Returning to this case (see post dated 30 April), let’s shift our gaze from the subjects to the legal process. Whatever his conclusion, the judge is the judge. Our deferential society tolerates that. Justice Foskett’s ruling stands (until and unless overturned on further appeal), whatever Barry Sheerman MP might think. And that’s part of the problem. Though deeply considered and having had the balance of evidence weighed, such rulings ultimately remain arbitrary. The judge has to come down on one side or another. Compare that with outcomes in tribunals, where one judge will frequently reach a minority conclusion. The design of the judicial appeal process is shaky in cases like that of Shoesmith. It is time to question this highly individualist and outmoded process and replace it with something better.
The purpose of the judicial review was effectively to decide right from wrong. Shoesmith would win or lose. Ofsted would be damned or cleared. Ed Balls’ reputation would be saved or dammed. But where are the shades of grey – on the one hand this, but on the other hand that? Shoesmith herself contributed to that starkness. When she smugly claimed that her department had been completely exonerated and had done nothing wrong, she damaged her own cause and brought accusations of a cavalier approach to Baby P’s death. She also lessened the possibility of learning – both for herself and for her department and organisation.
Shoesmith no doubt made mistakes. But her case could have been handled in a more dignified and sensitive way. In a revised appeal process the aim could have been that the organisation and all parties would learn – not be found innocent or guilty, or retain or lose one’s job. Where is the scope for organisational learning in a judicial review? The main lesson is ‘Don’t trust such a legal process’.
The judge recommended discussions take place between central government, councils and directors of children’s services in order to “establish a protocol for dealing with this kind of situation if it arises in the future”. Some good, some change and some learning might come out of that. We must hope so.
Tomorrow, what might Ed Balls have done differently?