as the comment you make about ensuring that children are heard, yes, I totally and utterly believe in that. I also, as I think you’ve heard me say before, believe in acquiring or obtaining accounts from children as soon as possible. I have done a lot of work involving child witnesses over the years and I know how memories can fade. Adult memories can fade but it is even more important with young children to get their accounts recorded as soon as possible, and I promise you I have given specific instructions to the team to that effect. So we will do what we can. But I appreciate it must be frustrating when months are going past and you can’t see the result as yet, but I hope you will be able to learn the answers to some of your questions very soon.

So thank you very much indeed for your help.

Ms Twite: Thank you, my Lady.

Baroness Hallett: Right, I think it is Ms Davies next, please.