Power politics can be brutal to those perceived as prejudicial. A former Archbishop of Canterbury found this out to his cost. For in December 1170, Thomas Becket was murdered at Canterbury Cathedral in apparent compliance with the wishes of King Henry II, with whom he had had a series of conflicts.

According to oral tradition, Henry had said: 'Will no one rid me of this turbulent priest?’ Four of his knights then rode out to confront Thomas, resulting in his murder. Fortunately, the Archbishop of Canterbury, Rowan Williams, was recently spared this fate when expressing public disagreement with government policies.

Sharon Shoesmith, former Haringey director of children’s services (DCS), did suffer a less physical, but nevertheless unhappy, engagement with power politics after the Baby P affair. After the conviction of Baby Peter’s mother, her boyfriend and his brother on 11 November 2008 for causing or allowing the child’s death, there was a public and media outcry, much of it directed at Haringey Council. This was also the authority area where Victoria Climbie had met her tragic death a few years before.

Ministerial pressure and action

There was clear political pressure at national level. This was illustrated by a House of Commons clash on 12 November 2008 between opposition leader David Cameron and prime minister Gordon Brown. As BBC News reported, although Ed Balls, secretary of state for education, ‘had a completed serious case review on his desk, outlining the many mistakes and problems involved in the care of Peter Connelly,’ nevertheless, ‘apparently to head off a growing storm, he ordered another review led by Ofsted to look at safeguarding practice across the health agencies, police and children’s services in Haringey’.

Balls’ request was made under section 20 of the Children Act 2004 (children’s services inspections – joint area reviews (JARs)) and he requested ‘a first report... by 1 December 2008’. This was clearly a tight timescale.

On the morning of 1 December, Ofsted team members had a meeting with the secretary of state and others. While the report’s aim was to address ‘how the system worked as a whole’, and was ‘not seeking to make, or test, allegations against any particular individuals’, there was criticism by Ofsted officials of Shoesmith and her deputy Cecilia Hitchen. This criticism included the assertion that the DCS ‘has got no grip and relied on a No. 2 who couldn’t hack it’.

Shoesmith had spent her career in education but had no background in social work. Thus day-to-day management responsibility for child safeguarding had been delegated to Hitchen, whose expertise and experience was in social work.

Within hours, the secretary of state had made a direction under section 497A(4B) of the Education Act 1996, installing other persons as DCS and deputy. Following the criminal trial, the Sun had organised a petition which called for the sacking of Shoesmith and others. Responding to a Sun journalist, Balls had said: ‘I undoubtedly recognise the force of the petition from your newspaper, and right across the country many, many people, millions of people have been affected... the result of my direction today to Haringey is that the [DCS] will be removed immediately from her post.

'Her employment relationship is with Haringey and so the normal employment and legal procedures will take place; but I have to say, I think most people will look at this report, look at the clear evidence of management failures, and say that this kind of failure should not be rewarded with compensation or payoffs... That’s a matter for Haringey. I have to say I would be astonished if elected members in Haringey chose to do that, but it’s a matter for them.’

Following the statutory direction, Haringey Council, as the employer, suspended Shoesmith on contractual pay. A disciplinary hearing on 8 December 2008 decided to dismiss her summarily without payment in lieu of notice or compensation of any kind.

The reasons for the dismissal were the direction of the secretary of state and a fundamental breach of trust and confidence. An internal appeal by Shoesmith was rejected on 12 January 2009.

The claim

Shoesmith contended that the Ofsted report failed to comply with relevant procedural requirements and/or was in breach of common law requirements of fairness; that the secretary of state’s direction was unlawful for breach of the requirements of procedural fairness and because he had impermissibly had regard to the Sun’s petition; and that her dismissal by Haringey was unlawful because it was founded on the unlawful direction of the secretary of state and was also procedurally unfair.

Shoesmith had also commenced employment tribunal proceedings but these were stayed pending resolution of the judicial review proceedings. On 23 April 2010 Mr Justice Foskett dismissed all the claimant’s applications, albeit ‘with a lurking sense of unease’.

Court of Appeal

As is well known from the general press coverage following the 27 May 2011 judgment, Shoesmith enjoyed considerably more success in the appeal court before the Master of the Rolls, Lord Justice Maurice Kay (who gave the main judgment) and Lord Justice Stanley Burnton. While the Ofsted element of the claim did not succeed, the direction of the secretary of state was ‘vitiated by procedural unfairness’ and Haringey’s decision to dismiss Shoesmith was unlawful and void.

In relation to Ofsted, the court accepted the approach of Foskett J that ‘within the limits of the very truncated process...’ Ms Shoesmith was ‘kept abreast of what was being revealed during the inspection’ and that he could not ‘see what else, realistically, could have been done’. In the circumstances, fairness did not require of Ofsted any more onerous obligation than to apprise her of the gist of the concerns highlighted by the inspection.

The court did not, however, agree with the conclusion of Foskett J that the approach of the secretary of state was not ‘intrinsically unfair’. Maurice Kay LJ pointed out that Shoesmith was the holder of a statutory office, very highly thought of in Haringey, ‘and the secretary of state must have realised that his decisions would be likely to have catastrophic consequences for her’. While the judge accepted that there was a degree of urgency, he did not accept that this necessitated ‘a truncation of the requirements of fairness to the extent that occurred here’.

And the fact that in creating the post of DCS the 2004 act had as a matter of policy identified one individual with ultimate responsibility and accountability for children’s services, ‘does not mean that that person is to be denied the protections that have long been accorded to responsible and accountable office-holders’.

The judge found it ‘a deeply unattractive proposition that the mere ­juxtaposition of a state of affairs and a person who is "accountable" should mean that there is nothing that that person might say which could conceivably explain, excuse or mitigate her predicament. For "accountability" is not synonymous with "heads must roll"’.

In the judge’s view, ‘accountability... requires that the accountable person is obliged to explain the state of affairs to which it attaches’. And the ‘corollary is that there must be a proper opportunity to do so.

If the explanation is unacceptable, then consequences will follow’. While it was not ‘necessarily unlawful’ for the secretary of state to have taken into account the Sun’s petition given legitimate concerns about public confidence, Kay LJ did not in the circumstances accept that if Shoesmith had been afforded a reasonable opportunity to explain her position it would inevitably have made no difference.

As to Haringey, Maurice Kay LJ referred to the observation of Lord Reid in Ridge v Baldwin [1964] AC 40 concerning ‘an unbroken line of authority to the effect that an officer cannot lawfully be dismissed without first telling him what is alleged against him and hearing his defence or explanation.’

In the view of Lord Justice Kay, ‘if a local authority were to dismiss a DCS in total disregard for the rules of natural justice, I am in no doubt that, whatever alternative remedy might be available in the employment tribunal, the dismissal would be amenable to judicial review’.

The general principle on ‘alternative remedy’ (for example, per Lord Bingham in Kay v Lambeth London Borough Council [2006] 2 AC 465) is that ‘if other means of redress are conveniently and effectively available to a party they ought ordinarily to be used before resort to judicial review’.

In the view of Lord Justice Kay, the alternative remedy was not ‘equally convenient and effective’ and ‘in the unusual circumstances of this case there was much to be said for keeping the claims against the three public authorities within one set of proceedings, which could only be the judicial review proceedings’.

The judge also considered that Haringey had misused the concepts of trust and confidence in its decision to dismiss Shoesmith since the duty is concerned with a fiduciary or quasi-fiduciary contexts. In the judge’s opinion, Haringey’s concern was really related to the claimant’s competence and capability.

In all the circumstances, Shoesmith’s claim for judicial review was upheld and ‘the relief to which [she] is entitled should include a formulation which extends to compensation’. However, this is unlikely to be the end of this particular legal road. For the government has expressed the intention of appealing to the Supreme Court.

The death of Baby Peter Connelly was clearly an appalling and heart-rending tragedy which touched the nation. Shoesmith, as the relevant chief officer at material times, has throughout the process often been maladroit in her public pronouncements.

Nevertheless, she was entitled to be treated fairly and not to be subjected to a politically expedient (and personally devastating) career demise without the basic safeguards of natural justice. It is the responsibility of those in government to be able to resist the calls from the mob and to do the right thing.

As Lord Justice Kay pointed out, whatever Shoesmith’s shortcomings may have been (which he was unable to say), ‘she was entitled to be treated lawfully and fairly and not simply and summarily scapegoated’.

Nicholas Dobson is a senior consultant with Pannone, specialising in local and public law. He is also communications officer for the Association of Council Secretaries and Solicitors